Barnett v. Ubimodo Inc. et al

Filing 12

OPINION AND ORDER: Granting Motion for Leave to Proceed in Forma Pauperis 2 and 4 ; Denying Motion for Appointment of Counsel 5 ; Denying Motion to preserve evidence 6 . Signed on 4/20/2018 by Judge Michael J. McShane. (cp) Modified on 4/20/2018 (cp).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KELLY A. BARNETT,
Plaintiff,
v.

Case. No. 6:18-cv-00418-MC
OPINION AND ORDER

UBIMODO INC., at al,
Defendants.
_____________________________
MCSHANE, Judge:
Pro se plaintiff Kelly A. Barnett seeks leave to proceed in forma pauperis (IFP) (ECF
No. 2 & 4), appointment of pro bono counsel (ECF No. 5), and order to preserve evidence (ECF
No. 6).
I.

Application to proceed IFP
Generally, all parties instituting any civil action in United States District Court must pay

a statutory filing fee. 28 U.S.C. § 1914(a). However, the federal IFP statute, 28 U.S.C. §
1915(a)(l), provides indigent litigants an opportunity for meaningful access to the federal courts
despite their inability to pay the costs and fees associated with that access. In order for a litigant
to proceed IFP, a court must make two determinations. First, a court must determine whether the
litigant is unable to pay the costs of commencing the action. 28 U.S.C. § 1915(a)(l). Second, it
must assess whether the action is frivolous, malicious, fails to state a claim upon which relief

1 – OPINION AND ORDER

may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B).
Based on plaintiff’s application to proceed IFP (ECF No. 2), plaintiff is unable to pay the
costs of commencing the action. Additionally, a reading of the complaint shows that it
“contain[s] sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). Plaintiff’s request for leave to proceed IFP (ECF No. 2 & 4) is
GRANTED.
II.

Motion for pro bono counsel
There is no constitutional right to counsel in a civil case. United States v. 30.64 Acres of

Land, 795 F.2d 796, 801 (9th Cir. 1986). However, pursuant to 28 U.S.C. § 1915(e), this court
has discretion to request volunteer counsel for indigent plaintiffs in exceptional circumstances.
Id.; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990); Wilborn v. Escalderon, 789 F.2d
1328, 1331 (9th Cir. 1986). While this court may request volunteer counsel in exceptional cases,
it has no power to make a mandatory appointment. Mallard v. U.S. Dist. Court of Iowa, 490 U.S.
296, 301-08 (1989).
After reviewing Plaintiff’s motion and pleadings, the court does not find that exceptional
circumstances exists warranting appointment of counsel. Plaintiff’s motion for appointment of
pro bono counsel (ECF No. 5) is DENIED.
III.

Motion for order to preserve evidence
As noted in plaintiff’s motion, parties have an “obligation to preserve evidence [ ] when

the party has notice that the evidence is relevant to litigation or when a party should have known
that the evidence may be relevant to future litigation.” Zubulake v. UBS Warburg LLC, 220

2 – OPINION AND ORDER

F.R.D. 212, 216 (S.D.N.Y. 2003)1; National Assoc. of Radiation Survivors v. Turnage, 115
F.R.D. 543, 556-67 (N.D.Cal. 1987). Defendants have yet to be served in this case. When they
are served, defendants are obligated to preserve evidence irrespective of any order of the court.
Plaintiff’s motion for order to preserve evidence (ECF No. 6) is DENIED.
IT IS SO ORDERED.

DATED this 20th day of April, 2018.
____/s/Michael J. McShane________
Michael J. McShane
United States District Judge

1

Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 436 (2nd Cir. 2001) (citing Kronisch v. U.S.,
150 F.3d 112, 126 (2nd Cir. 1998). See also Silvestri v. General Motors Corp., 271 F.3d 583,
591 (4th Cir.2001) (“The duty to preserve material evidence arises not only during litigation but
also extends to that period before the litigation when a party reasonably should know that the
evidence may be relevant to anticipated litigation.”) (citing Kronisch, 150 F.3d at 126).
3 – OPINION AND ORDER