US Commodity Futures Trading Commission v. American Bullion Exchange Abex Corp et al
Filing
83
MINUTES (IN CHAMBERS): ORDER by Judge David O. Carter: DENYING 69 Application for Appointment of Counsel: (See document for details.) (rla)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. SA CV 10-1876 DOC (RNBx)
Date: September 26, 2011
Title: U.S. COMMODITY FUTURES TRADING COMMISSION v. AMERICAN BULLION
EXCHANGE ABEX, CORP., AMERICAN BULLION EXCHANGE, LLC, and RYAN A.
NASSBRIDGES, Defendants, and AMERICAN PREFERRED COMMODITIES APC CORP., R.E.
LLOYD COMMODITIES GROUP HOLDING, LLC, and BITA J. NASSBRIDGES, Relief
Defendants
PRESENT:
THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera
Courtroom Clerk
Not Present
Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
NONE PRESENT
NONE PRESENT
PROCEEDING (IN CHAMBERS): ORDER DENYING DEFENDANT RYAN A. NASSBRIDGES’
AND RELIEF DEFENDANT BITA J. NASSBRIDGES’
APPLICATION FOR COURT TO APPOINT AN ATTORNEY
Before the Court is Defendant Ryan A. Nassbridges’ (“R. Nassbridges”) and Relief
Defendant Bita J. Nassbridges’ (“B. Nassbridges”) (jointly, the “Nassbridges”) Application for Court to
Appoint an Attorney in the above-captioned case (“Application”) (Docket 69). After considering the
Application and the Nassbridges’ Declarations In Support Thereof, and for the reasons described
below, the Court hereby DENIES the Application.
I.
Background
The United States Commodity Futures Trading Commission (“Plaintiff”) alleges that R.
Nassbridges, American Bullion Exchange ABEX, Corp., and American Bullion Exchange, LLC
(collectively, “Defendants”) “fraudulently operated a commodity pool and defrauded at least 80
individuals of approximately $5.5 million.” Complaint, ¶ 2. Defendants allegedly “solicited funds
from individuals for the represented purpose of investing in gold bullion, palladium bullion, gold coins
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and silver coins,” but instead used investors’ funds to trade commodity futures and options. Id.
Plaintiff contends that Defendants sustained overall net trading losses of approximately $2.2 million
without disclosing such losses to the investors. Id. at ¶ 3. Additionally, Defendants, through R.
Nassbridges, allegedly misappropriated investors’ funds by transferring investors’ funds into the
Nassbridges’ personal bank account. Id. at ¶ 5. Furthermore, to conceal the allegedly fraudulent
operations and misappropriation, R. Nassbridges allegedly provided false and misleading testimony to
Plaintiff. Id. at ¶ 7.
In light of the alleged wrongdoing, Plaintiff filed a Complaint with this Court on
December 2, 2008, alleging various violations of the Commodity Exchange Act and Commission
Regulations, including (1) fraud by fraudulent solicitation, misappropriation and failure to disclose
trading and losses (both futures and options); (2) fraud as a commodity pool operator; (3) failure to
register as a commodity pool operator; (4) failure to provide pool disclosure documents; and (5) failure
to provide monthly account statements (Docket 1).
On August 1, 2011, the Nassbridges filed this Application. The Nassbridges aver that the
Court should appoint counsel because (1) the allegations are complex and are brought by a resourceful
government agency against a bankrupt group of defendants and relief defendants; (2) the Nassbridges’
answers, motions, and other responses in this matter were deemed unacceptable by the Court as they
were either denied or stricken; (3) it is necessary for the Court to appoint counsel to at least inform the
Court of the facts; and (4) leaving the Nassbridges without representation by counsel would be injustice
and would cause their legal problems to worsen.
II.
Legal Standard
Federal criminal defendants are entitled to representation of counsel, and the Court has
the power to appoint and compensate counsel in such cases. See United States v. 30.64 Acres of Land,
795 F.2d 796, 801 (9th Cir. 1986). There is no constitutional right, however, to appointed counsel in
civil matters. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no right to appointed counsel
in Section 1983 action). The Court has no direct means to compensate counsel for representing a
plaintiff, nor does the Court have authority to compel an attorney to represent a plaintiff. Mallard v.
United States Dist. Court, 490 U.S. 296, 298, 301-10 (1989).
In exceptional circumstances, the Court has discretion to request counsel to voluntarily
provide representation. 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any
person unable to afford counsel”); see also Mallard, 490 U.S. at 298; 30.64 Acres of Land, 795 F.2d at
798-803. To decide whether such “exceptional circumstances” exist, the Court evaluates both the
likelihood of a litigant’s success on the merits and his or her ability to articulate claims pro se in light of
the complexity of the legal issues involved. Rand, 113 F.3d at 1525; Terrell v. Brewer, 935 F.2d 1015,
1017 (9th Cir. 1991). “Neither of these factors is dispositive and both must be viewed together before
reaching a decision” regarding appointment of counsel. Wilborn v. Escalderon, 789 F.2d 1328, 1331
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(9th Cir. 1986).
In Wilborn, 789 F.2d at 1331, the court affirmed the denial of a plaintiff’s motion for
request of counsel in a civil case. The court stated that although the plaintiff may have encountered
difficulties articulating his claims pro se, the plaintiff had neither demonstrated a likelihood of success
on the merits nor shown that his difficulties derived from the relative complexity of the issues involved.
Id. The court also noted that although discovery is necessary to gather essential facts, and a pro se
litigant will rarely be in the position to easily investigate such facts, the need for such discovery does
not necessarily qualify the issues involved as “complex.” Id. “If all that was required to establish
successfully the complexity of the relevant issues was a demonstration of the need for development of
further facts, practically all cases would involve complex legal issues.” Id.
III.
Discussion
After seriously evaluating the Nassbridges’ Application, the Nassbridges’ likelihood of
success on the merits and the Nassbridges’ inability to articulate claims against the relative complexity
of the matter have not been sufficiently established.
1.
Likelihood of Success on the Merits
The Nassbridges have not demonstrated a likelihood of success on the merits. The
Nassbridges declared that their answers, motions, and other responses in this matter were deemed
unacceptable by the Court, as they were either denied or stricken. Further, the Nassbridges aver that
leaving them without representation by counsel would be injustice and would cause their legal
problems to worsen. Application, ¶¶ 2-4. R. Nassbridges additionally declared that he at no time
committed the alleged fraud. Declaration of Ryan Nassbridges In Support of Defendant’s Application
for Court Appointment of Counsel, ¶ 6. These declarations fall short of demonstrating a likelihood of
success on the merits.
2.
Ability to Articulate Claims Against the Relative Complexity of the
Matter
The Nassbridges have not demonstrated that their inability to articulate their claims
derives from the complexity of the claims in this matter. The Nassbridges’ answers, motions, and other
responses in this matter were deemed unacceptable by the Court, as they were either denied or stricken.
Application, ¶ 2. Therefore, the Nassbridges would like the Court to appoint an attorney who can
inform the Court of the facts merely because they have been unsuccessful in doing so. This desire does
not qualify the issues involved as “complex.” Although the Court has sympathy for the plight of the
pro se, there is not sufficient evidence showing that this case is particularly complex.
IV.
Disposition
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In light of the foregoing, the Court DENIES the Nassbridges’ Application for Court to
Appoint an Attorney.
The Clerk shall serve this minute order on all parties to the action.
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