Smith-Jeter v. Artspace Everett Lofts Condominium Association
Filing
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ORDER DIRECTING CLERK TO IDENTIFY PRO BONO COUNSEL AND LCR 39.1 NEUTRAL FOR EARLY ADR PROCEEDINGS by Hon. James P. Donohue. (TF) cc: Wanda Smith-Jeter
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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WANDA E. SMITH-JETER,
NO.
Plaintiff,
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C17-1857-JPD
v.
ARTSPACE EVERETT LOFTS
CONDOMINIUM ASSOCIATION,
ORDER DIRECTING CLERK TO
IDENTIFY PRO BONO COUNSEL AND
LCR 39.1 NEUTRAL FOR EARLY ADR
PROCEEDINGS
Defendant.
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This matter comes before the Court sua sponte following an April 26, 2018 status
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conference with the parties in this matter. Dkt. 23. During the status conference, both parties
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expressed interest in participating in the Court’s early alternative dispute resolution (“ADR”)
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procedure pursuant to LCR 39.1, and plaintiff advised the Court that she would like to be
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represented by pro bono counsel during those proceedings. Having reviewed plaintiff’s
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amended complaint, defendant’s answer, the “Plan of the U.S. District Court for the W.D. of
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Washington for the Representation of Pro Se Litigants in Civil Rights Actions” (the “Pro Bono
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Plan”), and the balance of the record, the Court GRANTS plaintiff’s request for appointment of
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counsel for the limited purpose of (1) helping plaintiff file a second amended complaint that
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clarifies her claims and names the correct parties; and (2) conducting an early ADR procedure
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pursuant to LCR 39.1.
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ORDER - 1
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Generally, the decision to appoint pro bono counsel rests within “the sound discretion
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of the trial court and is granted only in exceptional circumstances.” Agyeman v. Corrections
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Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional
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circumstances requires an evaluation of both the likelihood of success on the merits and the
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ability of the plaintiff to articulate his or her claims pro se in light of the complexity of the
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legal issues involved. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). These
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factors must be viewed together before reaching a decision on a request for counsel. Id.
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At this early stage of litigation, plaintiff has failed to demonstrate that exceptional
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circumstances warrant the appointment of counsel for the duration of the case. However, the
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Court also finds that the unique circumstances of this case indicate that the interests of justice
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will best be served if counsel from the Western District Pro Bono Panel is appointed to
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represent the plaintiff during an early ADR procedure pursuant to LCR 39.1.
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In making this finding, the undersigned has considered the nature and complexity of
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plaintiff’s factual and legal claims. The undersigned finds that the pro se plaintiff, defendant,
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and the Court will all benefit from appointed counsel’s assistance in improving communication
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between the parties, limiting, narrowing or simplifying the issues in dispute via the filing of a
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second amended complaint, and potentially achieving settlement of some or all issues between
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the parties through an early ADR procedure.
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The parties are directed to read and comply with the deadlines and procedures outlined
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in § 3(g)-(i) of the Pro Bono Plan.1 Specifically, following entry of the Order of Appointment
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by the undersigned, the Clerk shall send the appointed attorney a Notice of Appointment and
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Interim Notice of Appearance, which shall include a statement that defense counsel must only
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communicate with the appointed attorney, and not the plaintiff, in accordance with Rules
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4.2(b) and 4.3(b) of the Washington Rules of Professional Conduct. See Pro Bono Plan § 3(g).
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The Pro Bono Plan is available on the Court’s website via links to “Attorneys” and
“Pro Bono Panel” (www.wawd.uscourts.gov/attorneys/pro-bono-panel).
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ORDER - 2
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The Clerk’s Notice of Appointment and Interim Notice of Appearance also suspends the
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provisions of LCR 16(a) and (d) requiring a scheduling conference, joint status report, and
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scheduling order, until completion of the ADR proceedings. See Pro Bono Plan § 3(i).
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As soon as practical following appointment, pro bono counsel is directed to confer with
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the plaintiff regarding the ADR procedures available under LCR 39.1(a)(3). Pro bono counsel
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shall then meet and confer with opposing counsel to develop a plan for an early ADR
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procedure, and shall attempt to reach agreement on the factors listed in § 3(i)(iv)(A)-(E). The
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parties are advised that they are required to submit a Joint Pro Bono ADR Status Report
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addressing these factors not later than twenty (20) days following the Clerk’s Notice of
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Appointment and Interim Notice of Appearance. See Pro Bono Plan to § 3(i)(v).
Unless otherwise ordered, the early ADR procedure shall be completed not later than
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seventy-five (75) days following the Clerk’s Notice of Appointment and Interim Notice of
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Appearance. See Pro Bono Plan § 3(i)(vii). Upon completion of the ADR procedure,
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appointed counsel shall submit a report to the Court and opposing counsel stating (1) when the
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ADR procedure occurred, and (2) whether the case settled as to some or all issues.2 Following
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submission of this report, appointed counsel’s limited representation shall be deemed
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complete, and counsel may submit a proposed order terminating the limited representation. At
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that time, appointed counsel may move for an award of attorney’s fees under any applicable
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authority, although the Court is unable to assure counsel of compensation.
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Accordingly, the Clerk of the Court is DIRECTED to identify counsel from the Pro
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Bono Panel to represent plaintiff for the limited purpose of helping plaintiff file a second
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amended complaint and conducting an early ADR procedure pursuant to LCR 39.1. Upon
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notification from the Clerk, the undersigned shall appoint the selected attorney to represent the
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If the ADR procedure was a mediation, however, the mediator’s report required by
LCR 39.1(c)(6) will serve in lieu of appointed counsel’s report.
ORDER - 3
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plaintiff in early ADR proceedings in this case. Finally, the Clerk is directed to send a copy of
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this Order and § 3(g)-(i) of the Pro Bono Plan to plaintiff and counsel for defendant.
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DATED this 26th day of April, 2018.
A
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JAMES P. DONOHUE
United States Magistrate Judge
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ORDER - 4
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