Barnett v. Ubimodo Inc., 6:18-cv-00418

Pro se plaintiff Kelly A. Barnett filed suit and moved for leave to proceed in forma pauperis (IFP), for appointment of pro bono counsel, and for an order to preserve evidence.
The court reviewed Barnett’s IFP application and the complaint’s factual allegations for plausibility under Rule 12(b)(6) standards.
Defendants had not yet been served at the time of the motions.
Barnett argued she is indigent and requested counsel due to her inability to prosecute the case effectively; she also sought a preservation order to protect potentially relevant evidence.
The court considered whether exceptional circumstances warranted appointment of counsel and whether a pre-service preservation order was necessary.

Issue	Plaintiff's Argument	Defendant's Argument	Held
IFP eligibility	Barnett is indigent and cannot pay filing fees	Not addressed (no opposition on record)	Granted: Barnett qualifies for IFP under 28 U.S.C. § 1915(a) because she is unable to pay and the complaint is plausible under Iqbal/Twombly standards
Appointment of counsel	Barnett needs volunteer counsel to proceed effectively	No mandatory right to counsel; appointment only in exceptional circumstances	Denied: no exceptional circumstances shown to justify requesting volunteer counsel under 28 U.S.C. § 1915(e) and Ninth Circuit guidance
Preservation order	Court should order preservation of evidence now to prevent spoliation	Defendants not yet served; preservation obligation exists regardless of court order	Denied: defendants, once served, are already obligated to preserve evidence; court found no need for pre-service preservation order

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim to survive screening)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
United States v. 30.64 Acres of Land, 795 F.2d 796 (9th Cir. 1986) (no constitutional right to counsel in civil cases)
Wood v. Housewright, 900 F.2d 1332 (9th Cir. 1990) (courts may request volunteer counsel for indigent litigants in exceptional circumstances)
Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986) (factors for appointing counsel in civil cases)
Mallard v. U.S. Dist. Court of Iowa, 490 U.S. 296 (1989) (court cannot mandate appointment of counsel; only request volunteer counsel)
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (duty to preserve evidence when litigation is reasonably anticipated)
Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423 (2d Cir. 2001) (duty to preserve evidence in anticipation of litigation)
Kronisch v. United States, 150 F.3d 112 (2d Cir. 1998) (preservation duty arises when litigation is anticipated)
Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001) (duty to preserve extends to period before litigation when party should know evidence may be relevant)