Smith v. Wilkie

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cynthia C Smith, No. CV-20-08015-PCT-MTL 10 Plaintiff, ORDER v. Robert Wilkie, et al., 13 Defendants.

15 Before the Court are three filings by Plaintiff Cynthia C. Smith: a motion to appoint counsel (Doc. 13); a response to the Court’s April 16, 2020 Order to Show Cause (Doc.

17 12); and a motion for default judgment. (Doc. 14.) The Court will address them in turn.

18 Plaintiff requests that the Court appoint counsel to represent her in this case (Doc.

19 13). Her motion states: In light of recent mishaps in filing this claim, I respectfully request assignment of coun[sel] to alleviate the 22 frustration that comes with self-representation. Under the court[’]s self-service clinic, I do not qualify, due to living out 23 of state (Indiana).

24 (Id. at 1.)

25 Generally, there is no constitutional right to appointment of counsel in a civil case.

26 See Johnson v. U.S. Dep’t of Treasury, 939 F.2d 820, 824 (9th Cir. 1991). However, the 1964 Civil Rights Act “provides for appointment of counsel in employment discrimination cases in such circumstances as the court may deem just.” Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1318 (9th Cir. 1981) (internal quotations omitted). Plaintiff’s Complaint states that it is for employment discrimination. (Doc. 1.) In determining whether appointment of counsel is warranted in these cases, the Court must assess: “(1) the plaintiff’s financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the plaintiff’s claim has merit.” Id. A district court should appoint counsel only under exceptional circumstances. Agyeman v. Corrections Corp. of America, 390 F.3d 7 1101, 1103 (9th Cir. 2004).

8 Plaintiff fails to support her motion with any information addressing the factors identified above or reason to believe that the case presents exceptional circumstances.

10 Accordingly, the motion for appointment of counsel is denied without prejudice. Plaintiff may, if she so chooses, file a new motion addressing these deficiencies.

12 The next issue is Plaintiff’s response to the Order to Show Cause. (Doc. 12.) On April 16, 2020, the Court ordered Plaintiff to show cause why Defendants Robert Wilkie and the Department of Veterans Affairs should not be dismissed pursuant to Fed. R. Civ. 15 P. 4(m); and why Defendant Northern Arizona Veterans Affairs Healthcare System should not be dismissed pursuant to Fed. R. Civ. P. 4(i) and 4(m). (Doc. 10.) The Court also noted that “[f]ailure to timely show cause may result in dismissal of this case without further notice to Plaintiff.” (Id. at 1.) Plaintiff’s response did not address Robert Wilkie or the Department of Veterans Affairs. Plaintiff has also not subsequently filed any proof of service. Accordingly, the Court will dismiss these Defendants without prejudice.

21 With respect to Defendant Northern Arizona Veterans Affairs Healthcare System, Plaintiff’s response states, “On February 4, 2020, the defendants at the Northern Arizona VA Healthcare Systems were successfully served by Alliance Investigations, LLC…The complaint was received by Martha Lockwood at 11:00 am. I received the summons around February 13, 2020.” (Doc. 12.) The response also includes a proof of service indicating that Martha Lockwood was authorized to accept service on behalf of Northern Arizona VA Healthcare System. (Id. at 1.) However, the Court ordered Plaintiff to address the fact that “Plaintiff’s purported service on Defendant Northern Arizona Veterans Affairs Healthcare System (Doc. 8) does not comply with the requirements of Rule 4(i) of the Federal Rules || of Civil Procedure.” (Doc. 10 at 1.) Rule 4(i) describes specific requirements for serving □□ the United States and its agencies, corporations, officers, or employees. Fed. R. Civ. P. 4c). Plaintiff has not addressed these requirements and accordingly has not complied with || the Court’s Order to Show Cause as to this defendant, either.

6 Plaintiff has also filed a motion for default judgment. (Doc. 14.) As noted above and □□ in the Court’s Order at Doc. 10, Plaintiff has not demonstrated proper service on any || defendant in this case. Accordingly, the motion for default judgment is denied.

9 Because Plaintiff's time to properly serve has now expired, see Fed. R. Civ. P. 4(m), || Plaintiff must seek an extension of time to serve Northern Arizona Veterans Affairs || Healthcare System. Plaintiff must meet the factors required to justify an extension of time to serve. If no motion is forthcoming within 14 days, the case will be dismissed for failure 13} to prosecute pursuant to Fed. R. Civ. P. 41(b). Accordingly, 14 IT IS ORDERED denying Plaintiffs Motion to Appoint Coun[sel] without || prejudice. (Doc. 13.)

16 IT IS FURTHER ORDERED that Defendants Robert Wilkie and the Department 17|| of Veterans Affairs are dismissed from this action without prejudice. Because one || Defendant remains, the Clerk’s Office shall not enter judgment at this time.

19 IT IS FURTHER ORDERED denying Plaintiff's Motion for Default Judgment.

20} } (Doc. 14.)

21 IT IS FINALLY ORDERED that Plaintiff must file a motion to extend the time to || serve Defendant Northern Arizona Veterans Affairs Healthcare System no later than 14 || days from the date of this Order. Failure to do so will result in dismissal of this case.

24 Dated this 28th day of May, 2020.

Mi Chak T. Sibude Michael T. Liburdi 27 United States District Judge -3-