Russell Elliot and Nelly Elliot v. Spe Terra Nova Apartment Owners LLC., et. al
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Plaintiffs Russell and Nelly Elliott moved for the appointment of counsel or, in the alternative, a guardian ad litem for their minor children in a civil action. The Court denied the motion, finding that the plaintiffs had not demonstrated the 'exceptional circumstances' required for appointment of counsel and that their continued prosecution of the case negated the need for a guardian ad litem.
| What the court decided | The model |
|---|---|
Denial of Plaintiffs' Motion to Appoint Counsel“Accordingly, the Court DENIES Plaintiffs’ Motion (ECF No. 104).” | agree with court The court correctly applied the Ninth Circuit's two-factor test for appointing counsel in civil cases (likelihood of success and ability to articulate claims). The court found that the plaintiffs had not demonstrated 'exceptional circumstances' because they had been able to continue prosecuting the case and articulating their claims pro se. This is a defensible application of the law based on the record recited in the order. |
Denial of Plaintiffs' Motion for Guardian Ad Litem“Accordingly, the Court DENIES Plaintiffs’ Motion (ECF No. 104).” | agree with court The court denied the request for a guardian ad litem because the plaintiffs were actively prosecuting the case and there was no demonstrated conflict of interest between the parents and their minor children. The court also noted the case did not involve unusually complex facts or legal issues. This is a reasonable exercise of discretion given the lack of evidence of a conflict or inability to represent the minors' interests. |
The order itself: sound — The order correctly identifies the legal standard for appointing counsel in civil cases and applies it to the facts presented. It cites appropriate Ninth Circuit and Supreme Court authority. The reasoning for denying the guardian ad litem request is also sound, relying on the lack of a demonstrated conflict of interest and the parents' active participation in the litigation. The order is concise but sufficient for a procedural ruling of this nature.
Opinion
1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 RUSSELL ELLIOT and NELLY Case No. 24-cv-00447-BAS-JLB ELLIOT, 14 ORDER DENYING PLAINTIFF’S Plaintiffs, 15 MOTION TO APPOINT COUNSEL, v. OR IN THE ALTERNATIVE, FOR 16 GUARDIAN AD LITEM SPE TERRA NOVA APARTMENT 17 (ECF No. 104) OWNERS LLC., et. al, 18 Defendants. 19 20 Before the Court is a motion for appointment of counsel, or in the alternative, for the 21 appointment of guardian ad litem submitted by Plaintiffs Russell Elliott and Nelly Elliott 22 (“Motion”). (ECF No. 104.) For the reasons below, the Court DENIES Plaintiffs’ Motion. 23 (Id.) 24 Unlike criminal defendants, indigents in civil actions have no constitutional right to 25 counsel unless their physical liberty is at stake. Lassiter v. Dep't of Soc. Servs., 452 U.S. 26 18, 25 (1981). Whether a court appoints counsel for indigent litigants is within the court's 27 discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In civil cases, 28 counsel should be appointed only in “exceptional circumstances.” Id. To determine 1 whether exceptional circumstances exist, the court should evaluate two factors: (1) the 2 likelihood of success on the merits of the case, and (2) the ability of the plaintiff to articulate 3 his claims pro se in light of the complexity of legal issues involved. Terrell v. Brewer, 935 4 F.2d 1015, 1017 (9th Cir. 1991). Neither factor is dispositive, and both must be evaluated 5 together. Id. Further, an attorney cannot be forced to represent an indigent litigant in a 6 civil case—rather, the attorney can only be “appointed” if he or she voluntarily accepts the 7 appointment. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) 8 (holding that the appointment of counsel provision in § 1915 does not “authorize[ ] a 9 federal court to require an unwilling attorney to represent an indigent litigant in a civil 10 case”). 11 Here, Plaintiffs Nelly Elliott and Russell Elliott seek pro bono counsel on the basis 12 of their indigence. (ECF No. 104.) However, absent evidence that these factors 13 significantly interfere with Plaintiffs’ ability to prosecute the case, they have not 14 demonstrated “extraordinary circumstances” warranting appointment of counsel. See 15 Olson v. Smith, 609 Fed. Appx. 370, 373 (9th Cir. 2015), cert. denied, 136 S.Ct. 1165 16 (2016) (disabilities); see also Signorelli v. Hughes, 363 Fed. Appx. 455, 456 (9th Cir. 17 2010); (disabilities); Bolton v. Towing, No. 523CV00941JLSAJR, 2023 WL 8168951, at 18 *1 (C.D. Cal. Nov. 9, 2023) (homelessness); Webb v. NaphCare, Inc., 2022 WL 2192977, 19 at *2 (W.D. Wash. Jun. 16, 2022) (homelessness and indigence). Plaintiffs have 20 demonstrated that, despite their adverse circumstances, they have been able to continue 21 prosecuting their case and articulating their claims without the assistance of counsel. 22 For similar reasons, nothing in Plaintiffs’ papers indicates that they will not be able 23 to protect their own interests or the interests of their minor children such that appointing a 24 guardian ad litem is necessary. More specifically, given Plaintiffs continued prosecution 25 of their case, Plaintiffs have not shown a “need for the court to appoint a guardian ad litem.” 26 See Doe ex rel. Sisco v. Weed Union Elementary Sch. Dist., No. 2:13-CV-01145-GEB, 27 2013 WL 2666024, at *2 (E.D. Cal. June 12, 2013) (declining to appoint guardian ad litem 28 where representation of a minor by a parent where there is no demonstrated conflict of | |/interest between minor and parent). Further, at this stage, it does not appear to the Court 2 || that the facts nor the legal issues involved in this case are unusually complex. 3 Accordingly, the Court DENIES Plaintiffs’ Motion (ECF No. 104). 4 IT IS SO ORDERED. 5 6 || DATED: May 4, 2026 (yatta Bahar te 7 H n. Cynthia Bashant, Chief Judge United States District Court 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 □□□