United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION FOR APPOINTMENT
OF COUNSEL RE: DKT. NO. 360
3, 2019, the court held a case management conference at which
Defendant Kraig Kast made a request for appointment of pro
bono counsel. The court ordered Kast to file an
administrative motion for appointment of counsel by July 8,
2019, with any opposition by Plaintiffs Erickson Productions
Inc. and Jim Erickson due by July 12, 2019. [Docket No. 358.]
Kast timely filed his motion, which Plaintiffs oppose.
[Docket Nos. 360, 364.]
not an indigent litigant who may lose his physical liberty if
he does not prevail in this lawsuit. Therefore he does not
have a right to counsel. See Lassiter v. Dept of Soc.
Servs, 452 U.S. 18, 25 (1981). Kast moves for
appointment of counsel pursuant to this district's
General Order No. 25, which sets forth four criteria which a
pro se litigant must satisfy in order to be found eligible
for appointment of pro bono counsel through the
district's Federal Pro Bono Project:
1. The unrepresented litigant must be in propria
2. The unrepresented litigant must not have the financial
resources to retain counsel;
3. The unrepresented litigant must have used reasonable
efforts to retain private counsel such as through a
California State Bar-approved lawyer referral service or have
demonstrated that such efforts would be futile; and
4. The referring judge must determine the case merits pro
bono representation (this does not mean determining that
the litigant is likely to prevail on the merits, but that the
litigant's claims are cognizable and the factual and
legal issues warrant proper presentation to the Court with
the assistance of an attorney).
Gen. Order 25(I)(A).
asserts that he satisfies all four criteria for appointment
of pro bono counsel under General Order 25. He also notes
that the Ninth Circuit appointed pro bono counsel to
represent him in the prior appeal and argues that the
“factual and technical legal issues before this Court,
are derived from the same technical legal issues already
decided by the panel in [his] appeal.” Mot. 3.
oppose the motion. In particular, they vigorously dispute
whether Kast has the financial resources to retain counsel
and argue that Kast has not made a sufficient showing that he
made reasonable efforts to obtain counsel on his own.
court need not resolve the parties' disputes about
Kast's financial resources or his efforts to obtain
counsel, because it finds that the case does not merit pro
bono representation under the fourth criterion. The court
determines that the factual and legal issues presented on
remand are straightforward, and Kast can present them
properly without appointment of pro bono counsel.
points to the fact that the Ninth Circuit appointed pro bono
counsel to represent him on appeal. However, the Court of
Appeals issued its appointment order because it determined
that appointment of counsel would benefit the court's
review of two specific legal issues: (1) Whether the
avoidance of licensing fees constitutes a direct financial
benefit for purposes of imposing vicarious liability; and (2)
Whether a “should have known” willfulness
instruction is proper under 17 U.S.C. § 504(c). No.
15-16801, Docket No. 54 (9th Cir. May 7, 2018). The Ninth
Circuit decided both of those legal issues in its April 16,
2019 opinion. See Erickson Prods., Inc. v. Kast, 921
F.3d 822 (9th Cir. 2019). The reason for appointment of
counsel before the appellate court no longer exists.
remand the only issues before this court are (1) whether the
current evidentiary record supports a finding of willful
infringement under the legal standard announced by the Ninth
Circuit; and (2) the amount of statutory damages to be
awarded if the evidence does not support such a finding.
See Id. at 833-34. These issues are not particularly
complex. Moreover, Kast's filings in this case
demonstrate that he is fully capable of articulating his
positions without the assistance of an attorney. Accordingly,
Kast's motion for the appointment of pro bono counsel is
denied. The briefing schedule set by the court at the initial
case management conference remains unchanged. [See
Docket No. 358.]