Konyen v. Lowes Home Centers, LLC ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 CATHIE KONYEN, Case No. 3:22-CV-00538-MMD-CLB 5 Plaintiff, ORDER REGARDING EX PARTE LETTER 6 v. 7 LOWES HOME CENTERS, LLC, 8 Defendant. 9 10 On July 23, 2024, the undersigned received a letter via email from Plaintiff Cathie 11 Konyen (“Konyen”). (See Exhibit 1.) This letter is improper for multiple reasons. As a 12 threshold matter, this letter was emailed to the Court in violation of the Court’s Local Rules 13 and Federal Rules of Civil Procedure. The Court’s local rules clearly state that “an 14 attorney or pro se party must not send case-related correspondence, such as letters, 15 emails, or facsimiles, to the court.” LR IA 7-1(a). 16 Further, there is no evidence that the letter was served on Defendants Lowes 17 Home Centers, LLC (“Lowes”). The Court’s Local Rules provide that “[a]ll communications 18 with the court must be. . . served on all other attorneys and pro se parties.” LR IA 7-1(b) 19 (emphasis added). The Court’s Local Rules define an ex parte communication as “a 20 communication between a pro se party or attorney and a judge or chambers when the 21 opposing party or attorney is not present or copied, including telephone calls, letters, or 22 emails.” LR IA 7-2(a). “Neither party nor an attorney for any party may make an ex parte 23 communication except as specifically permitted by court order or the Federal Rules of 24 Civil or Criminal Procedure” and the communication “must articulate the rule that permits 25 ex parte filing and explain why it is filed on an ex parte basis.” LR IA 7-2(b). Konyen does 26 not explain why the letter was sent on an ex parte basis and thus the letter constitutes an 27 improper ex parte communication. 1 the letter is improper because it requests the Court appoint Konyen pro-bono counsel. 2 (Exhibit 1.) The Court’s Local Rules mandate that “[a]ll communications with the court 3 must be styled as a motion, stipulation, or notice.” LR IA 7-1(b). As this letter seeks the 4 Court take action on something, it should have been filed as a motion and the Court would 5 have authority to strike the letter for failure to be filed as a motion. Id. 6 Finally, the Court notes that in civil cases, a self-represented litigant does not have 7 a constitutional or statutory right to appointed counsel. See Storseth v. Spellman, 654 8 F.2d 1349, 1353 (9th Cir. 1981). In limited circumstances, courts are empowered to 9 request an attorney to represent an indigent civil litigant. For example, courts have 10 discretion, pursuant to 28 U.S.C. § 1915(e)(1), to “request” that an attorney represent 11 indigent civil litigants upon a showing of “exceptional circumstances.” Ageyman v. 12 Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). To determine whether 13 the “exceptional circumstances” necessary for appointment of counsel are present, courts 14 evaluate (1) the likelihood of plaintiff's success on the merits and (2) the plaintiff's ability 15 to articulate his claim pro se “in light of the complexity of the legal issues involved.” Id. 16 (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). Neither of these 17 factors is dispositive and both must be viewed together. Wilborn, 789 F.2d at 1331. The 18 difficulties every litigant faces when proceeding pro se does not qualify as an exceptional 19 circumstance. Wood v. Housewright, 900 F. 2d 1332, 1335-36 (9th Cir. 1990). While 20 almost any pro se litigant would benefit from the assistance of competent counsel, such 21 a benefit does not rise to the level of “exceptional circumstances.” Rand v. Rowland, 113 22 F.3d 1520, 1525 (9th Cir. 1997), opinion reinstated in pertinent part, 154 F.3d 952, 954 23 n.1 (9th Cir. 1998) (en banc). Rather, the plaintiff must demonstrate that she is unable to 24 articulate her claims due to their complexity. Id. 25 Konyen is advised to file a proper motion for appointment of counsel that explains 26 why she meets the standard for appointment of counsel in this civil case. The Court 27 reminds Konyen that all parties, including parties proceeding pro se, are required to follow 565, 567 (9th Cir. 1987). Although the Court will liberally construe pro se pleadings and will give some latitude to pro se litigants, a continued failure to follow the Court’s Local 3 | Rules and the Rules of Civil Procedure may result in sanctions. 4 IT IS SO ORDERED. . 5 DATED: July 23, 2024 . 6 UNITED STATES\MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28