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Depack v. Esmorado

United States District Court, D. New Jersey

December 3, 2018

Roy Depack, Jr.
v.
John Esmorado, et al.

         D.E. 53, Motion to Appoint Pro Bono Counsel

          LETTER OPINION-ORDER

          STEVEN C. MANNION UNITED STATES MAGISTRATE JUDGE

         Dear Litigants:

         This matter comes before the Court upon review of Plaintiff Roy J. Depack's (“Mr. Depack”) Motion to Appoint Pro Bono Counsel.[1] The Court has reviewed Mr. Depack's Motion and for the reasons set forth herein it is denied.

         District courts are granted broad discretion to appoint attorneys to represent indigent civil litigants, [2] but civil litigants possess neither a constitutional nor a statutory right to appointed counsel.[3] Moreover, though Congress has empowered district courts to “request” counsel for civil litigants, courts cannot “require” an unwilling attorney to serve as counsel.[4]

         This Court must therefore “take note of the significant practical restraints on the district courts' ability to appoint counsel: . . . the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation.”[5]

         When evaluating a request for the appointment of pro bono counsel, a district court should first determine whether the plaintiff's claim “has arguable merit in fact and law.”[6] The Third Circuit has articulated an analytical framework that district courts must use in exercising their discretion.[7] The analysis begins with a threshold assessment of the merits of the case.[8]

         If the court first finds “some arguable merit in fact and law, ” then it must go on to weigh a series of considerations known as the Tabron post-threshold factors.[9] These factors include: (1) the plaintiff's ability to present his case; (2) the complexity of the legal issues involved; (3) the extent of factual discovery and the plaintiff's ability to investigate and to comply with complex discovery rules; (4) the extent to which the case may turn on credibility determinations; (5) whether expert testimony will be required; and (6) whether the plaintiff can afford counsel on his or her own behalf.[10]

         For the purpose of evaluating these threshold factors, the Court assumes “solely for the purpose of this Application” that Mr. Depack's case has “some arguable merit in fact and law.”[11]The Court, however, need not undertake a detailed analysis of this point because application of the Tabron post-threshold factors overall weighs against appointment of pro bono counsel at this time.

         1. Mr. Depack's Ability to Present His Case

         The first factor has been identified as “perhaps the most significant.”[12] For this factor the Court considers Mr. Depack's “education, literacy, prior work experience, and prior litigation experience....”[13] As additional guidance, the Third Circuit has noted that courts should consider Mr. Depack's ability to present his case “[i]n conjunction with . . . the difficulty of the particular legal issues.”[14]

         Mr. Depack does not address this factor in his Motion, so the Court is unfamiliar with his educational history and prior work or litigation experience. However, his numerous filings with the Court thus far reflect literacy and a general understanding of the litigation process. For example, without the aid of counsel, Mr. Depack has already drafted and amended his complaint, responded to Defendant's motions, objected to the Court's scheduling order, and filed motions for recusal and requesting pro bono counsel. Therefore, the first Tabron factor weighs against appointment.

         2. The Legal Complexity of the Case

         The second Tabron factor concerns the complexity of the particular legal issues. Again, Mr. Depack's short argument in support of his Motion does not address this second Tabron factor. However, in looking to Mr. Depack's Complaint and Amended Complaint, the Court finds that Mr. Depack's factual claims are easy to understand and the legal issues ...


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