Cotton v. Geraci
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
Plaintiff Darryl Cotton filed an ex parte motion for reconsideration seeking the appointment of counsel and leave to amend his complaint. The court denied the motion for appointment of counsel without prejudice and advised the plaintiff that he may amend his complaint as a matter of course under Rule 15(a)(1) because the complaint has not yet been served.
| What the court decided | The model |
|---|---|
Motion for appointment of counsel denied without prejudice“The Court DENIES WITHOUT PREJUDICE Plaintiff's motion for appointment of counsel.” | agree with court The court correctly applied the standard for appointment of counsel in civil cases, requiring a showing of 'exceptional circumstances' which includes an evaluation of the likelihood of success on the merits and the plaintiff's ability to articulate claims. The court found that because the case was in early stages and the plaintiff intended to amend, these factors were unclear, thus failing to meet the threshold. This is a defensible exercise of discretion. |
Motion for leave to amend complaint denied as unnecessary“Plaintiff's complaint has not yet been served, thus, he does not need to request permission to amend his complaint and may amend it pursuant to Federal Rule of Civil Procedure 15(a)(1).” | agree with court The court correctly identified that under Fed. R. Civ. P. 15(a)(1)(B), a party may amend as a matter of course within 21 days after service of a responsive pleading or a Rule 12 motion. Since the complaint had not been served, the 'matter of course' window had not yet triggered or closed in a way that required leave. The court correctly advised the plaintiff of his right to amend without needing a specific order granting leave at this stage. |
The order itself: sound — The order is procedurally correct and applies the appropriate legal standards for both the appointment of counsel and the amendment of pleadings. It correctly cites Ninth Circuit precedent for the 'exceptional circumstances' test and Federal Rule of Civil Procedure 15(a)(1) for the right to amend as a matter of course. The reasoning is concise but sufficient for the procedural posture.
Opinion
5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL COTTON, Case No. 18-cv-325-BAS-MDD 12 Plaintiff, ORDER DENYING EX PARTE 13 MOTION FOR APPOINTMENT OF COUNSEL 14 v. [ECF No. 13] LARRY GERACI, et al., 15 Defendants. 16 18 Plaintiff Darryl Cotton followed an ex parte motion for reconsideration “re: 19 appointment of counsel and leave to amend complaint.” (ECF No. 13.) The Court 20 previously stayed Plaintiff’s case until resolution of the parallel state action and 21 denied as moot Plaintiff’s motion for appointment of counsel. (ECF No. 7.) The 22 stay has since been lifted. Plaintiff now seeks reconsideration of the order denying 23 his request for counsel and also seeks leave to amend. Although Plaintiff titles the 24 motion as one for reconsideration, the Court will simply evaluate his request for 25 counsel. 26 “[T]here is no absolute right to counsel in civil proceedings.” Hedges v. 27 Resolution Tr. Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 1994). Thus, | || Mallard v. U.S. District Court, 490 U.S. 296, 310 (1989); see also United States v. 2 || $292,888.04 in U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995). 3 Districts courts have discretion, however, pursuant to 28 U.S.C. § 1915(e)(1) 4 ||to “request” that an attorney represent indigent civil litigants upon a showing of 5 ||“exceptional circumstances.” See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 6 1103 (9th Cir. 2004); accord Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). 7 ||“A finding of the exceptional circumstances of the plaintiff seeking assistance 8 ||requires at least an evaluation of the likelihood of the plaintiff's success on the merits 9 ||and an evaluation of the plaintiff's ability to articulate his claims ‘in light of the 10 ||complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting 11 || Wilborn vy. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)); see also Terrell v. 12 || Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 13 Having reviewed Plaintiff's request, the Court concludes the circumstances 14 || fail to demonstrate “exceptional circumstances” warranting the appointment of 15 ||counsel at this time. First, the case is still in the very early stages and □□□□□□□□□□□ 16 |/success on the merits is unclear. And second, Plaintiff's complaint is extremely 17 detailed and is full of factual allegations. Because Plaintiff states he is going to 18 ||amend his complaint, his ability to articulate his claims is also unclear at this time. 19 || The Court DENIES WITHOUT PREJUDICE Plaintiff's motion for appointment 20 || of counsel. 21 Plaintiff also seeks leave to amend his complaint. A party may amend its 22 pleading “once as a matter of course 21 days after service of a responsive pleading 23 ||or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” 24 Fed. R. Civ. P. 15(a)(1)(B). Plaintiff's complaint has not yet been served, thus, he 25 |/does not need to request permission to amend his complaint and may amend it 26 || pursuant to Federal Rule of Civil Procedure 15(a)(1). 27 IT IS SO ORDERED. 28 DATED: April 15, 2020 / yy liathis (rabaa f