Calderon v. Davey Tree Surgery Company

Filing 55

ORDER, Motions terminated: 54 STIPULATION WITH PROPOSED ORDER to Continue Pre-Trial and Trial Dates filed by Felipe Calderon, Davey Tree Surgery Company, 51 STIPULATION WITH PROPOSED ORDER to Continue Pre-Trial and Trial Dates filed by Felipe Calderon, Davey Tree Surgery Company, 47 MOTION to Appoint Counsel filed by Felipe Calderon., ORDER STAYING CASE. Signed by Judge ARMSTRONG on 3/11/13. (lrc, COURT STAFF) (Filed on 3/11/2013)

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1 2 UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 OAKLAND DIVISION 5 6 FELIPE CALDERON, Plaintiff, 7 8 vs. Case No: C 11-5486 SBA ORDER GRANTING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL 9 DAVEY TREE SURGERY COMPANY, 10 Defendant. 11 12 13 Plaintiff has submitted a pro se request for the Court to appoint counsel to represent 14 him in this action. Dkt. 92 at 2-3. “[I]t is well-established that there is generally no 15 constitutional right to counsel in civil cases.” United States v. Sardone, 94 F.3d 1233, 1236 16 (9th Cir. 1996). Nonetheless, under 28 U.S.C. § 1915(e)(1), the Court has the discretion to 17 appoint counsel to “any person unable to afford counsel.” The discretionary appointment 18 of counsel typically is reserved for cases involving “exceptional circumstances.” Terrell v. 19 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of exceptional circumstances 20 requires an evaluation of both ‘the likelihood of success on the merits and the ability of the 21 petitioner to articulate his claims pro se in light of the complexity of the legal issues 22 involved.’ Neither of these factors is dispositive and both must be viewed together before 23 reaching a decision.” Id. 24 Here, Plaintiff is unable to communicate in English, which necessarily impedes his 25 ability to articulate his claims to either the Court or a jury. Although Plaintiff’s motion 26 does not specifically address his likelihood of success, the Court notes that the law and 27 motion cut-off lapsed without Defendant filing any dispositive motion in this case. Dkt. 17. 28 Given that fact, it is reasonable to infer that there are triable issues of material fact that must 1 be resolved by a trier of fact. Moreover, the Federal Pro Bono Project, has indicated that it 2 is likely that it will be able to find a volunteer attorney to represent Plaintiff in this action. 3 Accordingly, 4 IT IS HEREBY ORDERED THAT: 5 1. Plaintiff’s Motion to Appoint Counsel is GRANTED. 6 2. This matter is REFERRED to the Federal Pro Bono Project for the purposes 7 8 9 10 of securing legal representation for Plaintiff in this action, for all purposes. 3. The instant action is temporarily STAYED while the Federal Pro Bono Project locates volunteer counsel for Plaintiff. 4. The deadlines for filing motions in limine and other pretrial documents, the 11 settlement conference set for March 25, 2013, the pretrial conference date of May 7, 2013, 12 and the trial date of May 13, 2013 are VACATED. These dates shall be rescheduled at a 13 further Case Management Conference which will be scheduled after the appointment of pro 14 bono counsel. 15 5. 16 IT IS SO ORDERED. 17 This Order terminates Docket 47, 51 and 54. Dated: March 11, 2013 ______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -2- 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 FELIPE CALDERON, 5 Plaintiff, 6 7 8 v. DAVEY TREE SURGERY COMPANY et al, Defendant. / 9 10 Case Number: CV11-05486 SBA 11 CERTIFICATE OF SERVICE 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 11, 2013, I SERVED a true and correct copy(ies) of the attached, by placing 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 delivery receptacle located in the Clerk's office. 18 19 20 21 22 23 24 Felipe Calderon 4322 Center Avenue Richmond, CA 94804 Dated: March 11, 2013 Richard W. Wieking, Clerk 25 By: Lisa Clark, Deputy Clerk 26 27 28 -3-

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