Rusk v. Fidelity Brokerage Services
Filing
44
MEMORANDUM DECISION finding as moot 6 Motion to Seal Document ; finding as moot 10 Motion to Seal Document ; finding as moot 11 Motion to Seal Document ; finding as moot 12 Motion to Seal Document ; finding as moot 13 M otion to Seal Document. Plaintiff made numerous motions to seal documents that he filed. The documents are typically dozens or hundreds of pages of sundry materials that are irrelevant to any motion pending before the court. These documents often con tain private or sensitive information of others and are in violation of the courts policies and procedures. See, e.g., Fed. R. Civ. P. 5.2; DUCivR 5.2-1. The court is deeply troubled that Plaintiff often appears to redact or excerpt his own personal information and communications, but does not do so for others. Out of an abundance of caution for the privacy interests of individuals named in thefilings and consistent with the rules and policies of the court, the court hereby ORDERS all exhibits filed by Plaintiff in this action to be SEALED. If required, Plaintiff or others may move for specific exhibits or portions of exhibits to be unsealed. Plaintiff is warned that failure to comply with the Federal Rules of Civil Procedure, the local rules, or court orders, or continuing to engage in harassing or other inappropriate conduct may result in filing restrictions and/or sanctions, including terminating sanctions. Signed by Magistrate Judge Paul M. Warner on 5/31/16. (jlw)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ZACHARY R. E. RUSK,
MEMORANDUM DECISION
AND ORDER
Plaintiff,
v.
Case No. 2:15-cv-00853-JNP-PMW
FIDELITY BROKERAGE SERVICES,
LLC,
District Judge Jill N. Parrish
Defendant.
Magistrate Judge Paul M. Warner
District Judge Jill N. Parrish referred this case to Magistrate Judge Paul M. Warner
pursuant to 28 U.S.C. § 636(b)(1)(B).1
The court permitted Plaintiff Zachary R. E. Rusk
(“Plaintiff”) to proceed in forma pauperis under 28 U.S.C. § 1915.2 The matter was previously
referred to Magistrate Judge Brooke C. Wells.3 Having reviewed the status of the case, the court
enters this order regarding matters and motions pending before the court.
Contact with Court Personnel
Judge Wells previously imposed restrictions on Plaintiff’s ability to communicate with
opposing counsel due to Plaintiff’s pattern of excessive and abusive communications.4 Plaintiff
has engaged in a similar pattern of excessive and abusive communications with court personnel,
including hundreds of emails and calls to the clerk’s office.
1
Docket nos. 9 & 42.
2
Docket no. 3.
3
Docket no. 9.
4
Docket no. 36.
For example, Plaintiff sent
approximately 60 emails to the clerk’s office personnel in April, and approximately 80 emails in
May. On multiple occasions, he sent 10 or more emails in a single day. More than 25% of the
emails during the period discussed had attachments, and approximately half of the attachments
were in excess of 1 megabyte. Several files were so large that they overwhelmed the clerk’s
office intake box. Plaintiff also routinely calls or visits the clerk’s office for improper purposes.
Plaintiff’s emails, calls, and emails waste important court resources and are not proper.
Accordingly, the court ORDERS as follows:
Plaintiff is prohibited from communicating with court personnel via telephone,
email, or facsimile.
Court personnel are directed not to communicate with Plaintiff
electronically, and to report any attempts at electronic communications by Plaintiff to the
court. Plaintiff may communicate with personnel in the clerk’s office in-person and solely
for the purpose of filing a document. This restriction applies to Plaintiff for any pending or
future action involving Plaintiff. Violation of this order may result in the imposition of
filing restrictions and/or sanctions.
A copy of this order shall be provided to the relevant personnel in the clerk’s office, court
security officers, and the U.S. Marshals Service.
Prohibition on Contact with Represented Parties
Defendant Fidelity Brokerage Services, LLC (“Defendant”) filed a motion for an order
prohibiting Plaintiff from contacting Defendant or its agents.5 The motion is GRANTED.
Plaintiff, even though he is pro se, is required to know and comply with the rules and procedures
of the court. See DUCivR 83-1.1(f). Plaintiff may not have any direct contact with a represented
5
Docket no. 41.
2
party or witness. Plaintiff may only contact Defendant, its officers, managers, employees, or
agents through Defendant’s counsel. Defendant’s counsel is directed to report any further such
violation to the court. Any violation or attempted violation of this order may result in sanctions.
Appointment of Counsel
Judge Wells previously granted in part Plaintiff’s motion to appoint counsel.6
The
limited-engagement appointed was solely to advise Plaintiff as to whether he had a cognizable
claim and to review then-pending motions.7 Court personnel exerted herculean effort to find
counsel willing and able to undertake this limited representation. Due in large part to Plaintiff’s
own actions, the court has been unable to find any counsel willing to represent Plaintiff, even in
the limited role envisioned by Judge Wells.
Accordingly, this court now reconsiders Plaintiff’s motion to appoint counsel. “The
appointment of counsel in a civil case is left to the sound discretion of the district court.”
Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994). Although “[t]here is no constitutional right
to appointed counsel in a civil case,” Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1988) (per
curiam), the court may appoint an attorney to represent a litigant who is unable to afford counsel.
See 28 U.S.C. § 1915(e)(1). When deciding whether to appoint counsel, the court considers
certain factors “including the merits of the litigant’s claims, the nature of the factual issues raised
in the claims, the litigant’s ability to present his claims, and the complexity of the legal issues
raised by the claims.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quotations and
citations omitted). The court considers these factors below.
6
Docket no. 19.
7
Id.
3
First, the “burden is on the applicant to convince the court that there is sufficient merit to
his claim to warrant the appointment of counsel.” Hill v. SmithKline Beecham Corp., 393 F.3d
1111, 1115 (10th Cir. 2004) (quoting McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
Plaintiff fails to meet that burden here. Second, there is no indication that Plaintiff is incapacitated
or unable to pursue or present this case adequately. Finally, the court finds that the issues raised
by Plaintiff’s complaint do not appear complicated or difficult to explain.
For the foregoing reasons, Plaintiff’s motion for appointment of counsel is DENIED at
this time. The order restricting further filing by Plaintiff in this matter pending appointment of
counsel is hereby VACATED.8
Status Conference
The status conference set for June 16, 2016 is hereby VACATED.
Further Briefing on Motion to Dismiss
Defendant filed a motion to dismiss on January 12, 2016.9 Plaintiff filed an opposition
on February 26, 2016.10 Given the court’s determination regarding the appointment of counsel
and out of an abundance of caution, the court hereby ORDERS as follows:
Plaintiff shall have up to and including June 17, 2016 to file any additional briefing
in opposition to the motion to dismiss. Defendant shall file any additional reply on or
before June 24, 2016.
8
Docket no. 33.
9
Docket no. 14.
10
Docket no. 29.
4
Sealing of Exhibits
Plaintiff made numerous motions to seal documents that he filed. The documents are
typically dozens or hundreds of pages of sundry materials that are irrelevant to any motion
pending before the court. These documents often contain private or sensitive information of
others and are in violation of the court’s policies and procedures. See, e.g., Fed. R. Civ. P. 5.2;
DUCivR 5.2-1. The court is deeply troubled that Plaintiff often appears to redact or excerpt his
own personal information and communications, but does not do so for others.
Out of an abundance of caution for the privacy interests of individuals named in the
filings and consistent with the rules and policies of the court, the court hereby ORDERS all
exhibits11 filed by Plaintiff in this action to be SEALED. If required, Plaintiff or others may
move for specific exhibits or portions of exhibits to be unsealed. Plaintiff’s motions to seal are
hereby DENIED as moot.12
Plaintiff is warned that failure to comply with the Federal Rules of Civil Procedure, the
local rules, or court orders, or continuing to engage in harassing or other inappropriate conduct
may result in filing restrictions and/or sanctions, including terminating sanctions.
IT IS SO ORDERED.
DATED this 31st day of May, 2016.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
11
Docket nos. 10-1, 10-2, 11-1, 12-1, 13-1, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, and 32.
12
Docket nos. 6, 10, 11, 12, and 13.
5
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