The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR EXTENSION OF MOTION FOR APPOINTMENT OF COUNSEL; [Doc. Nos. 57 & 61]
GRANTING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO PROSECUTE UNDER TIME TO OBTAIN COUNSEL & RULE 41(b)
This matter is before the Court on Defendant United States of America's motion to dismiss due to Plaintiff Oswaldo Vanegas' failure to prosecute under Rule 41(b) of the Federal Rules of Civil procedure. Plaintiff, proceeding pro se, has not filed an opposition to Defendant's motion, however, he has filed a motion seeking an extension of time to obtain counsel, and a motion for appointment of counsel. After careful consideration, for the following reasons, the Court DENIES Plaintiff's motions and GRANTS Defendant's motion.
This is an action brought under the Federal Tort Claims Act to recover for injuries sustained by Plaintiff while attempting to cross the border illegally aboard a freight train/on foot. Plaintiff filed the operative complaint on December 5, 2008 and was represented by attorney Matan Drelich. See Doc. No. 1. The parties appeared for an Early Neutral Evaluation conference on April 28, 2009, and subsequently moved the Court jointly to bifurcate the liability and damages phases of the case, in order to defer damages-related discovery. See Doc. No. 10. The Court held a Case Management Conference on June 30, 2009 and thereafter issued a scheduling order. See Doc. Nos. 12 & 13. Approximately one month later, Plaintiff's counsel filed a motion requesting to withdraw as attorney of record. See Doc. No. 14. After hearing the arguments of counsel and Plaintiff, the Court granted the motion and granted Plaintiff sixty days to obtain new legal representation. See Doc. No. 25. On December 21, 2009, the Court held a second Case Management Conference and set new scheduling order deadlines. Plaintiff represented himself at the conference. See Doc. Nos. 37 & 38.
On April 5, 2010, Frank De Santis entered his appearance as counsel of record for Plaintiff. See Doc. No. 40. After holding a Case Management Conference with counsel, the Court issued a revised scheduling order. See Doc. No. 42. On July 30, 2010, Mr. De Santis filed the motion to be relieved as counsel. According to Mr. De Santis' declaration in support of the motion, Plaintiff failed completely to maintain contact with Mr. De Santis; did not respond to Mr. De Santis' office's repeated attempts to meet and confer with him by telephone or in person in Mexico; refused to participate willingly in discovery; failed to attend meetings; was unable to be located; and, on July 13, 2010, finally contacted Mr. De Santis' office and stated that he might be moving to his country of origin, Guatemala.
On August 23, 2010, the Court granted Mr. De Santis' motion and allowed him to withdraw as counsel of record. See Doc. No. 48. In its order, the Court granted Plaintiff thirty additional days to obtain counsel and cautioned that "[i]n the event Plaintiff fails to obtain new counsel, or fails to litigate in a timely and appropriate manner while representing himself, this action may be subject to dismissal for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b)." See id. at 3. Plaintiff did not file a substitution of counsel or otherwise respond to the Court's order.
On November 2, 2010, the Court scheduled a telephonic settlement conference after being advised that Plaintiff is now in the custody of Immigration and Customs Enforcement. See Doc. No. 51. The settlement conference was held. The case did not settle. See Doc. No. 52. Thereafter, Defendant filed the instant motion to dismiss and Plaintiff filed his requests for appointment of counsel and an extension of time to obtain counsel.
1. Plaintiff's Motion for Appointment of Counsel
As a threshold matter, the Court addresses Plaintiff's motion for appointment of counsel, as a finding that Plaintiff is entitled to the benefit of subsidized representation bears on whether the action should be dismissed.
Plaintiff asserts that appointment of counsel is appropriate because he cannot afford an attorney, he lacks legal knowledge to litigate the case, the legal issues presented by his claims are complex, and because the Department of Homeland Security seeks his removal from the United States.
Although Plaintiff's request is understandable under the circumstances, the Constitution provides no right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Furthermore, appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1) requires the Court to make a finding of "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). Such a finding "requires an evaluation of both the 'likelihood of success on the merits [and] the ability of the petitioner to articulate [his/her] claims pro se in light of the complexity of the ...