Martinez v. Marriott International

Filing 22

ORDER denying without prejudice 19 Letter, and vacating the Scheduling Conference, by Magistrate Judge Kathleen M. Tafoya on 1/7/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–02128–MSK–KMT
GABE MARTINEZ,
Plaintiff,
v.
MARRIOTT INTERNATIONAL,
Defendant.

ORDER

This matter is before the court regarding the proposed Scheduling Order filed by
Defendant (Doc. No. 21, filed Jan. 6, 2015), as well as Plaintiff’s letters dated January 6, 2015
seeking, respectively, an “extension concerning the scheduling order” (Doc. No. 20), and an
attorney to represent him (Doc. No. 19).
In the proposed Scheduling Order, Defendant’s counsel explains that he initially called
Plaintiff during the week of December 22, 2014, to discuss preparing the proposed Scheduling
Order, but, because Plaintiff did not answer, he was only able to request a return call via
voicemail. Between that initial phone call and January 5, 2015, Defendant’s counsel and
Plaintiff played a game of “phone tag.” Plaintiff and Defendant’s counsel ultimately connected
for the first time on January 6, 2015, the day the proposed Scheduling Order was due, at which
time Plaintiff explained that he believed counsel would be appointed to represent him in this case
and, as a consequence, he was unaware of his obligations to coordinate with Defendant to

prepare the proposed Scheduling Order. As such, Defendant filed the proposed Scheduling
Order without Plaintiff’s input.
One of Plaintiff’s January 6, 2015 letter confirms that Plaintiff mistakenly believed that
an attorney would be assigned to represent him and seeks an “extension concerning the
scheduling order.” Plaintiff’s second January 6, 2015 letter requests that an attorney be assigned
to represent him.
The court first addresses Plaintiff’s request for counsel. Unlike a criminal defendant, a
plaintiff in a civil case has no constitutional right to appointed counsel. See Johnson v. Johnson,
466 F.3d 1213, 1217 (10th Cir. 2006). Rather a court has discretion to request volunteer counsel
for a civil litigant in forma pauperis. 28 U.S.C. § 1915(e)(1) (“The court may request an
attorney to represent any person unable to afford counsel.”). In determining whether to appoint
counsel under 28 U.S.C. § 1915(e), the Tenth Circuit has directed district courts to evaluate “the
merits of a [litigant’s] claims, the nature and complexity of the factual and legal issues, and the
[litigant’s] ability to investigate the facts and present his claims.” Hill v. SmithKline Beecham
Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (citing Rucks v. Boergermann, 57 F.3d 978, 979
(10th Cir. 1995)). Plaintiff’s Letter does not address any of the factors outlined in Hill.
Accordingly, Plaintiff’s request for an attorney to represent him will be denied.
The court turns to Plaintiff’s failure to participate in the preparation of the proposed
Scheduling Order and his request for an “extension concerning the scheduling order.” Rather
than granting Plaintiff an extension of time to complete the Scheduling Order, the court finds the
best course of action is to reset the Scheduling Conference. Plaintiff does not specify how much
additional time he needs to prepare his contributions to the proposed Scheduling Order, and the

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court would be loathe to enter a Scheduling Order that does not contain his input. Further, the
court finds that Plaintiff’s good faith, but mistaken, belief that he was entitled to have counsel
appointed to represent him, and his consequent ignorance of his obligations to complete the
Scheduling Order, constitute good cause for holding the Scheduling Conference outside the time
constraints of Fed. R. Civ. P. 16(b)(2).
The parties are advised, however, that, absent unforeseen and extraordinary
circumstances, the Scheduling Conference will not be further rescheduled. In addition, Plaintiff
is advised that he must coordinate with Defendants to fully comply with all obligations outlined
in the order resetting the scheduling conference.
Therefore, for the foregoing reasons it is
ORDERED that Plaintiff’s letter request for appointment of counsel is DENIED without
prejudice. It is further
ORDERED that the Scheduling Conference set for January 13, 2015 is VACATED. The
Scheduling Conference will be reset by separate order.
Dated this 7th day of January, 2015.

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