Enwere v. Hiller et al

Filing 46

ORDER RE OUTSTANDING MOTIONS.. Signed by Judge Jeffrey S. White on 6/3/11. (jjoS, COURT STAFF) (Filed on 6/3/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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CATHY D. ENWERE,

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Plaintiff,

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No. C 11-00645 JSW

v.
LAURIE B. HILLER, ET AL,

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ORDER RE OUTSTANDING
MOTIONS

Defendants.
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On February 11, 2011, pro se Plaintiff Cathy Enwere filed a complaint alleging “illegal

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misconduct” and invasion of privacy, among other things, against attorney Laurie Hiller and her

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employer, Sauer & Wagner. In her complaint, Plaintiff claims that Hiller misused information

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during a discovery dispute hearing before Magistrate Judge Trumbull and at various other

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points during Enwere v. Terman Associates, L.P., No. C 07-1239 JF (PVT) (“the Underlying

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Action”). (Complaint at 1-6.) Hiller was an attorney representing various defendants in the

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Underlying Action.

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At the time she filed her complaint, Plaintiff also filed a motion for leave to proceed in

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forma pauperis, which was granted on March 30, 2011. On March 2, 2011, Plaintiff filed a

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motion to appoint counsel, requesting that the Court appoint counsel to help her prosecute her

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case. She also filed letters on March 17 and March 18, 2011 that appear to be in support of that

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motion.

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Defendants appeared on March 10, 2011 and filed a motion to dismiss Plaintiff’s

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complaint for failure to state a claim and a motion to strike the complaint in its entirety based on

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California Code of Civil Procedure § 425.16 (California’s anti-SLAPP statute).1 On March 24,

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2011, Plaintiff filed a motion to amend her complaint and a “Motion to Dismiss All Motions

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Against Plaintiff to Strike Them Local Civil Rule 5-16.” On March 31, 2011, Defendants filed

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objections to Plaintiff’s motions.
On April 5, 2011, Plaintiff filed a “Motion for Summary Judgment Notice of Motion and

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Motion to Consider Case Should be Authentic Governing Rule ADR Local Rules (16) & (6).”
After Defendants declined to proceed before a magistrate judge, this case was reassigned

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to this Court. On April 7, 2011, Defendants filed replies to their motions to dismiss and to

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For the Northern District of California

United States District Court

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strike and objections to Plaintiff’s motion for summary judgment. The Court has, in addition,

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received numerous filings from Plaintiff on the outstanding motions and objections.
The Court shall address each motion in turn.

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ANALYSIS

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A.

Plaintiff’s Motion to Appoint Counsel.
Pursuant to 28 U.S.C. § 1915(e)(1), the Court may request that an attorney represent a

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person who is unable to afford counsel. Unless a party may lose her physical liberty if she loses

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the case, there is generally no constitutional right to an attorney in a civil action. See Lassiter v.

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Dep’t of Soc. Serv. of Durham Cnty., N.C., 452 U.S. 18, 25 (1981); Nicholson v. Rushen, 767

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F.2d 1426, 1427 (9th Cir. 1985) (citation omitted). Nonetheless, the court may request counsel

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under § 1915(e)(1), but only in “exceptional circumstances.” See Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991). To determine whether “exceptional circumstances” exist, the trial

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court should evaluate (1) the likelihood of the indigent party’s success on the merits and (2) the

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indigent party’s ability to articulate her claims in light of the complexity of the legal issues

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involved. Id. “Neither of these factors is dispositive and both must be viewed together before

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reaching a decision.” Id. (quotations and citation omitted).

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“SLAPP” stands for “strategic lawsuit against public participation.” See Hilton v.
Halmark Cards, 580 F.3d 874, 880 n.1 (9th Cir. 2009).
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Here, Plaintiff contends that the Court must appoint counsel for her because (1) she

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cannot afford counsel and (2) she has been disabled due to a “mental condition” for the last

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sixteen years. While Plaintiff is indeed indigent, the Court does not find that her situation

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constitutes “exceptional circumstances” warranting a request for counsel. First, the Court finds

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that Plaintiff is not likely to succeed on the merits of her case. Her suit is based on a discovery

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dispute in the Underlying Case in which she was a plaintiff. (Complaint; Enwere v. Terman

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Associates, L.P., No. C 07-1239 JF (PVT)). In that case, Magistrate Judge Trumbull presided

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over all discovery related issues, held numerous oral arguments regarding discovery disputes,

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and issued a number of discovery orders. As a result of her failure to provide foundational
information regarding her claims and her “multiple conscious decisions to violate or disregard

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For the Northern District of California

United States District Court

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lawful court orders,” the District Court dismissed Plaintiff’s substantive claims with prejudice.

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Id. Based on Plaintiff’s allegations in this matter, it appears that the District Court and

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Magistrate Judge Trumbull have already considered and disposed of the underlying factual

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basis for her present claims. Therefore, it does not seem likely that she will succeed on the

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merits.

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Second, Plaintiff’s complaint and subsequent fillings with this court suggest that she has

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some difficulty articulating her arguments. (See, e.g., Complaint; Motion to Appoint Counsel;

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Motion to Amend Complaint; Motion to Dismiss All Motions.) Notwithstanding the difficulty,

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the Court is able to decipher the general factual and legal foundations for her claims. Moreover,

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Plaintiff’s claims arise from Defendants’ alleged illegal disclosure of information during a

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discovery dispute before Magistrate Judge Trumbull in the Underlying Case – a factual and

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legal scenario that is not particularly complex. As a result, although Plaintiff may have some

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difficulty articulating her claims, the Court does not find that this difficulty, in light of the

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complexity of the issues involved, warrants a request for counsel. Accordingly, Plaintiff’s

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motion for appointment of counsel is DENIED.

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B.

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Defendants’ Motion to Dismiss, Motion to Strike, and Plaintiff’s Motion to Amend.
On March 24, 2011, Plaintiff filed a motion to amend her complaint. On March 31,

2011, Defendants filed an objection to her motion stating that the motion did not conform with
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the local rules and that under California law, Plaintiff is barred from filing an amended

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complaint while a motion to strike pursuant to California’s anti-SLAPP statute is pending

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before the court. (Objection at 2-3.)

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Under Federal Rule of Civil Procedure 15(a)(1), a plaintiff may amend her complaint as

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a matter of course within 21 days of serving the original complaint or, “if the pleading is one to

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which a responsive pleading is required, ... 21 days after service of a motion under Rule 12(b),

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(e), or (f).” A plaintiff may not, however, amend her complaint before the court rules on a

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pending anti-SLAPP motion. See Salma v. Capon, 161 Cal. App. 4th 1275, 1280 (2008).

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Here, Defendants filed their motions to dismiss and strike on March 10, 2011. Plaintiff
styled her filing to amend her complaint as a motion even though Federal Rule of Civil

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For the Northern District of California

United States District Court

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Procedure 15(a)(1) provides her the right to amend her complaint once as a matter of course if

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she had done so by March 31, 2011.2 She attached a complete copy of her proposed first

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amended complaint. Because Plaintiff filed her amended complaint before March 31, 2011 and

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she had not previously amended her complaint, she may file her first amended complaint as a

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matter of course, unless there is an anti-SLAPP motion pending before the court. Fed. R. Civ.

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P. 15(a)(1). The question thus becomes whether Defendants’ anti-SLAPP motion is properly

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before the Court.

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California’s anti-SLAPP statute does not apply to federal claims. See Hilton v.

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Hallmark Cards, 580 F.3d 874, 881 (9th Cir. 2009). Thus, to the extent that Plaintiff asserts

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only violations of state law, the Court would lack subject matter jurisdiction to hear the case

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because the parties are not diverse. To the extent that Plaintiff alleges only violations of federal

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law, the court cannot hear Defendants’ anti-SLAPP motion. Id. Even if Plaintiff alleges some

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state claims and some federal claims, Defendants’ anti-SLAPP motion would only apply to the

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state claims. See Globetrotter Software, Inc. v. Elan Computer Grp., Inc., 63 F. Supp. 2d 1127,

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1129-1130 (N.D. Cal. 1999). With this in mind, the Court questions whether Defendants’

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The Court must construe pro se filings liberally. Zichko v. Idaho, 247 F.3d 1015,
1020 (9th Cir. 2001). Thus, while Plaintiff improperly identified her filing as a motion rather
than simply as an amended complaint as Rule 15 entitles her to do, the Court must construe
the filing liberally.

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pursuit of dismissal via an anti-SLAPP motion is the best method to challenge Plaintiff’s

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complaint, particularly where a motion under Federal Rule of Civil Procedure 12 seems

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adequate. The Court would prefer, as a procedural matter, to rule on a renewed motion to

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dismiss the proposed amended complaint.

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In any event, the Court orders the parties to submit supplemental briefing regarding

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whether the Court may hear and rule on Defendants’ anti-SLAPP motion. Defendants may file

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a supplemental brief of no longer than five pages by no later than June 17, 2011 and Plaintiff

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may file a reply, not to exceed five pages, by no later than July 1, 2011. The hearings on the

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motions is HEREBY VACATED and shall be reset by further order, only if necessary.
If the Court cannot hear Defendants’ anti-SLAPP motion and Plaintiff is therefore

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For the Northern District of California

United States District Court

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entitled to amend her complaint as a matter of course, Defendants’ current motion to dismiss

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would be moot because it is directed at Plaintiff’s initial complaint. The Court will evaluate

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whether Plaintiff may amend her complaint following the supplemental briefing from the

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parties. However, the Court encourages Defendants to accept the proposed amended complaint

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and renew their motion to dismiss. In this way, the Court may squarely address the merits of

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the defenses without the unnecessary distraction of the current procedural complications

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presented by the order of the filings in this matter.

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C.

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Plaintiff’s Motion to Dismiss All Motions.
On March 24, 2011, Plaintiff filed a document entitled “Motion to Dismiss All Motions

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Against Plaintiff to Strike Them Local Civil Rule 5-16.” Defendants filed an objection on

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March 31, 2011 stating that her motion was not properly noticed under the local rules and that

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as a result, the Court should remove the motion hearing from its calendar or continue oral

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argument on the motion to a later date. (Objection at 1-2.)

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Mindful that courts must construe pro se filings liberally, Plaintiff’s motion appears to

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be an opposition to Defendants’ motions to dismiss and strike, rather than a distinct motion.

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Therefore, the Court construes Plaintiff’s motion to dismiss as an opposition to Defendants’

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motions to dismiss and strike.

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Plaintiff’s Motion for Summary Judgment.
On April 5, 2011, Plaintiff filed a “Motion for Summary Judgment Notice of Motion and

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Motion to Consider Case Should be Authentic Governing Rule ADR Local Rules (16) & (6).”

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Plaintiff noticed the motion for oral argument on April 21, 2011. Under Civil Local Rule 7-2,

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all motions must be noticed for hearing not less than 35 days after service of the motion.

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Plaintiff noticed her motion for summary judgment for only 16 days after service of her motion.

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As a result of the failure to set the hearing with adequate time for response and because the

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motions to dismiss, to strike, and to amend are still pending, the Court dismisses Plaintiff’s
motion for summary judgment without prejudice. If the Court denies Defendants’ motions to

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For the Northern District of California

United States District Court

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dismiss and strike, Plaintiff may resubmit her motion for summary judgment. However, though

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she is a pro se litigant, Plaintiff is admonished that she must comply with the Federal Rules of

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Civil Procedure, the Northern District’s Civil Local Rules, and this Court’s standing orders.

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The Court admonishes Plaintiff that the Court may strike from the record future submissions

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that do not comply with these rules.

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CONCLUSION

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For the foregoing reasons, the Court ORDERS as follows:

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(1)

Plaintiff’s motion for appointment of counsel is DENIED. In this regard, the

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Court advises Plaintiff that she may wish to seek assistance from the Legal Help Center.

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Plaintiff may call the Legal Help Center at 415-782-9000, extension 8657, or sign up on the

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15th Floor of the Courthouse, Room 2796, for a free appointment with an attorney who may be

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able to provide basic legal help, but not legal representation.

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(2)

The parties shall submit supplemental briefing regarding the Court’s ability to

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consider Defendants’ anti-SLAPP motion according to the schedule set forth above. In the

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alternative, Defendants may indicate they accept the filing of the amended complaint and

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pursue a renewed motion to dismiss the amended complaint.

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(3)

The Court construes Plaintiff’s “Motion to Dismiss All Motions Against Plaintiff

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to Strike Them Local Civil Rule 5-16” as an opposition to Defendants’ motions to dismiss and

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strike.

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(4)

Plaintiff’s motion for summary judgment is DENIED without prejudice.

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(5)

The hearings on the motions are VACATED, thus mooting Defendants’ motion

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to appear by telephone at the hearing.

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IT IS SO ORDERED.

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Dated:

June 3, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT
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FOR THE
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NORTHERN DISTRICT OF CALIFORNIA
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7 ENWERE et al,
Plaintiff,

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Case Number: CV11-00645 JSW
CERTIFICATE OF SERVICE

v.

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For the Northern District of California

United States District Court

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Defendant.

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13 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
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That on June 3, 2011, I SERVED a true and correct copy(ies) of the attached, by placing
15 said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
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Cathy Enwere
19 1263 Madera Ave.
Menlo Park, CA 94025
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Dated: June 3, 2011
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk