United States District Court, D. New Jersey
BRIAN R. MARTINOTTI United States District Judge
MATTER is before the Court on: (1) pro se
Plaintiff Frederick Leong's (“Leong”) letter
request to reopen his case (ECF No. 16); (2) Defendant Arrow
Limousine's (“Arrow”) Motion to Dismiss
Leong's Complaint with prejudice pursuant to Federal Rule
of Civil Procedure 41(b) (ECF No. 18); and (3) Leong's
Motion for Appoint of Pro Bono Counsel (ECF No. 21).
Pursuant to Federal Rule of Civil Procedure 78(b), the Court
did not hear oral argument. Having reviewed the parties'
submissions, for the reasons set forth below, and for good
cause shown, all motions are DENIED, the
case will remain CLOSED, and the case will
be dismissed with prejudice if Leong fails to file a motion
to amend his complaint within thirty (30) days.
underlying facts of this case are set forth in the
Court's Opinion, dated July 17, 2017, in which the Court
granted Arrow's unopposed Motion to Dismiss. (ECF No.
14.) Despite the motion being unopposed, and due to
Leong's pro se status, the Court conducted a
merits analysis and found the Complaint failed to state a
claim for discrimination. (Id.) Accordingly, the
Court dismissed the Complaint without prejudice and closed
the matter, but allowed Leong thirty days to amend his
complaint. (Id.) In response, on July 26, 2017,
Leong filed a two-sentence letter, asking the Court to reopen
his case because “Mr. Ted Caffyn, the service manager
of Arrow Limousine patronized me as being stupid and having
no rights.” (ECF No. 16.) Arrow objected, arguing
Leong's “letter is insufficient to amend the
complaint and reopen Plaintiff's lawsuit.” (ECF No.
August 25, 2017, after the time for Leong to file his amended
complaint expired, Arrow filed a motion to dismiss the
complaint with prejudice, pursuant to Federal Rule of Civil
Procedure 41(b), based on Leong's failure to prosecute
his case. While Leong has not objected to Arrow's motion,
he has filed two requests for the appointment of pro
bono counsel. (ECF Nos. 19 and 21.) Arrow opposes the
appointment of counsel. (ECF Nos. 20 and 22.)
Court must first address Leong's letter to reopen his
case. (ECF No. 16.) The sole reason provided by Leong is that
“Mr. Ted Caffyn, the service manager of Arrow Limousine
patronized me as being stupid and having no rights.”
(Id.) This is an insufficient reason to reopen the
“[p]ro se complaints must be
construed liberally, ” Healy v. U.S. Post
Office, 644 F. App'x 163 (3d Cir. 2016) (citing
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)), and
therefore, the Court gives Leong the benefit of the doubt and
assumes the letter is Leong's attempt-albeit a
procedurally deficient one-to comply with the Court's
order and amend his Complaint. Nevertheless, Leong fails to
state a claim. The additional allegation set forth in his
letter does not resolve deficiencies in the Complaint and
therefore does not change the decision of the Court, or the
reasons in support thereof, as set forth in its July 17, 2017
Order and Opinion dismissing and closing the case.
Accordingly, Leong's request to reopen his case is
moves to dismiss Leong's Complaint with prejudice,
arguing, pursuant to Federal Rule of Civil Procedure 41(b),
Leong failed to comply with a Court order by not filing an
amended complaint. Rule 41(b) states: “If the plaintiff
fails to prosecute or to comply with these rules or a court
order, a defendant may move to dismiss the action or any
claim against it.” In light of the Court's decision
that Leong's letter should be construed as an amendment
to his complaint due to his pro se status,
Arrow's motion must be denied. Leong has attempted to
prosecute his case and has even filed requests for the
appointment of pro bono counsel. The Court is not
prepared to find, nor does the record support a finding,
Leong disobeyed a Court order or abandoned his case.
Accordingly, Arrow's motion is denied.
Leong's motion for the appointment of pro bono
counsel is denied without prejudice. Courts are cautioned to
“[e]xercise care in appointing counsel because
volunteer lawyer time is a precious commodity and should not
be wasted on frivolous cases.” Parham v.
Johnson, 126 F.3d 454, 458 (3d Cir. 1997). While the
Third Circuit has set forth a list of factors a district
court must consider in determining whether to appoint counsel
for an indigent litigant in a civil case, the threshold
requirement is that “the plaintiff's claim must
have some merit in fact and law.” Id. at 457
(quoting Tabron v. Grace, 6 F.3d 147, 157 (3d Cir.
record before the Court does not support a meritorious case.
Even considering Leong's “amendment, ” he
fails to state a claim. Accordingly, the appointment of
pro bono counsel is not appropriate at this time and
Leong's application is denied.
Court will allow Leong one last attempt at amending his
complaint. If he chooses to do so, he shall move to amend his
complaint within thirty (30) days of this Order and shall
include a proposed amended complaint for the Court's
review. If the amended complaint fails to address the
deficiencies described in the Court's July 17, 2017
Opinion, the case will be dismissed with prejudice. If Leong
fails to move to amend his complaint, the Court will presume
he has chosen to stand on his presently filed complaint and
will dismiss the case with prejudice.
for the reasons set forth above, and for good cause
appearing, IT IS on this 26th day of March
2018, ORDERED that Leong's letter
request to reopen his case (ECF No. 16) is
DENIED; and it is further
that Arrow's Motion to Dismiss Leong's Complaint with
prejudice pursuant to Federal Rule of Civil Procedure 41(b)
(ECF No. 18) is DENIED; and it is further
that Leong's Motion for Appoint of Pro Bono
Counsel (ECF No. 21) is DENIED; and it is
that the case will remain CLOSED; ...