MacEachern v. Quicken Loans Inc. et al

Filing 56

ORDER denying 54 plaintiff's second Motion to Appoint Counsel. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HUGH MacEACHERN,
Plaintiff,
CASE NO. 15-CV-12448
HONORABLE GEORGE CARAM STEEH

v.
QUICKEN LOANS INC.,
and TITLE SOURCE, INC.,
Defendants.
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ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF COUNSEL (Doc. 54)
Now before the court is pro se plaintiff Hugh MacEachern’s second motion for
appointment of counsel. Plaintiff filed this employment discrimination action alleging
wrongful termination based on his gender, age, and Caucasian race in violation of Title
VII, the Age Discrimination in Employment Act (“ADEA”), and retaliation under the
American’s with Disabilities Act (“ADA”), and in retaliation for initiating discussions with
a union. His prior motion was denied without prejudice on the basis that plaintiff failed to
establish exceptional circumstances which would justify deviation from the general rule
that courts do not appoint counsel in civil matters. See Lavado v. Keohane, 992 F.2d
601, 605-06 (6th Cir. 1993) (“Appointment of counsel in a civil case is not a
constitutional right. It is a privilege that is justified only by exceptional circumstances.”).
In determining whether exceptional circumstances exist, courts consider the type of
case, the chance of success of plaintiff’s claims, and the plaintiff’s ability to represent
himself. See Johnson v. City of Wakefield, 483 F. App’x 256, 260 (6th Cir. 2012).
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In its prior order, the court considered the three factors and found that each
weighed against the appointment of counsel. The court has considered plaintiff’s
amended arguments here and adheres to its prior decision. First, and most
significantly, as the court previously observed, besides ordinary contingency fee
arrangements that allow indigent plaintiffs to secure their own counsel, Congress has
enacted the recovery of statutory attorney fees in employment discrimination cases
which provide for even greater access to the judicial process for those with civil rights
grievances. Attorney fees are available to prevailing plaintiffs under Title VII, 42 U.S.C.
§ 2000e-5(k), the ADA, 42 U.S.C. § 12205, and the ADEA. EEOC V. Memphis Health
Ctr., Inc., 526 F. App’x 607, 612 (6th Cir. 2013) (incorporating remedies of the Fair
Labor Standards Act, 29 U.S.C. § 216(b)). The statutory provisions allowing for
recovery of attorney fees to prevailing plaintiffs reflect Congressional intent to provide
incentives for attorneys to represent those who have suffered discrimination but lack the
financial ability to retain their own counsel.
In his prior motion, plaintiff stated that he had contacted at least six attorneys
seeking representation but had been unable to retain any of them. Now, plaintiff asserts
that he has contacted a seventh attorney, Deborah Gordon, who declined his case on
the grounds that she lacked the resources to take on the case without an adequate
retainer. Plaintiff argues that he is unable to retain counsel because plaintiff’s lawyers
are afraid to litigate against large companies like defendant Quicken Loans, Inc.,
especially when the defendant is represented by Honigman, Miller, Schwartz, and
Cohn, one of the largest and most prominent law firms in Detroit. Once again, the court

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is not convinced that the attorney fee provisions of the discrimination statutes plaintiff
relies upon are not sufficient to enable him to retain his own counsel.
Second, as noted previously, plaintiff’s inability to do so, given the existence of
these attorney fee provisions, may reflect unfavorably on the merits of his case. The
courts notes, however, that it has not otherwise had an opportunity to consider the
merits of plaintiff’s claims. Defendant has filed a motion for summary judgment which is
not yet ready for the court’s review, pending adjudication by the magistrate judge
assigned to this matter of outstanding discovery disputes. Plaintiff has also indicated
that he intends to file his own motion for summary judgment once discovery is complete.
Once the court rules on the summary judgment motions, it will be in a better position to
evaluate the merits of the case to determine if the appointment of counsel is
appropriate.
Third, in its prior order, the court noted that plaintiff has quite ably prepared his
legal papers which reflect a familiarity with the law and the Local Rules. Given his
demonstrated ability to represent himself, the court found that this factor also militated
against the appointment of counsel. Plaintiff now argues that he lacks the skills and
experience to navigate through the contested discovery process, or to represent himself
at trial, where he is expected to testify on his own behalf. Given the present record, the
court is not convinced that plaintiff requires the assistance of counsel to complete
discovery. However, should plaintiff survive defendant’s motion for summary judgment
and thus demonstrate the merits of his discrimination and retaliation claims, the court
would be willing at that time to reconsider plaintiff’s motion for the appointment of
counsel to represent him at trial.
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Accordingly, plaintiff’s motion for the appointment of counsel (Doc. 54) is
DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated: March 11, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 11, 2016, by electronic and/or ordinary mail and also on
Hugh MacEachern, 22126 Hayes Street,
Taylor, MI 48180-2422.
s/Barbara Radke
Deputy Clerk

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