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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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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6 FELIPE CALDERON,

Plaintiff,

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vs.

Case No: C 11-5486 SBA
ORDER GRANTING PLAINTIFF’S
REQUEST FOR APPOINTMENT
OF COUNSEL

9 DAVEY TREE SURGERY COMPANY,
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Defendant.

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Plaintiff has submitted a pro se request for the Court to appoint counsel to represent

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him in this action. Dkt. 92 at 2-3. “[I]t is well-established that there is generally no

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constitutional right to counsel in civil cases.” United States v. Sardone, 94 F.3d 1233, 1236

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(9th Cir. 1996). Nonetheless, under 28 U.S.C. § 1915(e)(1), the Court has the discretion to

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appoint counsel to “any person unable to afford counsel.” The discretionary appointment

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of counsel typically is reserved for cases involving “exceptional circumstances.” Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “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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petitioner to articulate his claims pro se in light of the complexity of the legal issues

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

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reaching a decision.” Id.

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Here, Plaintiff is unable to communicate in English, which necessarily impedes his

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ability to articulate his claims to either the Court or a jury. Although Plaintiff’s motion

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does not specifically address his likelihood of success, the Court notes that the law and

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motion cut-off lapsed without Defendant filing any dispositive motion in this case. Dkt. 17.

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Given that fact, it is reasonable to infer that there are triable issues of material fact that must

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be resolved by a trier of fact. Moreover, the Federal Pro Bono Project, has indicated that it

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is likely that it will be able to find a volunteer attorney to represent Plaintiff in this action.

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Accordingly,

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IT IS HEREBY ORDERED THAT:

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Plaintiff’s Motion to Appoint Counsel is GRANTED.

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2.

This matter is REFERRED to the Federal Pro Bono Project for the purposes

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of securing legal representation for Plaintiff in this action, for all purposes.
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The instant action is temporarily STAYED while the Federal Pro Bono

Project locates volunteer counsel for Plaintiff.
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The deadlines for filing motions in limine and other pretrial documents, the

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settlement conference set for March 25, 2013, the pretrial conference date of May 7, 2013,

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and the trial date of May 13, 2013 are VACATED. These dates shall be rescheduled at a

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further Case Management Conference which will be scheduled after the appointment of pro

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bono counsel.

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5.

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IT IS SO ORDERED.

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This Order terminates Docket 47, 51 and 54.

Dated: March 11, 2013

______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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FELIPE CALDERON,

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Plaintiff,

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v.
DAVEY TREE SURGERY COMPANY et al,
Defendant.
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Case Number: CV11-05486 SBA

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CERTIFICATE OF SERVICE

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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.

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Felipe Calderon
4322 Center Avenue
Richmond, CA 94804

Dated: March 11, 2013
Richard W. Wieking, Clerk

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By: Lisa Clark, Deputy Clerk

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