W. v. Zirus et al
Filing
44
ORDER DENYING 39 Motion for Reconsideration. Signed by Judge Nancy Stein Nowak. (rg)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
C.W., as Next Friend of
C.W., a Minor,
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Plaintiff,
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v.
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SCOTT ASH JAMES ZIRUS,
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CAMP STEWART FOR BOYS, INC.,
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AMERICAN INSTITUTE FOR FOREIGN §
STUDY, INC., d/b/a CAMP AMERICA,
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Defendants.
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CIVIL ACTION NO.
SA-10-CV-1044 OG (NN)
ORDER DENYING REQUEST TO RECONSIDER (DOCKET ENTRY 39)
The matter before the Court is defendant Scott Ash James Zirus’s motion to reconsider
the order denying his earlier motion for appointment of counsel (docket entry 39).
As an initial matter I note that defendant did not serve counsel for all parties with a copy
of this motion or with other motions which he has filed. Defendant Zirus is advised that he is
obligated under both the Federal Rules of Civil Procedure and this Court's Local Rules to send a
copy of all pleadings, motions or other documents he submits to the Clerk of this Court for filing
to plaintiff and other defendants or, after an attorney has made an appearance for a party, the
party’s counsel of record herein. The Court may disregard any pleading, motion, or other
document submitted for filing by defendant Zirus that fails to contain a "certificate of service"
stating the date and method (e.g., hand delivery, certified mail or regular mail) by which the
defendant sent a copy of that pleading, motion or document to the other parties or the parties’
counsel of record. Once an attorney makes an appearance on behalf of a party, the defendant
must send that party's copy of any pleading, motion, or document submitted for filing by
defendant to the party's attorney. All parties must be served with any document filed with the
Court.
Defendant is also advised that Rule CV-7(d) of this Court's Local Court Rules provides
that a party opposing a motion must file a response to the motion within eleven (11) days after a
copy of the motion is served upon that party. A failure by that party to file such a timely
response may be construed by the Court as a lack of opposition to the motion and result in the
Court granting the motion. Furthermore, defendant is advised that, pursuant to Rule 8(b)(6),
Fed.R.Civ.P., averments in a pleading or motion to which a responsive pleading is required are
admitted when not denied in the responsive pleading. Therefore, in the event that a party files a
motion which defendant opposes, defendant must file a response or opposition to the motion
within eleven (11) days after a copy of the motion is served upon the defendant. A failure by the
defendant to file a timely response to an opposing party's motion may result in the motion being
granted if there is no opposition on file. Defendant is advised that the filing of a motion
requesting appointment of counsel will not excuse a failure by defendant to either timely respond
to an opposing party's motion or comply with defendant's obligations under the Federal Rules of
Civil Procedure, the Local Rules or this Court, and the Orders of this Court.
Defendant is further advised to immediately notify the Clerk and other parties’ counsel in
writing of any change in his address. Defendant shall caption any such change of address
advisories as "notice to the Court of Change of Address" and not include any motions or other
matters in such notice. This notice shall contain only information pertaining to the address
change and the effective date of such change of address. Failure by defendant Zirus to
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immediately notify the Clerk and counsel for all parties of any change in his mailing address will
be interpreted by the Court as a failure to defend and may result in the Court recommending
dismissal of defendant's remaining pending motions.
With respect to the motion to reconsider, defendant argues that exceptional circumstances
in this case – including what he labels as the complexities of this civil case, his I ndigency, the
pendency of his criminal appeal, and his foreign status – warrant appointment of counsel. I
disagree. As I previously noted, the court has no authority to appoint counsel for a defendant in a
civil case. There are no funds available to reimburse counsel for representation of an indigent
defendant in a civil case. The court may request counsel to represent a indigent civil litigant such
as this defendant, but only if there are exceptional circumstances present. At this stage of this
case, I cannot find that exceptional circumstances warrant appointment of counsel for defendant.
Further, none of the arguments advanced by defendant constitute exceptional circumstances.
It is therefore ORDERED that the motion to reconsider is DENIED.
SIGNED on June 6, 2011.
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NANCY STEIN NOWAK
UNITED STATES MAGISTRATE JUDGE
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