Moss v. First Student, Inc.

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for default judgment [# 13 ] is denied. IT IS FURTHER ORDERED that plaintiff's motion to appoint counsel [# 3 ] is denied without prejudice. IT IS FURTHER ORDERED that defendant's motion to set aside default [# 18 ] is granted. IT IS FURTHER ORDERED that defendant's shall answer the complaint no later than March 1, 2014. Signed by District Judge Catherine D. Perry on February 18, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WHITNEY MOSS,
Plaintiff,
vs.
FIRST STUDENT, INC.,
Defendant.

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) Case No. 4:13CV2043 CDP
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MEMORANDUM AND ORDER
This case comes before me on the competing motions of plaintiff Whitney
Moss for default judgment and of defendant First Student, Inc., to set aside the
clerk’s entry of default. Plaintiff has alleged Title VII violations that include racial
discrimination, retaliation, and hostile work environment.
The service return shows that the summons and Complaint were served on
“Julie Morris (Human Resources).” Ms. Morris has submitted an affidavit stating
that she is not a member of the corporation’s human resources department, that she
is the location safety manager at First Student’s Union Center location, that she is
not authorized to accept service on behalf of First Student, and that she and the
Location Manager have no recollection of being served with either the summons or
complaint.

First Student requests that the clerk’s entry of default be set aside for good
cause so that they might present their defenses. As Moss has not been unduly
prejudiced, I will grant First Student’s motion and will deny Moss’s motion for
default.
Moss has also moved for appointment of counsel. There is no constitutional
or statutory right to appointed counsel in a civil case. Rayes v. Johnson, 969 F.2d
700, 702 (8th Cir. 1992). The Court may appoint counsel upon a showing that a
person needs and is unable to afford counsel. Id. See also 28 U.S.C. § 1915e
(1996). In evaluating a person’s need, several factors are considered, including the
likelihood that the person and the court will benefit from the assistance of counsel,
the factual complexity of the case, the person’s ability to investigate the facts and
present a defense, the existence of conflicting testimony, and the complexity of the
legal issues. See In re Lane, 801 F.2d 1040, 1043–44 (8th Cir. 1986).
Moss has been granted leave to file this case in forma pauperis. She lacks
the financial resources to pay out of pocket for counsel, and states that she has
been unable to find counsel due to her poverty. However, Moss seeks actual and
punitive damages amounting to over $4,000,000 in addition to legal fees. Title VII
gives discretion to the court to grant reasonable attorney’s fees to the prevailing
party. 42 U.S.C. § 2000e-5(k) (2009). Thus, Moss may yet be able to find counsel
willing to take this case on contingency.

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Additionally, Moss’s memorandum in opposition to First Student’s motion
to set aside default exhibited some ability by Moss to present a defense, and she is
likely able to investigate the facts, as she was present for much of the alleged
discriminatory conduct. After considering the relevant factors, I do not find that
appointment of counsel is appropriate at this time.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for default judgment
[# 13] is denied.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel
[#3] is denied without prejudice.
IT IS FURTHER ORDERED that defendant’s motion to set aside default
[# 18] is granted.
IT IS FURTHER ORDERED that defendant’s shall answer the complaint
no later than March 1, 2014.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 18th day of February, 2014.

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