African International Store et al v. U.S. Department of Agriculture
Filing
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OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc. No. 7], is granted. IT IS FURTHER ORDERED that Plaintiffs are given 7 days from the date of this Opinion, Memorandum and Order to file an Amended Complaint. Fa ilure to do so will result in dismissal of this action.IT IS FURTHER ORDERED that Plaintiffs Motion for Appointment of Counsel [Doc. No. 2] is denied without prejudice. 7 2 ( Response to Court due by 2/5/2014.) Signed by District Judge Henry E. Autrey on 1/29/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
AFRICAN INTERNATIONAL STORE, et al..,
Plaintiffs,
vs.
UNITED STATES DEPARTMENT OF
AGRICULTURE,
Defendants.
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Case No. 4:12CV2326 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motions to Dismiss [Doc.
No. 7], and Plaintiffs’ Motion to Appoint Counsel, [Doc. No. 2]. Plaintiff did not
respond to the Motion to Dismiss.
Defendant moves to dismiss because Plaintiffs named the Department of
Agriculture and not the United States of America. The Court agrees with a
colleague of this Court that in the interests of justice, Plaintiffs should be given the
opportunity to amend under the Federal Rules of Civil Procedure, in particular,
Rule 15. See, Mohammad v. United States, Cause Number 4:10CV1682.
Plaintiffs’ failure to do so and name the appropriate defendant will, however,
result in dismissal of this action.
The Court notes that there is no constitutional or statutory right to the
appointment of counsel in a civil case. Phillips v. Jasper County Jail 437 F.3d
791, 794 -795 (8th Cir. 2006). The relevant criteria for determining whether
counsel should be appointed include the factual complexity of the issues, the
ability of the indigent person to investigate the facts, the existence of conflicting
testimony, the ability of the indigent person to present the claims, and the
complexity of the legal arguments. Edgington v. Missouri Dep't of Corr., 52 F.3d
777, 780 (8th Cir.1995), abrogated on other grounds, Doe v. Cassel, 403 F.3d
986, 989 (8th Cir.2005). In considering a motion to appoint counsel for an
indigent plaintiff, the court should “determine whether the nature of the litigation
is such that plaintiff as well as the court will benefit from the assistance of
counsel.” Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir.
1984).
Plaintiffs seek a review of the denial of their right to participate in the food
stamps program. This case does not appear to be so complex that Petitioner is
unable to pursue this action without the assistance of counsel. Having considered
the factual complexity of the case, the basis upon which Plaintiffs’ claims rest, the
ability of Plaintiffs to present their claims, and the complexity of the legal issues
involved in this case, see Johnson v. Williams, 788 F.2d 1319, 1323 (8th Cir.
1986), the Court concludes that appointment of counsel is not warranted at this
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time.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc.
No. 7], is granted.
IT IS FURTHER ORDERED that Plaintiffs are given 7 days from the date
of this Opinion, Memorandum and Order to file an Amended Complaint. Failure
to do so will result in dismissal of this action.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Appointment of
Counsel [Doc. No. 2] is denied without prejudice.
Dated this 29th day of January, 2014.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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