Antonetti v. Neven et al

Filing 52

ORDER Denying 49 Motion for Appointment of Counsel; and Denying 50 Motion to Extend Time; and Denying 51 Motion to Compel. Signed by Magistrate Judge Cam Ferenbach on 11/1/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOSEPH ANTONETTI,

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Plaintiff,
v.
DWIGHT NEVEN, et al.,

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Defendants.

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2:08-cv-01020-KJD-LRL
ORDER

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Before the court are pro se plaintiff Joseph Antonetti’s Motion for Appointment of Counsel

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(#49), Motion To Extend Time (#50), and Motion To Compel (#51)1. The time to file an opposition

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to the motion to compel has not passed, but, as discussed below, the court is able to rule on the motion

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at this time.

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On October 17, 2011, the court entered an order (#47) denying plaintiff’s motion for

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appointment of counsel (#37) and granting plaintiff’s motion for discovery (#40). The court ordered

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that discovery would close ninety (90) days from the date of the order, and held that as plaintiff was

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capable of articulating his claims, appointing counsel was not warranted. (#47). The court stated that

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it would “entertain subsequent motions to appoint counsel as discovery progresses...” Id. Prior to the

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court entering its order (#47), the defendants filed their answer (#46) to the plaintiff’s amended

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complaint (#25). In the defendants’ answer, they denied most of the allegations in the amended

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complaint and asserted several affirmative defenses (#46).

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In the present motion for appointment of counsel (#49), plaintiff’s entire request consists of

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The court notes that plaintiff filed a one page document titled “response, request and order,” and the Clerk of
the Court, recognizing three separate requests for relief, separated the document into three different filings (#49, #50,
and #51).

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“Joseph Antonetti...asks [that] #1 court grant Mr. Antonetti counsel.” Granting plaintiff counsel is not

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warranted at this time. First, plaintiff does not provide the court with any “exceptional circumstances”

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that have come about since the court denied his previous motion (#47). Terrell v. Brewer, 935 F.2d

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1015, 1017 (9th Cir. 1991)(holding that the court may appoint counsel under 28 U.S.C. § 1915 only

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under exceptional circumstances.). Second, plaintiff has failed to file points and authorities in support

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of his request for appointment of counsel. Local Rule 7-2(d)(stating that “[t]he failure to file points and

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authorities in support of the motion shall constitute a consent to the denial of the motion.”). The court

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recognizes that plaintiff is proceeding pro se. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 584

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(1972)(holding that pro se plaintiffs are held to a less stringent standard than those who are represented

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by counsel.). However, he is still required to familiarize himself with the Federal Rules of Civil

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Procedure as well as the Local Rules of this court. See Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th

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Cir. 1986)(holding that pro se parties are not excused from following the rules and orders of the court).

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Third, the court specifically stated in its previous order that it would entertain subsequent motions for

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appointment of counsel “as discovery progresses...” (#47). That order was entered on October 17,

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2011, and the present motion was filed on October 19, 2011. (#47 and #49). Therefore, as there is no

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possibility that discovery has “progressed” in the short amount of time, plaintiff’s motion is premature.

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In plaintiff’s motion to extend discovery (#50) and motion to compel (#51), he asserts that he

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“doesn’t understand what defendants’ “answer” “document 46" is,” and that it appears to him to be

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defendants’ refusal to “answer interrogatories, [or] provide discovery, and [attempt to] resubmit already

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defeated defenses.” Upon review of the defendants’ answer (#46), the court finds that it is simply an

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answer to plaintiff’s amended complaint, which defendants are permitted to file pursuant to Fed. R. Civ.

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P. 7 and 8. In accordance with Rule 8, defendants asserted several defenses to the allegations contained

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in the amended complaint. (#46); Fed. R. Civ. P. 8(b) and (c)(permitting the responding party to admit

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or deny allegations and assert affirmative defenses). As stated above, plaintiff should familiarize

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himself with these rules. See Jacobsen, 790 F.2d 1362, 1364-65. Further, defendants do not mention

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interrogatories in their answer, and only refer to discovery in stating that they reserve the right to assert

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additional affirmative defenses if discovery warrants. (#46).

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Plaintiff also states in his motions (#50 and #51) that he “intends to submit further

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interrogatories to defendants,” and asks this court for an order “giv[ing] [him] time to submit further

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interrogatories, [and] order[ing] defendants [to] answer and supply discovery.” These requests are also

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premature. The court’s previous order (#47) provides that discovery will close ninety (90) days from

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October 17, 2011. There is no need to give plaintiff more “time to submit further interrogatories,” as

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he has adequate time to do so, and only days have passed since discovery began. Further, it is not

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necessary for the court to “order defendants [to] answer and supply discovery,” because defendants are

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already required to do so by the rules, and the plaintiff has not identified any discovery requests that he

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has served on the defendants that require such an order. See Fed. R. Civ. P. 33, 34, 36 and 37.

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Accordingly, and for good cause shown,

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IT IS ORDERED that plaintiff Joseph Antonetti’s Motion for Appointment of Counsel (#49),

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Motion To Extend Time (#50), and Motion To Compel (#51) are DENIED.
DATED this 1st day of November, 2011.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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