Hawbecker v. Hall

Filing 71

MEMORANDUM ORDER, ( Jury Selection and Jury Trial set for 3/2/2017 8:30 AM before Judge Royce C. Lamberth, Pretrial Conference set for 2/23/2017 3:30 PM before Judge Royce C. Lamberth). Signed by Judge Royce C. Lamberth. (aej)

FILED

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

JAN 252017
CLERKS U8. DISTRICT CLERK

)

PAUL ERIC HAWBECKER,

WESTER

)

BY

ICT Qf TEXAS
(jJ1J1AA.J

DEP'JrY

)

Plaintiff,

)
)

v.

)

Case No: 5:14-cv-1O1O-RCL

)

MICHELLE MARIE HALL

)
)
)

Defendant.

)

MEMORANDUM ORDER
Plaintiff Paul Eric Hawbecker brings this action against defendant Michelle Marie Hall for
libel and defamation in violation of Texas Civil Practices & Remedies Code Section 73.001. On

December 9, 2016, Judge Xavier Rodriguez granted summary judgment to Mr. Hawbecker on the
issue of liability, finding that he had established, as a matter of law, all elements of his cause of
action and that Ms. Hall had failed to establish a defense. Judge Rodriguez found, however, that
a trial was required on the issue of damages. Mr. Hawbecker seeks actual damages in the amount

of $242,000, and exemplary damages in the amount of $400,000.
Prior to granting summary judgment, Judge Rodriguez denied Ms. Hall's motion for the

appointment of counsel, finding that the appointment of counsel was not warranted at the time.
Judge Rodriguez agreed, however, to reconsider the issue of the appointment of counsel if and

when this case proceeded to trial. This case was reassigned to the undersigned judge on January
5, 2017. The Court now considers whether to appoint counsel for Ms. Hall for the purposes

of a

trial relating to the appropriate damages in this case, and finds that the appointment of counsel for

the purpose of a limited trial on damages is not warranted.

Parties in civil cases do not enjoy a constitutional right to counsel. District courts have
discretion to appoint counsel where "exceptional circumstances" exist. Branch v. Cole, 686 F.2d
264, 266 (5th Cir. 1982). Although "[nb comprehensive definition of exceptional circumstances
is practical," id., courts consider the following factors: "(1) the type and complexity of the case;
(2) whether the indigent is capable of adequately presenting his case; (3) whether the indigent is

in a position to investigate adequately the case; and (4) whether the evidence will consist in large

part of conflicting testimony so as to require skill in the presentation of evidence and in cross
examination." Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (internal citations omitted).
In addition, courts "should also consider whether the appointment of counsel would be a service
[to the parties and the Court] by sharpening the issues in the case, shaping the examination

of

witnesses, and thus shortening the trial and assisting in a just determination." Id.
Considering the above listed factors, the Court finds that exceptional circumstances do not
exist here that would warrant the appointment of counsel. This case is a fairly straightforward
defamation case, with no novel or complex questions of fact or law. Cf Jackson

v.

Dallas Police

Dep 't, 811 F.2d 260, 262 (5th Cir. 1986) (finding that even though "section 1983 cases are by their
nature more complex than many other cases," the instant case was not so exceptional to warrant

the appointment of counsel). Furthermore, liability has already been determined in this case. The
only remaining issue is that of damages. There is no indication that the question of damages in

this case will be at all complex or unusual.
In addition, Ms. Hall appears able to adequately investigate and present her case. There
is no indication that Ms. Hall is unable to review and respond to any evidence in this case. Cf

Naranjo v. Thompson, No. PE:1 1-CV-00105-RAJ, 2013 WL 11299564, at *2 (W.D. Tex. June 5,
2013), vacated on other grounds, 809 F.3d 793 (5th Cir. 2015) (finding that the appointment of

2

counsel was necessary because "due to the security sensitive nature of [discovery
provided to the
court under seal], in light of Plaintiffs status as an inmate, Plaintiff is unable to review and
respond
to that discovery"). And, even though Ms. Hall has at times indicated that she
may be unable to

travel to Texas to attend a trial, this alone does not warrant the appointment of counsel. See
Cooper
v.

Sher

Lubbock Cly., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) ("[Plantiff's] assertion that his

'mental anguish' prevents his attending to this suit plainly does not satisfy the
'exceptional
circumstances' requirement set out in Ulmer.").

Regarding the final factor, whether the evidence will consist in large part of
conflicting
testimony so as to require skill in the presentation of evidence and in cross examination,
the Court
finds that the circumstances here are not extraordinary. Again, the only issue to
be litigated is
damages. The Court expects that the evidence will largely consist of unconflicted
testimony

regarding Mr. Hawbecker's lost income, lost earnings, mental anguish damages, and
other

expenses. If the Court reaches the issue of exemplary damages, it expects that the
testimony will
focus largely on Ms. Hall's own finances and her intent.
presentation of expert testimony from either party. Cf Moore

The Court does not expect the
v.

Mabus, 976 F.2d 268, 272 (5th

Cir. 1992) (finding that the appointment of counsel was necessary in part
because "the apparently

essential testimony from experts on HIVAIDS management in the prison
environment will
require professional trial skills")
Finally, the Court finds that the appointment of counsel here would not greatly
sharpen the
issues in this case, shape the examination of witnesses, or significantly shorten
the trial and assist

in a just determination.

For the foregoing reasons, the Court concludes that exceptional

circumstances do not exist and it declines to appoint counsel for Ms. Hall.

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Accordingly, it is hereby ORDERED that the above entitled and numbered case is set for

TRIAL in Courtroom 4, on the Third Floor of the John H. Wood, Jr. United States Courthouse,
655

East Cesar E. Chavez Boulevard, San Antonio, TX, on March 2, 2017 at 8:30 A.M. Defendant

must appear in person

if she wishes to present evidence or cross examine witnesses. The Court

advises defendant that the trial in this case is for the limited purpose of determining damages. It
is not an opportunity for defendant to relitigate liability.

It is further hereby ORDERED that the above entitled and numbered case is set for

PRETRIAL CONFERENCE in Courtroom 4, on the Third Floor of the John H. Wood, Jr. United
States Courthouse, 655 East Cesar E. Chavez Boulevard, San Antonio, TX, on February 23, 2017
at 3:30 P.M. The Court will allow defendant to participate in the pretrial conference via
telephone.

Defendant should prepare a list of witnesses whom she would like to call to testify. The Court
will discuss with defendant how to ensure the presence of such witnesses at trial.

Regarding pretrial submissions, pursuant to Local Rule 16(e) the Court ORDERS that

plaintiff serves and files the following information by close of business on February 2, 2017. The
Court ORDERS that defendant serves and files the following information by the close of
business
on February 9, 2017.
1.

A list of stipulated facts.

2.

An appropriate identification of each exhibit as specified in this rule (except those
to be used for impeachment only), separately identifying those that the party

expects to offer and those that the party may offer if the need arises.
3.

The name and,

if not previously provided, the address and telephone number of

each witness (except those to be used for impeachment only), separately identifying

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those whom the party expects to present and those whom the party may call if the
need arises.
4.

The name of those witnesses whose testimony is expected to be presented by means

of a deposition and designation

by retèrence to page and line

of the testimony to

be offered (except those to be used for impeachment only) and, if not taken

stenographically, a transcript of the pertinent portions of the deposition testimony.
5.

Proposed findings of fact and conclusions of law,

6.

Any motions in limine,

7.

An estimate of the probable length of trial.

Pursuant to Local Rule 16(t) the Court ORDERS that both parties serve and file the
following information by close of business on February 16, 2017.
1.

A list disclosing any objections to the use under Rule 32(a)

of deposition testimony

designated by the other party.
2.

A list disclosing any objection, together with the grounds therefore, that may be

made to the admissibility of any exhibits. Objections not so disclosed, other than

objections under Federal Rules of Evidence 402 and 403 shall be deemed waived
unless excused by the Court for good cause shown.
It is SO ORDERED.

Date: January

.

2017
Royce C. Lamberth
United States District Judge