Opinion
2:22-cv-1729 KJM DB PS
04-06-2023
FAZAL REHMAN ZAZAI; SKYLAND LOGISTICS LLC, Plaintiffs, v. GRAFF LOGISTICS LLC, Defendant.
ORDER TO SHOW CAUSE
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
Plaintiff Fazal Rehman Zazai is proceeding in this action pro se. This matter was referred to the undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1). On September 30, 2022, plaintiff filed a complaint and paid the applicable filing fee. (ECF No. 1.) On January 27, 2023, plaintiff filed a motion requesting the appointment of counsel. (ECF No. 5.)
Plaintiff is advised that federal district courts lack authority to require counsel to represent indigent plaintiffs in civil cases. See Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). The court may request the voluntary assistance of counsel under the federal in forma pauperis statute, but only under exceptional circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for exceptional circumstances requires the court to evaluate the plaintiff's likelihood of success on the merits and the plaintiff's ability to articulate his or her claims. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
Here, plaintiff is not proceeding in forma pauperis. Moreover, at this early stage of the action the undersigned cannot find that the exceptional circumstances test has been satisfied. Additionally, the undersigned notes that the complaint purports to be filed on behalf of plaintiff and Skyland Logistics LLC. However, the right to represent oneself pro se is personal to the plaintiff and does not extend to other parties. Simon v. Hartford Life, Inc., 546 F.3d 661, 664 (9th Cir. 2008); see also Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing in propria persona has no authority to represent anyone other than himself.”). In this regard, Skyland Logistics LLC can only proceed in this action through counsel. See In re Bigelow, 179 F.3d 1164, 1165 (9th Cir. 1999) (“The law is clear that a corporation can be represented only by a licensed attorney.”).
Finally, plaintiff has taken no activity to prosecute this action since filing a purported proof of service on December 2, 2022. (ECF No. 4.) Plaintiff, therefore, will be ordered to either prosecute this action within 21 days or show cause as to why the case should not be dismissed for lack of prosecution.
The purported proof of service reflects that plaintiff “mailed it by USPS to Graff Logistics LLC's office[.]” (ECF No. 4 at 1.) Plaintiff is advised that Rule 4 of the Federal Rules of Civil Procedure allows for service on a corporation by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made.” Fed.R.Civ.P. 4(e)(1). Pursuant to California law a corporation may be served by “[d]elivery by hand of a copy of any process against the corporation (a) to any natural person designated by it as agent or (b), if a corporate agent has been designated, to any person named in the latest certificate of the corporate agent filed pursuant to Section 1505 at the office of such corporate agent shall constitute valid service on the corporation.” Cal. Corp. § 1701. In this regard, service by mail to defendant's office may not be sufficient.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's January 27, 2023 motion to appoint counsel (ECF No. 5) is denied without prejudice to renewal;
2. Within 21 days of the date of this order plaintiff shall take steps to prosecute this action or show cause in writing as to why this case should not be dismissed for lack of prosecution; and
Alternatively, if plaintiff no longer wishes to pursue this civil action, plaintiff may comply with this order by filing a request for voluntary dismissal pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.
3. Plaintiff is cautioned that the failure to timely comply with this order may result in a recommendation that this case be dismissed.