Elliot v. Spe Terra Nova Apartment Owners LLC

Opinion

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11 RUSSELL ELLIOTT; NELLY Case No. 24-cv-0447-BAS-JLB 12 ELLIOTT, et al., ORDER: 13 Plaintiffs, (1) ADDRESSING NOTICE OF MAIL 14 v. DELAYS;

15 SPE TERRA NOVA VILLAS (2) DISMISSING WITHOUT APARTMENT OWNERS, LLC, et al., PREJUDICE MINOR 16 CHILDREN’S CLAIMS; Defendants. 17 (3) DENYING REQUEST FOR APPOINTMENT OF COUNSEL; 18 (4) DISMISSING WITHOUT 19 PREJUDICE CLAIMS AGAINST DEFENDANT VICTOR; 20 (5) DENYING MOTION FOR (ECF No. 38); AND 22 (6) DISMISSING WITHOUT 23 PREJUDICE CLAIMS AGAINST DEFENDANT VICTORIA ORR 24 25 Plaintiffs Russell Elliott and Nelly Elliott (“the Elliotts”) are self-represented. They 26 filed this case seeking relief for alleged housing discrimination. (Complaint, ECF No. 1.) 27 On June 11, 2025, the Court issued two orders providing guidance to the Elliotts and 28 warning them that some claims may be dismissed. The Court received two responses from 1 the Elliotts. (ECF Nos. 37, 38.) They also filed a notice concerning mail delays. 2 (ECF No. 36.) Each item is considered below. 4 On June 30, 2025, the Elliotts filed a Notice of Temporary Mail Delays and 5 Hindrance in Receiving Mail. (ECF No. 36.) The Elliotts use a U.S. Post Office box in 6 Chula Vista, CA, for their mailing address. In their Notice, the Elliotts state they have 7 experienced delays receiving mail due to construction at the Post Office. (Id.) The Elliotts 8 also ask the Court to allow service through an email address. (Id.) 9 First, the Court is mindful of the fact that the Elliotts are receiving service by mail. 10 Given their Notice of Temporary Mail Delays, the Court will consider their other two 11 filings, even though those filings were received after the Court’s deadlines. In other words, 12 the Elliotts will not be punished for any temporary delay in accessing their mail. 13 Second, the Court denies without prejudice the Elliotts’ request to receive service by 14 email. If the Elliotts would like the privilege of electronic filing and service, then there is 15 a procedure for them to follow on the Court’s website: Representing Yourself in Federal 16 Court (Pro Se) – https://www.casd.uscourts.gov/ProSe.aspx. Under “Information about 17 Filing in Federal Court,” the Elliotts can learn more about the electronic filing 18 requirements. There is also a form the Elliotts can complete to submit a “Motion for Leave 19 to Electronically File Documents.” If the Elliotts meet the Court’s requirements for 20 electronic filing, then they should file the appropriate motion. The Court will then consider 21 their request. 22 II. REPRESENTATION OF MINORS AND APPOINTMENT OF COUNSEL 23 The Court drew the Elliotts’ attention to the fact that they are trying to bring claims 24 on behalf of their two minor children, but the Elliotts cannot do so without counsel. (ECF 25 No. 35.) The Court then ordered the Elliotts to explain why the minor children’s claims 26 should not be dismissed. 27 The Elliotts filed a response asking the Court to allow them to continue representing 28 their minor children as pro se litigants. (ECF No. 37.) The Elliotts argue that they can 1 advocate for the minors’ best interests. (Id.) They also argue the rule against minor 2 representation is discriminatory in light of the Elliotts’ limited financial resources. (Id.) 3 The Court has considered the Elliotts’ arguments, but this rule is the law. This Court 4 must follow the decisions from the Court of Appeals for the Ninth Circuit. That higher 5 court has held that “a parent or guardian cannot bring an action on behalf of a minor child 6 without retaining a lawyer.” Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir. 7 1997). Therefore, the Court cannot let the Elliotts represent their minor children. 8 The Court turns to the Elliotts’ request for appointment of counsel. Although there 9 is no right to counsel in civil actions, a district court may request counsel for indigent civil 10 litigants pursuant to 28 U.S.C. § 1915(e)(1) in “exceptional circumstances.” Rand v. 11 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), overruled on other grounds, 154 F.3d 952 12 (9th Cir. 1998). The court, however, does not have authority to compel counsel to provide 13 representation. Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 298 (1989). 14 Rather, the court may only “request” that counsel serve. 28 U.S.C. § 1915(e)(1); see also 15 United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986) (noting that § 16 1915 only permits a court to “request” counsel, not to compel representation). Nor may 17 the court appoint publicly funded counsel. “The Supreme Court has declared that ‘the 18 expenditure of public funds [on behalf of an indigent litigant] is proper only when 19 authorized by Congress.’” Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 20 1989) (citing United States v. MacCollom, 426 U.S. 317, 321 (1976)). Congress has not 21 provided funds to pay counsel secured under 28 U.S.C. § 1915(e). See 30.64 Acres of 22 Land, 795 F.2d at 801. Accordingly, the court is limited to making a request for pro bono 23 counsel to provide voluntary representation. 24 The decision to request pro bono counsel rests within “the sound discretion of the 25 trial court and is granted only in exceptional circumstances.” Agyeman v. Corr. Corp. of 26 Am., 390 F.3d 1101, 1103 (9th Cir. 2004). A finding of exceptional circumstances requires 27 an evaluation of both the likelihood of success on the merits and the ability of the plaintiffs 28 to articulate their claims pro se in light of the complexity of the legal issues 1 involved. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Neither of these factors 2 is dispositive; instead, the court must view both factors together. Wilborn v. Escalderon, 3 789 F.2d 1328, 1331 (9th Cir. 1986). 4 Here, the Court first notes that the Elliotts are not proceeding in forma pauperis. 5 The Court twice denied their request to proceed without paying the filing fee because their 6 application was incomplete and contradictory. (ECF Nos. 3, 9.) The Elliotts then paid the 7 filing fee. (ECF No. 10.) Therefore, the Court was unable to determine whether the Elliotts 8 are indigent, and they are not proceeding under 28 U.S.C. § 1915. That fact also means 9 the Court did not screen the Elliotts’ Complaint to determine whether it stated a claim upon 10 which relief could be granted. 11 Putting the indigency issue aside, however, the Court recognizes that the minor 12 children cannot articulate their claims without counsel. But that is only one factor for the 13 Court to consider. The Court also must evaluate the likelihood of success on the merits. 14 The Elliotts’ Complaint contains limited information about their children’s claims. The 15 most detailed factual allegation is that an apartment manager told the Elliotts their children 16 were not allowed to write with chalk or play on common area sidewalks because there were 17 playgrounds available. (See Compl. 2, 6.) In exercising its discretion, and on this limited 18 record, the Court finds there are no exceptional circumstances that necessitate appointment 19 of counsel for the Elliotts’ children’s claims. See Tackett v. United States Dep’t of Health 20 & Hum. Servs., No. CV 21-37-M-DLC-KLD, 2021 WL 6499543, at *2 (D. Mont. May 7, 21 2021) (exercising discretion to deny appointment of volunteer counsel for minor children). 22 The Court thus denies without prejudice the request for appointment of counsel. 23 Accordingly, the Court will dismiss the Elliotts’ children’s claims, and the Court 24 denies the request for appointment of counsel. 25 26 27 28 2 One of the Complaint’s Defendants is “Victor,” who is identified as a maintenance 3 employee at the apartment complex where the Elliotts resided in Chula Vista. (Complaint 4 3.) On February 2, 2025, the Elliotts filed a proof of service stating this individual was 5 personally served. (ECF No. 14.) However, while the other Defendants who were served 6 have filed an Answer, Defendant Victor has not appeared to defend himself in this case. 7 (See ECF No. 17.) 8 The Court later drew to the Elliotts’ attention that they have the responsibility to 9 keep this case moving forward against each Defendant. (ECF No. 35.) Otherwise, as the 10 Court warned, their claims against a Defendant can be dismissed for failure to prosecute. 11 Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 12 (9th Cir. 2005). The Court provided guidance to the Elliotts on how to proceed. Finally, 13 the Court gave the Elliotts until June 25, 2025, to show why the claims against Victor 14 should not be dismissed. 15 The Court’s deadline passed two weeks ago, but the Elliotts have not shown why the 16 claims against Defendant Victor should not be dismissed for failure to prosecute. The 17 Court’s need to manage its docket and the public’s interest in expeditious resolution of 18 litigation support dismissing this Defendant. Further, the Court already employed a less 19 drastic measure by issuing an order to show cause—with guidance—and expressly warning 20 the Elliotts that a failure to comply with the Court’s order would serve as an additional 21 basis for dismissal. The Court therefore will dismiss this Defendant. See Ferdik v. 22 Bonzelet, 963 F.2d 1258, 1260–62 (9th Cir. 1992). 24 The Elliotts seek reconsideration of the Court’s ruling on their request for substitute 25 service. (ECF No. 38.) For background, Rule 4(m) of the Federal Rules of Civil Procedure 26 provides that if the defendant is not served within ninety days after the complaint is filed, 27 the court must dismiss the action against the defendant or order that service be made within 28 a specific time. Although the summons was issued in September 2024, Plaintiffs had not 1 served Defendant Orr by January 2025. (ECF No. 11.) The Court ordered Plaintiffs to 2 show cause as to why the case against Defendant Orr should not be dismissed under Rule 3 4(m). (ECF No. 12.) 4 Plaintiffs missed the Court’s deadline to show cause. Nevertheless, Plaintiffs filed 5 a Motion for Substituted Service. (ECF No. 33.) On June 11, 2025, the Court denied the 6 Elliotts’ Motion. (ECF No. 34.) The Court reasoned that the requirements for substitute 7 service under state law were not met: 8 Here, Plaintiffs’ process server attempted to serve Defendant Orr at the apartment complex where Plaintiffs resided. However, it appears that 9 Defendant Orr no longer works at the address for two reasons. First, several 10 other Defendants filed an Answer on February 21, 2025, including Defendant Orr’s alleged employer. (Answer, ECF No. 17.) In that filing, the “answering 11 Defendants admit Victoria Orr was previously the Community Manager of the 12 property located at 440 East H Street, Chula Vista, CA 91910.” (Answer, ECF No. 17.) Second, the process server’s declaration notes the server was 13 told on several different days that Defendant Orr was “not in” at that address. 14 (Mot. Ex. 1.) Therefore, the Court is unpersuaded that Plaintiffs were attempting service at “a proper place.” See Espindola, 199 Cal. App. 3d at 15 1392. The Court is likewise unconvinced that Plaintiffs have shown 16 “reasonable diligence” that would allow substituted service under state law. 17 (Id.) The Court also advised the Elliotts that their process server could attempt service 18 under Rule 4(e)(2) of the Federal Rules of Civil Procedure, which provides service may be 19 accomplished by “leaving a copy of [the summons and complaint] at the individual’s 20 dwelling or usual place of abode with someone of suitable age and discretion who resides 21 there.” (Id.) Finally, the Court stated the Elliotts must show cause by July 2, 2025, such 22 as by filing proof of service on the docket. The Court again cautioned the Elliotts that a 23 failure to show cause will result in the Court dismissing the case against Defendant Orr 24 without prejudice. 25 On July 3, 2025, the Elliotts moved for reconsideration of the Court’s ruling. (ECF 26 No. 38.) Under the Civil Local Rules for the Southern District, a party seeking 27 reconsideration must show “what new or different facts and circumstances are claimed to 28 exist which did not exist, or were not shown, upon such prior application.” S.D. Cal. Civ. 1 LR 7.1(i). Reconsideration is an “extraordinary remedy, to be used sparingly in the 2 interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of 3 Bishop, 229 F.3d 877, 890 (9th Cir. 2000). “A motion to reconsider is not another 4 opportunity for the losing party to make its strongest case, reassert arguments, or revamp 5 previously unmeritorious arguments.” Reeder v. Knapik, No. 07-cv-362-L(LSP), 2007 WL 6 2088402, at *2 (S.D. Cal. July 18, 2007); see also Campion v. Old Republic Home 7 Protection Co., Inc., No. 9-cv-748-JMA(NLS), 2011 WL 1935967, at *2 (S.D. Cal. May 8 20, 2011) (“[R]econsideration may not be used to get a second bite at the apple.”). 9 Here, the Elliotts repeat arguments that were made in their initial Motion for 10 Substitute Service. (ECF No. 38.) They again argue that substitute service is appropriate 11 under state law, but the Court already determined Plaintiffs did not satisfy the relevant 12 requirements. Nor have they shown why service cannot be completed, such as by 13 attempting service at Defendant Orr’s residence. The Court therefore denies the motion 14 for reconsideration. 15 Overall, the Court has provided multiple opportunities for Plaintiffs to complete 16 service on Defendant Orr, but they have not done so. The Court thus confirms it is 17 appropriate to dismiss this Defendant under Rule 4(m). 19 For the reasons stated above, the Court ORDERS that: 20 (1) The request to receive service by email is DENIED WITHOUT 22 (2) The request for appointment of counsel is DENIED WITHOUT 24 (3) The two minor children’s claims are DISMISSED WITHOUT 26 (4) Plaintiffs’ claims against Defendant Victor are DISMISSED WITHOUT 27 PREJUDICE for failure to prosecute and for failure to comply with the Court’s order to 28 show cause. 1 (5) Plaintiffs’ claims against Defendant Victoria Orr are DISMISSED 2 || WITHOUT PREJUDICE under Rule 4(m) and for failure to comply with the Court’s two 3 ||orders to show cause. 4 The Court notes that the Elliotts still have claims pending against the three 5 Defendants who have answered. The Elliotts have the responsibility to keep their case 6 || moving against these Defendants. 8 9 || DATED: July 10, 2025

Hon. Cynthia Bashant, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28