Pinzon v. Jensen et al

Filing 88

ORDER DENYING 83 Plaintiff's motion to amend and to assign legal counsel. Order signed by Magistrate Judge Sheila K. Oberto on 3/20/2012. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ABRAHAM G. PINZON,

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CASE NO. 1:08-cv-01543-AWI-SKO

Plaintiff,

ORDER DENYING PLAINTIFF'S
MOTION TO AMEND AND TO
ASSIGN LEGAL COUNSEL

v.

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RON JENSEN, et al,

(Docket No. 83)

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Defendants.
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I. INTRODUCTION AND RELEVANT BACKGROUND

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Plaintiff Abraham G. Pinzon (“Plaintiff”) initially filed suit in the small claims division of

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the Superior Court, County of Tuolumne against Defendants Dan Vaughn (“Vaughn”) and Ron

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Jensen (“Jensen”) for failure to pay for contractor services. On January 22, 2007, the court ruled

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against Plaintiff. (Doc. 28.)

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On October 14, 2009, Plaintiff, proceeding pro se and in forma pauperis, filed the instant

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action. (Docs. 1, 2.) The complaint was screened and dismissed with leave to amend, and a First

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Amended Complaint was filed on March 6, 2009, against Defendants Jensen, Ron Jensen

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Construction (“Jensen Construction”), Vaughn, and Pinecrest Market (“Pinecrest”). (Docs. 7, 9.)

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Only Vaughn and Pinecrest answered; however, Plaintiff has not obtained default against Jensen or

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Jensen Construction. (Docs. 18, 21, 38.)

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On November 23, 2009, Chief District Judge Anthony W. Ishii ruled on the motions to

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dismiss brought by Vaughn and Pinecrest, dismissing without leave to amend all but two of

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Plaintiff’s claims. (Doc. 33.)

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On May 19, 2011, Magistrate Judge Sheila K. Oberto denied Plaintiff’s motion for

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appointment of counsel. (Doc. 69.) Plaintiff sought reconsideration, which was denied by Chief

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District Judge Ishii on August 15, 2011. (Doc. 75.) On the same day, Chief District Judge Ishii

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granted the motions for summary judgment brought by Vaughn and Pinecrest as to the remaining

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claims. (Doc. 76.) The Court then ordered that Plaintiff take action with respect to his suit against

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Jensen and Jensen Construction. (Doc. 80.) Plaintiff failed to do so, and a hearing regarding

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dismissal for lack of prosecution was scheduled for February 21, 2012. (Doc. 81.)

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On February 14, 2012, Plaintiff filed three motions: a motion to amend the complaint and

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assign legal counsel (Doc. 83), a motion to vacate the order on the motion for reconsideration for the

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appointment of counsel (Doc. 84), and a motion to vacate the order granting the motions for

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summary judgment. (Doc. 85.) On February 17, 2012, Chief District Judge Ishii vacated the

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February 21, 2012, hearing and denied Plaintiff’s motions for reconsideration of appointment of

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counsel and for vacating the summary judgment. (Doc. 87.) Judge Ishii referred the instant motion

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to amend to Magistrate Judge Oberto for consideration. (Doc. 87.)

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For the reasons set forth below, Plaintiff’s “Motion to Amend Complaint and to Assign Legal
Counsel to Execute Process to Finality Reconsideration” is DENIED.

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II. DISCUSSION

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Plaintiff’s motion, labeled “Motion to Amend Complaint and to Assign Legal Counsel to

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Execute Process to Finality Reconsideration,” does not clearly set forth what court action Plaintiff

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is seeking, but appears solely to be a request to assign legal counsel. (Doc. 83.) Although the

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motion’s caption states that this is also a motion to amend the complaint, Plaintiff does not articulate

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what amendment he seeks. (See Doc. 83.)

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A.

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Plaintiff’s Request to Assign Counsel is Denied
This is Plaintiff’s fourth request that the Court assign counsel. Plaintiff’s first motion for

appointment of counsel was denied on May 19, 2011.
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(Doc. 69.)

Plaintiff’s motion for

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reconsideration was denied on August 15, 2011. (Doc. 75.) Plaintiff’s additional motion for

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reconsideration (Doc. 84), filed concurrently with the instant motion, was denied on February 17,

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2012. (Doc. 87.)

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The Court has ruled, repeatedly, that Plaintiff is not entitled to the assignment of counsel in

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this action.

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disagreement is not grounds for reconsideration. Fed. R. Civ. P. 60(b)(6); Local Rule 230(j); Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009). C h i e f

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District Judge Ishii has also affirmed that “[t]here is insufficient grounds to appoint counsel.” (Doc.

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87, 2:23.) As such, Plaintiff’s request to assign legal counsel is DENIED.

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B.

(Docs. 69, 75, 87.)

Although Plaintiff disagrees with that ruling, Plaintiff’s

Plaintiff’s Request to Amend the Complaint is Denied

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Although Plaintiff entitles this motion in part a “Motion to Amend Complaint” (Doc. 83,

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p. 1), Plaintiff does not set forth the grounds for seeking amendment, indicate how he wishes to

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amend the complaint, or file a proposed amended complaint.

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Plaintiff’s motion is procedurally defective. Rule 137(c) of the Local Rules for the U.S.

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District Court, Eastern District California, states in pertinent part that, “[i]f filing a document

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requires leave of court, such as an amended complaint after the time to amend as a matter of course

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has expired, counsel shall attach the document proposed to be filed as an exhibit to the moving

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papers seeking such leave.” Plaintiff has failed to attach a proposed amended complaint.

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Plaintiff’s motion is also substantively defective. Federal Rule of Civil Procedure 16(b)

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provides that the district court must issue a scheduling order that limits the time to join other parties,

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amend the pleadings, complete discovery, and file motions. Fed. R. Civ. P. 16(b)(1)-(3). Once in

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place, “[a] schedule may be modified only for good cause and with the judge’s consent.” Fed. R.

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Civ. P. 16(b)(4). The “good cause” requirement of Rule 16 primarily considers the diligence of the

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party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir.

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1992).

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Here, a scheduling order was issued on January 7, 2011. (Doc. 43.) As such, Plaintiff must

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show that he was diligent and establish good cause in order to amend the pleadings. Fed. R. Civ.

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P. 16(b)(4). Plaintiff fails to do either.
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First, Plaintiff was not diligent with his request. Plaintiff’s First Amended Complaint was

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filed on March 6, 2009. (Doc. 9.) Plaintiff fails to explain why he is filing a motion to amend his

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complaint nearly three years later. Additionally, summary judgement has already been granted

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against Plaintiff and in favor of Defendants Vaughn and Pinecrest. (Doc. 76.) Plaintiff’s motion to

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amend the complaint as to those Defendants at this stage in the litigation shows not only a lack of

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diligence, but also fails to serve any purpose as Chief District Judge Ishii has already decided the

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case in favor of Defendants Vaughn and Pinecrest.

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Second, with regards to the good cause requirement to amend a complaint, Plaintiff appears

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to contend that, because of the complexity of his case and the fact that Defendants had indicated that

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they would require a four- to five-day trial, he requires counsel. (Doc. 83, 2:1-4.) Plaintiff also

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appears to contend that he was disadvantaged because no conferences, negotiations, or hearings have

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taken place. (Doc. 83, 20-26.)

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Chief District Judge Ishii rejected Plaintiff’s “complexity” argument, finding that “[t]he fact

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that a trial may last a few days does not necessarily mean that it involves unduly difficult issues. As

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stated, this is a relatively straightforward case. . .” (Doc. 87, 2:19-21.) Chief District Judge Ishii also

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rejected the argument that Plaintiff was entitled to a hearing on Vaughn and Pinecrest’s summary

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judgment motions. The Court found that Plaintiff

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was given additional time to file a second opposition to the motions for summary
judgment . . . . Pinzon made no response and the court ruled on the papers. The
Federal Rules of Civil Procedure do not guarantee a hearing. The Local Rules of the
Eastern District state that motions “may be submitted upon the record and briefs on
file.” Local Rule 230(g) . . . . The court invited Pinzon to file additional evidence to
oppose the summary judgment. Pinzon’s failure to respond convinced the court that
a hearing would not be helpful in this case as Pinzon had nothing to add.
(Doc. 87, 3:1-9.) As such, the Court was not required to hold any hearings in this action.

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Further, Plaintiff’s contention that a “conference negotiation” is warranted lacks merit. (See

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Doc. 83, 2:25.) As noted, summary judgment has been granted against Plaintiff and in favor of

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Defendants Vaughn and Pinecrest. (Doc. 76.) As such, there are no longer any issues requiring

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negotiation concerning these Defendants.

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Construction have failed to answer, Plaintiff has not obtained default against them. Since Jensen and

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Jensen Construction have not appeared in this action, no negotiation or conference can be held with

Further, although Defendants Jensen and Jensen

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them. The Court is currently considering dismissal of Plaintiff’s action against Jensen and Jensen

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Construction for lack of prosecution. (Docs. 80, 81.)

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In sum, as Plaintiff’s entitled “Motion to Amend Complaint” is both procedurally and
substantively defective, it is DENIED.

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III. CONCLUSION AND ORDER

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s “Motion to Amend Complaint and
Assign Legal Counsel to Execute Process to Finality Reconsideration” is DENIED.

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IT IS SO ORDERED.
Dated:
ie14hj

March 20, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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