Opinion
Case No: C 11-5486 SBA
03-11-2013
FELIPE CALDERON, Plaintiff, v. DAVEY TREE SURGERY COMPANY, Defendant.
ORDER GRANTING PLAINTIFF'S
REQUEST FOR APPOINTMENT
OF COUNSEL
Plaintiff has submitted a pro se request for the Court to appoint counsel to represent him in this action. Dkt. 92 at 2-3. "[I]t is well-established that there is generally no constitutional right to counsel in civil cases." United States v. Sardone, 94 F.3d 1233, 1236 (9th Cir. 1996). Nonetheless, under 28 U.S.C. § 1915(e)(1), the Court has the discretion to appoint counsel to "any person unable to afford counsel." The discretionary appointment of counsel typically is reserved for cases involving "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both 'the likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these factors is dispositive and both must be viewed together before reaching a decision." Id.
Here, Plaintiff is unable to communicate in English, which necessarily impedes his ability to articulate his claims to either the Court or a jury. Although Plaintiffs motion does not specifically address his likelihood of success, the Court notes that the law and motion cut-off lapsed without Defendant filing any dispositive motion in this case. Dkt. 17. Given that fact, it is reasonable to infer that there are triable issues of material fact that must be resolved by a trier of fact. Moreover, the Federal Pro Bono Project, has indicated that it is likely that it will be able to find a volunteer attorney to represent Plaintiff in this action. Accordingly,
IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion to Appoint Counsel is GRANTED.
2. This matter is REFERRED to the Federal Pro Bono Project for the purposes of securing legal representation for Plaintiff in this action, for all purposes.
3. The instant action is temporarily STAYED while the Federal Pro Bono Project locates volunteer counsel for Plaintiff.
4. The deadlines for filing motions in limine and other pretrial documents, the settlement conference set for March 25, 2013, the pretrial conference date of May 7, 2013, and the trial date of May 13, 2013 are VACATED. These dates shall be rescheduled at a further Case Management Conference which will be scheduled after the appointment of pro bono counsel.
5. This Order terminates Docket 47, 51 and 54.
IT IS SO ORDERED.
_________
SAUNDRA BROWN ARMSTRONG
United States District Judge
FELIPE CALDERON, Plaintiff,
v. DAVEY TREE SURGERY COMPANY et al, Defendant.
Case Number: CV11-05486 SBA
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 11, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Felipe Calderon
4322 Center Avenue
Richmond, CA 94804
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk