United States District Court, N.D. California, San Jose Division
ORDER OF DISMISSAL
LABSON FREEMAN United States District Judge
Agustin Zarate filed this lawsuit against Defendants on July
28, 2016. ECF 1. On December 2, 2016, the Court issued an
Order to Show Cause (“OSC”) why Defendants should
not be dismissed from this action for Plaintiff's failure
to serve the summons and complaint within 90 days after the
complaint was filed. ECF 9. In response to the OSC, Mr.
Zarate asked the Court for an extension of time within which
to serve Defendants, which the Court granted. See
ECF 10, 13. In its order discharging the OSC, the Court
ordered Mr. Zarate to file a valid proof of service for each
Defendant on or before March 6, 2017. ECF 13. On March 3,
2017, Mr. Zarate filed an “application for petition and
complaint and otherwise notice of voluntary dismissal.”
ECF 14. The Court was unable to provide Mr. Zarate with the
relief he has requested because the examples provided were
fee arrangements that can only be directed to an attorney.
ECF 15. Moreover, although Mr. Zarate requested voluntary
dismissal if the Court were to deny his request, the Court
indicated that it would “refrain from acting upon [his]
request until April 3, 2017, unless Plaintiff communicates
his desire to withdraw the request for voluntary dismissal or
asks the Court to dismiss the case sooner.”
Id. The Court also extended the deadline for Mr.
Zarate to serve Defendants to April 3, 2017, and suggested
that Plaintiff may wish to contact the Federal Pro Se
Court is now in receipt of Plaintiff's “application
and request to al[l]ow this plaintiff in pro-se to be
represented by an attorney of his choice in heari[ngs] as his
special appearance attorney.” ECF 16. In this
application, Mr. Zarate asks the Court to issue an order
containing the following:
1- Plaintiff in pro-se is granted to hire an attorney of his
choice for court appearances as if it applies for special
appearance attorney obligations.
2- Plaintiff in pro-se is the fully responsible party of the
case as the Plaintiff Obligation.
3- Plaintiff in pro-se must meet and confer with his attorney
and make and authorize all decisions and defenses to be
spoken by his special appearance attorney at the hearing.
4- Plaintiff must be present in all hearings and must be
allowed to meet and confer with his special appearance
attorney at the time of the hearing in reference to all those
matters not discussed before or that need further discussion
or clarification and authorization from the plaintiff for all
to speak, or for spoken matters on his behalf by his special
5- Attorney of the Plaintiff is to speak in good faith on
Plaintiff's behalf as authorized [b]y him without the
legal representation and liability standards to his client.
6- Plaintiff must have an attorney present for all hearings
unless it is not required and permitted by the court, so that
the plaintiff may save money on the litigation costs, at
plaintiff's own risk and liability.
Order, ECF 17. As best the Court can tell, Mr. Zarate seeks
to have the Court endorse a limited representative
arrangement between Mr. Zarate and an attorney in light of
the cost of retaining an attorney. See generally ECF
Mr. Zarate's previous request, the Court is unable to
provide Mr. Zarate with the relief he has requested. Although
attorneys may engage in limited representations under the
rules of professional conduct, the Court cannot force an
attorney to accept such an engagement. While the Court
understands Mr. Zarate's circumstances, it cannot get
involved in matters such as these.
if Mr. Zarate is requesting the Court to appoint counsel to
represent him in a limited manner in this action, the Court
DENIES that request. “[T]he appointment of counsel in a
civil case is . . . a privilege and not a right.”
Gardner v. Madden, 352 F.2d 792, 793 (9th Cir.
1965); see also Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009) (stating that “[g]enerally, a person
has no right to counsel in civil actions”). The Court
“may under ‘exceptional circumstances'
appoint counsel for indigent civil litigants pursuant to 28
U.S.C. § 1915(e)(1).” Palmer, 560 F.3d at
970 (citation omitted). Here, however, Mr. Zarate is not
proceeding in forma pauperis pursuant to 28 U.S.C.
§ 1915, and therefore, has not shown that he is
to determine whether “exceptional circumstances”
are present, the “court must evaluate the likelihood of
success on the merits as well as the ability of the
petitioner to articulate his claims pro se in light
of the complexity of the legal issues involved.”
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Plaintiff has not demonstrated a likelihood of success on the
merits or that this failure is due to either his difficulty
articulating claims as a pro se litigant or the
complexity of the legal issues involved. Therefore, this
request is DENIED
foregoing reasons, and because Mr. Zarate has neither
withdrawn his request for voluntary dismissal nor filed a
valid proof of service for each Defendant as directed in the
Court's prior order, the Court hereby ...