Fulton v. San Diego Backflow Test

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ANDREW MICHAEL FULTON, Case No.: 21-CV-369-JLS (NLS) an individual; JENIFER RUTH SNYDER, 13 an individual; SAN DIEGO BACKFLOW ORDER DENYING WITHOUT 14 TESTING, INC., a California corporation; PREJUDICE DEFENDANTS’ and SAN DIEGO BACKFLOW MOTION TO REQUEST 15 TESTING, a California entity, APPOINTMENT OF COUNSEL 16 Plaintiffs, (ECF No. 9) 17 v. 18 SAN DIEGO BACKFLOW TEST, 19 a California entity; FARZIN BAZADEH, aka FRED BAZADEH, an individual; and 20 DOES 1 through 15, inclusive, 21 Defendants. 22 23 Presently before the Court is a letter from Defendants Farzin Bazadeh and San Diego 24 Backflow Test (collectively, “Defendants”), which the Court construes as a motion to 25 appoint counsel pursuant to 28 U.S.C. § 1915(e)(1) (“Mot.,” ECF No. 9). The Motion 26 indicates that Defendants “can not afford an attorney,” so “[they] need a Public Defender 27 to help [them] fight this case.” Id. at 1. 28 / / / 1 As an initial matter, pursuant to this District’s Local Rules: 2 Only natural persons representing their individual interests in propia persona may appear in court without representation by an 3 attorney permitted to practice pursuant to Civil Local Rule 83.3. 4 All other parties, including corporations, partnerships and other legal entities, may appear in court only through an attorney 5 permitted to practice pursuant to Civil Local Rule 83.3. 6 7 S.D. CivLR 83.3(j); see also In re Highley, 459 F.2d 554, 555 (9th Cir. 1972) (“A 8 corporation can appear in a court proceeding only through an attorney at law.”) (collecting 9 cases). Accordingly, to the extent the Motion purports to be from or on behalf of “San 10 Diego Backflow Test Company,” see Mot. at 1, the Court finds it is unable to grant the 11 requested relief, as Mr. Bazadeh cannot represent San Diego Backflow Test and “[San 12 Diego Backflow Test] may not file documents in this case unless and until [it is] 13 represented by attorneys admitted to the bar of this court.” Denso Corp. v. Domain Name 14 (denso.com), No. C 14-01050 LB, 2014 WL 4681179, at *4 (N.D. Cal. Sept. 19, 2014). 15 To the extent the Motion seeks appointment of counsel for Mr. Bazadeh as an 16 individual, the Court notes that there is no constitutional right to counsel in a civil case. 17 Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 25 (1981); Palmer v. Valdez, 560 F.3d 965, 18 970 (9th Cir. 2009). Rather, the appointment of counsel in a civil case “is a privilege and 19 not a right.” U. S. ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (citing 20 Wright v. Rhay, 310 F.2d 687 (9th Cir. 1962)). And, while 28 U.S.C. § 1915(e)(1) grants 21 the district court limited discretion to “request” that an attorney represent an indigent civil 22 litigant in “exceptional circumstances,” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 23 1103 (9th Cir. 2004); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991), the Court is 24 only empowered to exercise that discretion if the litigant is “unable to afford counsel,” 28 25 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to 26 afford counsel.”) (emphasis added). “When a claim of poverty is made under section 1915 27 ‘it is proper and indeed essential for the supporting affidavits to state the facts as to affiant’s 28 poverty with some particularity, definiteness and certainty.’” United States v. McQuade, 1 F.2d 938, 940 (9th Cir. 1981) (quoting Jefferson v. United States, 277 F.2d 723, 725 2 Cir. 1960)). 3 Mr. Bazadeh does not provide an affidavit verifying with some particularity his 4 ||claim of poverty. The Court directs Mr. Bazadeh to Form CJA 23, “Financial Affidavit in 5 ||Support of Request for Attorney, Expert, or Other Services Without Payment of Fee,” 6 || available at https://www.casd.uscourts.gov/_assets/pdf/forms/Financial%20A ffidavit.pdf 7 || (last visited Mar. 24, 2021), which will provide the Court with adequate factual information 8 ||concerning Mr. Bazadeh’s income, assets, obligations, and debts to assess whether he 1s 9 || sufficiently indigent for the Court to assess any request for appointment of counsel on the 10 merits. However, the Court notes that, even if Mr. Bazadeh provides the Court with the 11 |}requested financial information, Mr. Bazadeh is only entitled to appointment of counsel if 12 can establish “exceptional circumstances,” which “requires an evaluation of both the 13 || likelihood of success on the merits and the ability of the plaintiff to articulate his claims 14 || pro se in light of the complexity of the legal issues involved.” Washington v. Rowland, 29 15 || F.3d 638 (9th Cir. 1994) (citations and internal quotation marks omitted). Thus, even if 16 Bazadeh furnishes the Court with the requested financial information, his request for 17 |}counsel will not be granted as a matter of right. 18 In light of the foregoing, the Court DENIES Defendants’ Motion (ECF No. 9), 19 || WITHOUT PREJUDICE to Mr. Bazadeh filing an adequately supported motion to 20 || appoint counsel. 21 IT IS SO ORDERED. 92 Dated: March 29, 2021 tt 3 jt Janis L. Sammartino United States District Judge 24 25 26 27 28