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DE LUCA v. BARRETO

United States District Court, S.D. New York


August 11, 2005.

MARYANN T. DE LUCA, Plaintiff,
v.
HECTOR V. BARRETO, Administrator, U.S. Small Business Administration, Defendant.

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge

MEMORANDUM AND ORDER

In this action, brought principally under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e-2000e17 ("Title VII"), Plaintiff Maryann T. De Luca ("Plaintiff"), proceeding pro se, has asked the Court to grant her in forma pauperis status and to request pro bono counsel to represent her. In addition, Plaintiff has not served her Amended Complaint on Defendant within 120 days, as required by Rule 4(m) of the Federal Rules of Civil Procedure. For the reasons discussed below, Plaintiff's request for in forma pauperis status and her application for counsel are denied, and Plaintiff is granted a further extension of time, until September 16, 2005, to serve her Amended Complaint on Defendant.

DISCUSSION

  I. REQUEST TO PROCEED IN FORMA PAUPERIS

  Plaintiff commenced this action by filing a Complaint and an Application for the Court to Request Counsel, which were both received by the Court's Pro Se Office on September 13, 2004. (See Dkt. 1-2.) Attached to Plaintiff's Application was a Request to Proceed In Forma Pauperis. (See Request to Proceed In Forma Pauperis, dated September 8, 2004, attached to Application for the Court to Request Counsel ("Application") (Dkt. 1).) In her Request, Plaintiff indicates that she is employed at Fontbonne Hall Academy, in Brooklyn, New York, at a salary of $41,000 per year. (Id. ¶ 1.) Plaintiff also declares that she has $25,000 in liquid assets and that she owns a house and an automobile. (Id. ¶¶ 4-5.) Moreover, Plaintiff has already prepaid the filing fee of $150 for filing her original Complaint in this action. (See Dkt. 2.) Therefore, as Plaintiff has not demonstrated an inability to prepay her filing fees, Plaintiff's request to proceed in forma pauperis is denied. See 28 U.S.C. § 1915(a)(1).

  II. APPLICATION FOR COUNSEL

  Plaintiff has also applied to this Court to request pro bono counsel to represent her. (See Application.) Unlike criminal defendants, indigents filing civil actions have no constitutional right to counsel. Barzey v. Daley, No. 99 Civ. 11917 (BSJ) (KNF), 2000 WL 959713 (S.D.N.Y. July 11, 2000). In most civil actions, a plaintiff may only apply to the Court to request pro bono counsel on his or her behalf, under the statute governing proceedings in forma pauperis, 28 U.S.C. § 1915(e)(1). For cases brought under Title VII, however, a plaintiff may apply to the Court to appoint counsel for him or her, under Title VII's own provision for appointment of counsel, 42 U.S.C. § 2000e-5(f)(1). See Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 200, 203 (2d Cir. 2003); Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 171 (2d Cir. 1989); Jenkins v. Chem. Bank, 721 F.2d 876, 878-79 (2d Cir. 1983). This provision provides that, "[u]pon application by the complainant [in a Title VII action,] and in such circumstances as the court may deem just, the court may appoint an attorney." 42 U.S.C. § 2000e-5(f)(1).

  The Second Circuit has held that, unlike appointment of counsel under the in forma pauperis statute, this Court need not find a Title VII plaintiff indigent in order to consider whether he or she is eligible for appointed counsel. See Jenkins, 721 F.2d at 880 ("A court should assess a plaintiff's ability to afford a private attorney, although the litigant need not be destitute before an appointment is made."). According to the Second Circuit, both the text and the legislative history of the Title VII provision "reinforce? Congress's view that courts must give serious consideration to these requests." Id. at 879.

  In other respects, however, under Second Circuit law, this Court uses the same criteria to analyze applications for counsel under Title VII as apply to applications for counsel under the in forma pauperis statute. Cooper, 877 F.2d at 171-72 (citing Jenkins). As a threshold matter, the Court must determine whether the applicant's "`position seems likely to be of substance.'" Id. at 172 (quoting Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)). A Title VII plaintiff can make this threshold showing of merit through "specific allegations" of instances of discrimination. Ferrelli, 323 F.3d at 205. Although it is not necessary for the plaintiff to demonstrate that his or her claims will survive a motion to dismiss or a motion for summary judgment, see id. (citing Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)), a plaintiff must show more than "`mere bald assertions . . . [that] technically put a fact in issue and suffice to avert summary judgment,'" id. at 205-06 (quoting Cooper, 877 F.2d at 172). Because "[v]olunteer lawyer time is a precious commodity," courts should not grant pro bono representation to a plaintiff with "a meritless case that no lawyer would take" were the plaintiff able to afford counsel. Cooper, 877 F.2d at 172, 174.

  In this case, Plaintiff, a white female, alleges that Defendant, her employer, discriminated against her on the basis of her race and gender. (See Amended Complaint, filed December 16, 2004 ("Am. Compl.") (Dkt. 4), ¶¶ 1-8.) In her Amended Complaint, Plaintiff pleads, with specificity, a series of alleged incidents of disparate treatment, discriminatory harassment, retaliation, and denial of Family Medical Leave that occurred when she was an employee of Defendant, allegedly culminating in her termination. (See id. ¶¶ 20-37.) These "specific allegations," whether or not they would survive a motion to dismiss, at least appear, on the face of the complaint, to make the threshold showing of merit necessary for Plaintiff to be eligible for appointed counsel under Title VII. See Ferrelli, 323 F.3d at 205-06.

  Where a plaintiff satisfies the threshold requirement of demonstrating that his or her position is likely to be of substance, the Court should then consider: (1) the plaintiff's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact-finder; (3) the plaintiff's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in the case why appointment of counsel would be more likely to lead to a just determination. See Hodge, 802 F.2d at 61-62; see also Ferrelli, 323 F.3d at 203-04 (citing Hodge); Cooper, 877 F.2d at 172 (citing Hodge). The Court should also consider whether the plaintiff has attempted to obtain a lawyer, and whether the plaintiff can afford to pay a private attorney for assistance. See Cooper, 877 F.2d at 172; Jenkins, 721 F.2d at 880.

  Here, Plaintiff has, to date, demonstrated an ability to investigate and present the relevant facts. For example, Plaintiff, on her own, has taken her claim through the EEOC administrative process and, in connection with this action, she has compiled the administrative records and other documents in her possession that relate to her claim. (See documents attached to Am. Compl.) Further, should Plaintiff be required to elicit facts through cross-examination, Plaintiff's care, to date, in detailing "the facts and circumstances surrounding [her] claims indicates to the Court that plaintiff will be able to frame questions to elicit responses pertinent to the prosecution of the action." Harris v. Totten, No. 01 Civ. 5214 (SHS) (KNF), 2002 WL 230849, at *2 (S.D.N.Y. Feb. 15, 2002). Throughout this case, Plaintiff has submitted clear, well-written papers that adequately address the issues presented. Moreover, Plaintiff generally appears capable of understanding and presenting the legal issues raised by her claims. See Hodge, 802 F.2d at 61-62. Additionally, Plaintiff has offered no special reason why appointment of counsel in this case would increase the likelihood of a just determination.

  Finally, although Plaintiff claims that she has undertaken substantial efforts to find pro bono counsel, approaching numerous clinics and non-profit organizations (see Application ¶ 3; Am. Compl. at 1-2), Plaintiff has not demonstrated that she is unable to afford to retain private counsel to assist her. Indeed, Plaintiff alleges in her Amended Complaint that the statute of limitations in this case should be equitably tolled because she had relied on the assurances of a private attorney, to whom she had paid a consultation fee of $300, that he would commence a civil action on her behalf. (See Am. Compl. at 2.) Further, Plaintiff's statements in her Request to Proceed In Forma Pauperis suggest that she may have sufficient personal assets to be able to afford to retain a private attorney. (See supra at 2.)

  It is true, as the Second Circuit has recognized, that "[l]itigation long ago became so expensive that it exceeds the means of all but a tiny fraction of the population." Cooper, 877 F.2d at 173. Nevertheless, with the availability of a "lawyer marketplace" that is willing to represent personal claimants on a contingent fee basis, non-indigent plaintiffs whose claims have some chance of success are generally able to find private attorneys to represent them. See id. at 173-74. As Plaintiff has not shown any special reason why she cannot obtain counsel through such means, this Court should not expend limited volunteer-attorney resources to assist her. See id. at 173 ("A claim that could not command a lawyer's acceptance if possessed by an employed middle-class property owner should not command a pro bono lawyer.").

  Accordingly, the Court finds that appointment of pro bono counsel on Plaintiff's behalf is not warranted in order for a just determination to be reached in this action. See 42 U.S.C. § 2000e-5(f)(1).

  III. SERVICE OF PROCESS

  Rule 4(m) of the Federal Rules of Civil Procedure required Plaintiff to have served the Summons and Amended Complaint on Defendant within 120 days of its filing or to show the Court good cause why she had failed to do so.*fn1 Plaintiff filed her Amended Complaint on December 16, 2004. On March 22, 2005, the Court's Pro Se Office sent notice to Plaintiff regarding her obligation to serve the Summons and Amended Complaint. On May 13, 2005, I issued an Order providing Plaintiff with additional time, until July 14, 2005, for her either to serve the Summons and Amended Complaint or to submit to the Court an affidavit demonstrating good cause for failure to effect timely service. The Court has received no response from Plaintiff to my May 13, 2005 Order. Although the July 14, 2005 deadline for service of process has now expired, and although Plaintiff has made no showing of good cause for failing to comply with the deadline, the Court is nonetheless aware that Plaintiff is proceeding pro se and that Plaintiff may have been waiting for the Court's decision on her application for councel before making any further attempts to prosecute this action. Therefore, in the interest of justice, I am granting Plaintiff one final extension, until September 16, 2005, to serve Defendant and file proof of service with this Court or to explain in writing why she has failed to serve Defendant. As Plaintiff's Summons has now expired, the Court will arrange for the Court's Pro Se Office to send to Plaintiff an Amended Summons so that she may still serve Defendant. At this point, however, if Plaintiff fails to serve Defendant with the Amended Summons and Amended Complaint by September 16, 2005, I will recommend that her case be dismissed.

  CONCLUSION

  For the foregoing reasons, Plaintiff's request to proceed in forma pauperis and her application for counsel are denied. The Clerk of the Court shall issue Plaintiff an Amended Summons. If Plaintiff fails to serve Defendant with the Amended Summons and Amended Complaint by September 16, 2005, or the explain in writing why she has failed to do so, I will recommend that her case be dismissed.

  SO ORDERED

20050811

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