Stiles et al v. Wal Mart Stores Inc, et al

Filing 38

ORDER signed by Magistrate Judge Craig M. Kellison on 10/7/2014 GRANTING the plaintiff's 28 Requests for Voluntarily Dismissal of Defendants Coty, Inc., Pacific World Corporation; DIRECTING the Clerk of Court to terminate Defendants Coty, Inc. , Pacific World Corporation; TERMINATING 26 Motion to Dismiss, 30 Motion for Judgment as moot; DENYING 28 Request to Consolidate Hearing Dates as moot, DENYING 28 Motion for Leave to Amend; DENYING 6 Motion for Appointment of Counsel. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHARIDAN STILES, et al.,

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Plaintiffs,

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No. 2:14-CV-1637-JAM-CMK

vs.

ORDER

WAL MART STORES, INC., et al.,

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Defendants.

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/

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Plaintiff, who is proceeding pro se, brings this civil action. Defendants Wal Mart

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Stores, Inc., American International Industries, Inc., and Coty, Inc., have filed motions to dismiss

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(Docs. 25 and 26), currently set for hearing on October 8, 2014. Defendant Pacific World

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Corporation has filed an answer to complaint as well as a motion for judgment on the pleadings

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(Doc. 30), currently set for hearing on October 22, 2014. Also before the court are the following

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motions/requests filed by plaintiff: (1) motion for appointment of counsel (Doc. 6); (2) request

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for voluntary dismissal of defendants Coty, Inc., and Pacific World Corporation (Doc. 28);

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plaintiff’s motion to consolidate hearings (Doc. 28); and (4) plaintiff’s motion for leave to amend

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(Doc. 28).

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(3)

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Turning first to plaintiff’s request for voluntary dismissal, plaintiff states: “In

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good faith I will: Dismiss all complaints against Coty Inc. & Pacific World Corporation without

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prejudice.” As to defendant Coty, Inc., who has filed neither an answer nor motion for summary

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judgment, leave of court is not required and the action is dismissed without prejudice as against

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such defendant on plaintiff’s notice. See Fed. R. Civ. P. 41(a)(1)(A)(I). As to defendant Pacific

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World Corporation, who has filed an answer to complaint, plaintiff’s request will be granted for

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good cause shown and the action will be dismissed without prejudice as against such defendant.

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See Fed. R. Civ. P. 41(a)(2).

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Next, plaintiff requests that the hearings on defendants’ various motions be

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consolidated to a single hearing date. Given the voluntary dismissal from this action of

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defendants Coty, Inc., and Pacific World Corporation, their respective motions are moot. Thus,

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the only hearing date remaining is the October 8, 2014, date on the remaining defendants’ motion

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to dismiss, rendering plaintiff’s request to consolidate hearing dates also moot.

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Next, plaintiff appears to seek leave to amend the complaint. It is not clear

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whether plaintiff seeks to add new allegations or to simply remove referenced to the voluntarily

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dismissed defendants, or both. To accomplish the latter, leave to amend would be unnecessary.

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To accomplish the former, plaintiff would be required to submit a proposed amended complaint

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and to set the matter for hearing, neither of which plaintiff did. Rather, plaintiff filed a new

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action in this court (Stiles v. Wal Mart Stores, Inc., et al., E. Dist. Cal. case no. 2:14-CV-2234-

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GEB-CMK), naming only Wal Mart Stores, Inc., and American International Industries, Inc., and

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appearing to set for the same facts and claims.1 Given the lack of clarity in plaintiff’s apparent

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request for leave to amend filed in this case, and in light of the filing of the second action, the

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request will be denied at this time.

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Plaintiff has paid the filing fees in the second action, which is set for an initial
scheduling conference on February 4, 2015.
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Finally, plaintiff seeks appointment of counsel. The United States Supreme Court

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has ruled that district courts lack authority to require counsel to represent indigent plaintiffs in

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civil actions. See e.g. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional circumstances”

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requires an evaluation of both the likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims on his own in light of the complexity of the legal issues involved.

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See Terrell, 935 F.2d at 1017. Neither factor is dispositive and both must be viewed together

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before reaching a decision. See id.

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In this case, plaintiff has demonstrated a satisfactory ability to articulate her

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claims. As to a likelihood of success on the merits, the court notes that a motion to dismiss the

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action for failure to state a claim is currently pending. Until that motion is resolved, the court

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conclude that plaintiff has a likelihood of success on the merits. Plaintiff’s motion for

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appointment of counsel will be denied at this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Defendant Coty, Inc., is voluntarily dismiss on plaintiff’s notice (Doc. 28);

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2.

Plaintiff’s request for voluntary dismissal (Doc. 28) of defendant Pacific

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World Corporation is granted;

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3.

The Clerk of the Court is directed to update the docket to terminate Coty,

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Inc., and Pacific World Corporation as defendants to this action, which proceeds against

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defendants Wal Mart Stores, Inc., and American International Industries, Inc., only;

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4.

The motions filed by Coty, Inc., and Pacific World Corporation (Docs. 26

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and 30) are moot and the Clerk of the Court is directed to terminate these matters as pending

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motions;

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5.

Plaintiff’s request to consolidate hearing dates (Doc. 28) is denied as

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6.

Plaintiff’s motion for leave to amend (Doc. 28) is denied; and

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7.

Plaintiff’s motion for appointment of counsel (Doc. 6) is denied.

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moot;

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DATED: October 7, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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