Howard v. Farmers Insurance Company Inc et al

Filing 104


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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DERRICK HOWARD, 12 13 14 15 16 17 Plaintiff, v. FARMERS INSURANCE COMPANY, INC.; MID-CENTURY INSURANCE COMPANY; et al. Defendants. ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-01068 DDP (JCx) ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL [Dkt. No. 103] 18 19 Presently before the Court is Plaintiff’s Motion for 20 Appointment of Counsel. 21 United States Penitentiary Coleman II in Florida; the claims of his 22 complaint arise from an insurance contract relating to a rental 23 property in Missouri that Plaintiff owns or owned. 24 In other words, it is a private civil dispute, not a criminal 25 matter, a civil rights claim, or even a civil dispute with the 26 Bureau of Prisons. 27 28 (Dkt. No. 103.) Plaintiff is an inmate at (Dkt. No. 3.) Plaintiff nonetheless asks that the Court request an attorney to represent him under 28 U.S.C. § 1915(e)(1). That section allows 1 the court “to request volunteer counsel for indigent plaintiffs,” 2 although “the court has no power to make a mandatory appointment.” 3 Zachow v. City of Portland, Or., No. 3:14-CV-00140-JE, 2014 WL 4 1236371, at *3 (D. Or. Mar. 25, 2014). 5 appointment of volunteer counsel “would assist the court as well as 6 all parties involved,” because, as an inmate, he is unable to 7 conduct discovery, depose witnesses, or timely respond to 8 pleadings, discovery, or court orders. 9 Plaintiff argues that (Motion at 3.) Plaintiff is correct that his status as an inmate hinders the 10 timely and orderly resolution of this litigation. 11 No. 90 (order modifying scheduling order because discovery is 12 delayed by being sent back and forth through the prison mail 13 system).) 14 understandable. 15 request counsel under § 1915(e)(1). 16 (See, e.g., Dkt. The parties’ frustration with this fact is However, there are several good reasons not to First, request of counsel in private, commercial lawsuits is 17 vanishingly rare. 18 one case in which a private plaintiff was appointed counsel in a 19 suit against a non-government-affiliated private defendant. 20 that case, the plaintiff had brought a claim for conversion against 21 his former attorney, who had allegedly sold the plaintiff’s car 22 without his permission while the plaintiff was in prison. 23 v. Nadler, 452 F.2d 754 (8th Cir. 1971). 24 attorney’s misconduct against his client implicates due process and 25 other constitutional guarantees, that case may be unique and 26 limited to its facts. 27 28 After diligent search, the Court has found only In Peterson As a criminal defense In a case much like this one, on the other hand, the Western District of Wisconsin noted: 2 1 I believe that the court of appeals did not intend district 2 courts to evaluate the need for counsel in personal injury 3 lawsuits in the same manner as in federal question litigation. 4 The primary reason is that personal injury claims have an 5 economic value that makes meritorious claims attractive to 6 lawyers without any need for judicial intervention . . . . 7 might be somewhat more difficult for a prisoner to find legal 8 representation because he is not able to make a personal visit 9 to the lawyer's office, but there is no reason to believe that It 10 any prisoner with a meritorious personal injury claim could 11 not find a capable lawyer willing to provide representation. 12 If counsel refuse to take the claim because it appears 13 unlikely to succeed . . . there is no reason for the court to 14 intervene to require a lawyer to proceed with prosecution of 15 the claim. 16 Lipscomb v. Gen. Foods Corp., 615 F. Supp. 254, 257 (W.D. Wis. 17 1985). 18 against an insurer under a statute that provides for attorney’s 19 fees, Mo. Ann. Stat. § 375.296, it seems likely that a plaintiff 20 with a meritorious case could reach some sort of contingency 21 agreement with a private attorney. 22 Similarly, in a suit like this one, which involves claims Even assuming § 1915(e)(1) applies to lawsuits between private 23 parties, it might be reasonable in such cases to demand that the 24 indigent litigant make at least some attempt to secure private 25 counsel before asking the court to appoint counsel. 26 Bracey v. Grondin, 712 F.3d 1012, 1016 (7th Cir. 2013) (requiring 27 an indigent litigant to “make reasonable efforts at finding counsel 28 himself”). See, e.g., Plaintiff has not shown that he has attempted to obtain 3 1 private counsel in this case or argued that it would be impractical 2 for him to do so. 3 Additionally, when a court asks an attorney to represent an 4 indigent party, what gives heft to that request is not that it is 5 mandatory (it is not), but that attorneys have a non-binding moral 6 and professional obligation to provide the indigent with some 7 access to legal services. 8 for S. Dist. of Iowa, 490 U.S. 296, 310-11 (1989) (Kennedy, J., 9 concurring) (“Lawyers, like all those who practice a profession, See, e.g., Mallard v. U.S. Dist. Court 10 have obligations to their calling which exceed their obligations to 11 the State . . . . 12 indigent is one of those traditional obligations.”). 13 bono representation is a limited resource, the Court should lean on 14 that obligation primarily in cases where the gravest harms to 15 justice are likely to occur, such as in civil rights claims. 16 Moreover, appointment of counsel under § 1915(e)(1) “is Accepting a court's request to represent the Because pro 17 granted only in exceptional circumstances,” and requires an 18 evaluation of “at least” the likelihood of success on the merits 19 and the indigent plaintiff's “ability to articulate his claims in 20 light of the complexity of the legal issues involved.” 21 Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (internal 22 quotation marks omitted). 23 on the merits is hard to estimate at this stage, if he is likely to 24 succeed, that suggests, as noted above, that he could probably find 25 a private attorney to take the case for him. 26 prong, Plaintiff has clearly and capably articulated his claims, 27 which do not seem legally complex, in his Complaint. 28 motion is based on the practical hurdles he faces in this Agyeman v. While Plaintiff’s likelihood of success 4 As to the other Plaintiff’s 1 litigation, not on an inability to understand and argue the law. 2 The Court does not find that “exceptional circumstances” are 3 present here. 4 The motion for request of counsel is DENIED. However, 5 recognizing the unusual circumstances under which the parties are 6 forced to litigate, the Court is willing to work flexibly with them 7 on scheduling and other issues that are impacted by Plaintiff’s 8 incarcerated status. 9 10 IT IS SO ORDERED. 11 12 Dated: April 10, 2015 DEAN D. PREGERSON United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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