Webb v. Olive Garden Italian Restaurants/Darden Restaurants et al

Filing 67

ORDER DENYING PLAINTIFF'S REQUEST FOR LIMITED APPOINTMENT OF COUNSEL WITHOUT PREJUDICE TO RENEWED MOTION ON FURTHER SHOWING; ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS by Judge Patricia V. Trumbull denying 61 Motion for Sanctions (pvtlc2, COURT STAFF) (Filed on 9/3/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVID WEBB, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) Plaintiff, ) ) v. ) ) OLIVE GARDEN RESTAURANTS, et al., ) ) Defendants. ) ___________________________________ ) Case No.: C 08-04913 PVT Order Denying Plaintiff's Request for Limited Appointment of Counsel Without Prejudice to Renewed Motion on Further Showing; Order Denying Plaintiff's Motion for Sanctions

Plaintiff David Webb requests a limited appointment of counsel "to assist in drafting an adequately plead complaint." See Request for Limited Appointment of Counsel filed on June 4, 2009. In addition, plaintiff Webb moves for sanctions pursuant to Rule 26(a) and Civ. L.R. 3-16. See Docket No. 61. Based on the file herein, IT IS HEREBY ORDERED that plaintiff Webb's request for limited appointment of counsel is denied without prejudice to a renewed motion in the event plaintiff can make an adequate showing that he qualifies for a limited appointment of counsel.1 As stated before, pursuant to 28 U.S.C.A. §1915(e)(1), "[t]he court may request an attorney to represent any person unable to afford counsel." However, "[t]here is no automatic right to the appointment of counsel; and in a civil case, a federal court has considerable discretion in The holding of this court is limited to the facts and the particular circumstances underlying the present request and motion. ORDER, page 1
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determining whether to appoint counsel." See, e.g., L.C. Hall v. Trisun, Not Reported in F. Supp.2d, 2005 WL3348956 (W.D. Tex.). Absent specific statutory authorization, an appointment of counsel may be made in "extraordinary circumstances." Id. (internal citations omitted). A finding of "extraordinary circumstances" generally turns on two factors: (1) the type and complexity of the case; and (2) the abilities of the individual bringing the action. Id. In the instant case, plaintiff Webb alleges that certain employees at the Olive Garden restaurant committed various acts of assault against him and further defamed him. He further alleges claims for intentional infliction of emotional distress and negligent supervision. Aside from showing financial need (based on his IFP) and his numerous and unsuccessful efforts to engage counsel, plaintiff Webb has not demonstrated any "extraordinary circumstances" that would warrant an appointment of counsel here. IT IS FURTHER ORDERED that this order is without prejudice to a renewed motion for appointment of counsel in the event defendant is later able to present extraordinary circumstances that warrant further review. IT IS FURTHER ORDERED that plaintiff Webb's motion for sanctions is denied. Dated: September 3, 2009 PATRICIA V. TRUMBULL United States Magistrate Judge

ORDER, page 2

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copies mailed on September 3, 2009 to: David Webb PO Box 312 Clearfield, Utah 84089

ORDER, page 3