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Harris v. The Bozzuto Group

United States District Court, D. New Jersey

February 21, 2019

The Bozzuto Group, et al.

         D.E. 54, 55, Motions For Pro Bono Counsel



         Dear Litigants:

         Before the Court are Plaintiff, Beverly Harris[1]("Ms. Harris") Motions for Pro Bono Counsel.' The Court has reviewed Ms. Harris' Motions, and for the reasons set forth herein, they are DENIED.


         Magistrate judges are authorized to decide any non-dispositive motion designated by the Court.[2] This District specifies that magistrate judges may determine all non-dispositive pre-trial motions, including motions for pro bono counsel.[3] Decisions by magistrate judges must be upheld unless "clearly erroneous or contrary to law."[4]


         District courts are granted broad discretion to appoint attorneys to represent indigent civil litigants, [5] but civil litigants possess neither a constitutional nor a statutory right to appointed counsel.[6] Moreover, though Congress has empowered district courts to "request" counsel for civil litigants, courts cannot "require" an unwilling attorney to serve as counsel.[7] 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."[8]

         When evaluating a request for the appointment of pro bono counsel, a district court should first determine whether the plaintiffs claim "has arguable merit in fact and law."[9] The Third Circuit has articulated an analytical framework that district courts must use in exercising their discretion.[10] The analysis begins with a threshold assessment of the merits of the case.[11]

         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.[12] These factors include: (1) the plaintiffs ability to present his case; (2) the complexity of the legal issues involved; (3) the extent of factual discovery and the plaintiffs 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.[13]

         The Court assumes solely for the purpose of this Application that Ms. Harris' case has "some arguable merit in fact and law."[14] The Court need not undertake a detailed analysis of this point because application of the Tabron post-threshold factors weighs against appointment of pro bono counsel at this time.

         1. Ms. Harris' Ability to Present Her Case

         The first factor has been identified as "perhaps the most significant."[15] For this factor, the Court considers Ms. Harris' "education, literacy, prior work experience, and prior litigation experience...."[16] As additional guidance, the Third Circuit has noted that courts should consider Ms. Harris' ability to present her case "[i]n conjunction with ... the difficulty of the particular legal issues."[17]

         Ms. Harris contends that she requires pro bono counsel "for advisory assistance ... [concerning] the Fed[eral] Rules[, ] ... Local Requirements[, ] ... required documents[, ] and deadlines."[18] Ms. Harris' lack of formal legal training alone, however, does not constitute sufficient grounds to warrant the appointment of counsel.[19] Ms. Harris' level of education is not entirely clear from her submissions to the Court, but she does refer to herself as "Dr." in those submissions, implying that she may have some form of higher education.[20] Additionally, she seems to have already appeared as a pro se litigant (in a case before the United States District Court for the Southern District of New York).[21]

         Furthermore, Ms. Harris' filings with the Court thus far reflect literacy and a general understanding of the litigation process. For example, without the aid of counsel, Ms. Harris has already drafted and amended her complaint, [22] responded to Defendants', Thomas Bozzuto, Toby Bozzuto, David Curcio, Michelle Demetriou, and the Bozzuto Group ("Defendants"), Motion to Dismiss, [23] and filed various motions, including this one to appoint pro bono counsel.[24] 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. To assess the complexity of legal issues for the purpose of appointing counsel, "courts must ... look to the proof going towards the ultimate issue and the discovery issues involved."[25] The Third Circuit has stated that "where the law is not clear, it will often best serve the ends of justice to have both sides of a difficult legal issue presented by those trained in legal analysis."[26]

         Ms. Harris has pled negligence, violations of 28 U.S.C. § 2511, defamation, first amendment violations, and other potential civil rights violations.[27] At the present time, the Court does not find the legal issues in this action to be particularly complex. Ms. Harris seems to agree (she notes in her "Amended" Motion For Pro Bono counsel that even were counsel to be appointed, she expects "to remain in full control" of her substantive legal claims).[28] Therefore, the second Tabron factor weighs against appointment.

         3. The Degree to Which Factual Investigation ...

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