Christian v. Commerce Bank N.A. et al

Filing 15

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiffs motion for appointment of counsel and for trial by jury is GRANTED in part and DENIED in part as set forth below: Doc. No. 4 . a. Plaintiffs motion for appointment of counsel is DENIED wit hout prejudice. b. Plaintiffs motion for jury trial is GRANTED, subject to the Courts future. reconsideration of the issue, as appropriate. IT IS FURTHER ORDERED that Plaintiffs motion to proceed in forma pauperis is GRANTED. Doc. No. 6 . IT IS F URTHER ORDERED that Plaintiffs motions to compel are DENIED without prejudice. Doc. Nos. 7 & 8 . IT IS FURTHER ORDERED that Plaintiffs request that the Clerk of Court email all electronically filed documents to him is GRANTED. Doc. No. 14 . IT I S FURTHER ORDERED that, on or before April 25, 2014, Plaintiff shall file his email address with the Court in typewritten or clearly legible handwritten format. IT IS FURTHER ORDERED that upon receipt of Plaintiffs email address, the Clerk of Court shall take all steps necessary to assure that Plaintiff receives emailed copies of all filings in this case. Signed by District Judge Audrey G. Fleissig on 4/18/2014. (RAK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
FRED CHRISTIAN d/b/a SPARKLE
)
QUALITY CLEANERS AND
)
LAUNDRY,
)
)
Plaintiff,
)
)
v.
)
Case No. 4:14CV00201 AGF
)
COMMERCE BANK N.A., et al.,
)
)
)
Defendants.
)
MEMORANDUM AND ORDER
On January 2, 2014, Plaintiff pro se Fred Christian d/b/a Sparkle Quality Cleaners
and Laundry filed this action in the Circuit Court for the City of Saint Louis alleging that
Defendants Commerce Bank, N.A. and Jeannine Murphy discriminated against him by
denying his application for a small business loan. Plaintiff seeks $100,000 dollars in
actual damages and more than $50,000 dollars in punitive damages. The Circuit Court
granted Plaintiff in forma pauperis status.
On February 4, 2014, Defendants filed a notice of removal to this Court. Plaintiff
now seeks leave to proceed in forma pauperis in this Court and moves for appointment of
counsel, a jury trial, and to compel responses to certain discovery requests. In addition,
Plaintiff requests that the Clerk of the Court email copies of all electronic filings to him at
his personal email address.
I. Appointment of Counsel
The Court first considers Plaintiff’s motion for the appointment of counsel. In a

civil matter such as this one, the Court has discretion to appoint an attorney when
necessary, but there is no constitutional right to the assistance of counsel in this case.
Lopez-Lopez v. Sanders, 590 F.3d 905, 906 (8th Cir. 2010); Morris v. Dormire, 217 F.3d
556, 558 (8th Cir. 2000). Among the factors the Court considers in deciding whether to
appoint counsel are the factual and legal complexity of the case, the ability of the pro se
party to present both the facts and his legal claims, and the degree to which the pro se
party and the Court would benefit from such an appointment. See Morris, 217 F.3d at
558-59; Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994).
Reviewing the record in light of these factors, the Court finds that the legal issues
presented by Plaintiff’s complaint are not complex and have not changed since Plaintiff
initiated this action, without the assistance of counsel, in the Circuit Court. In addition,
the Court finds that Plaintiff has adequately presented his claims and requests in the
complaint and in his subsequent filings. Therefore, appointment of counsel would not
greatly benefit either Plaintiff or the Court. For these reasons, the Court will deny the
motion for appointment of counsel without prejudice to refiling in the event that changed
circumstances prompt Plaintiff to reassert it.
II. Jury Demand
Plaintiff also moves for a jury trial in this action. Apart from asserting that the
complaint should be dismissed as frivolous, Defendants have not responded to Plaintiff’s
request for a jury trial. Having reviewed the complaint, the Court is satisfied that
Plaintiff alleges claims for monetary relief entitling him to a jury trial under the Seventh
Amendment to the United States Constitution. If, after further development of the record
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it should become clear that some or all of the issues presented are not triable to a jury, the
Court reserves the right to modify its ruling on this issue in accordance with applicable
law.
III. Leave to Proceed in forma pauperis
Turning to Plaintiff’s request for in forma pauperis status, the Court notes that the
primary advantage to proceeding in forma pauperis is the waiver of all or part of the
filing fee. See 28 U.S.C. § 1915 (a) (1). In this case, the Circuit Court granted Plaintiff
in forma pauperis status and waived the filing fee. Defendants’ decision to remove the
action to this Court does not obligate Plaintiff to pay an additional filing or other fee.
Nevertheless, the Court will consider Plaintiff’s motion to proceed in forma pauperis
here, because other litigation costs may be waived or reduced where such status is
granted. See 28 U.S.C. § 1915(c).
The disclosures in the February 20, 2014 financial affidavit, (Doc. No. 5),
accompanying the motion, indicate that Plaintiff should be permitted to proceed in forma
pauperis in this Court. Nevertheless, Defendants ask the Court to take notice of allegedly
contradictory financial information Plaintiff provided in the loan application that is the
subject of his suit and to deny his request to proceed in forma pauperis. See Doc. Nos.
11-1 & 11-2. Upon review of the affidavit and the loan documents, however, the Court
cannot conclude that the loan application refutes the representations made in the affidavit.
Plaintiff completed the loan application on July 27, 2013, approximately eight months
before he completed the financial affidavit. On the record before it, the Court has no
reason to believe that Plaintiff’s financial situation has not changed with the passage of
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time or that the information in the affidavit does not reflect Plaintiff’s current financial
situation. If, during the course of this litigation Defendants should discover facts
indicating that Plaintiff’s claim of indigence is untrue, the Court will revisit the issue on
Defendants’ motion. See 28 U.S.C. § 1915(e)(2)(A).
IV. The Motions to Compel
In each of his two motions to compel, Plaintiff seeks to obtain responses to
interrogatories and other discovery requests filed in the Circuit Court prior to the removal
of this action. Defendants oppose the motions on the ground that the procedural rules
applicable in this Court do not require a party to respond to discovery requests
propounded in the state court. The Court agrees that in light of the removal to federal
court no responses to the discovery requests previously filed in state court are currently
due and will deny the motions to compel without prejudice to refiling as necessary. See
Fed. R. of Civ. P. 26(d)(1).
The parties are required to follow the discovery procedures set forth in the Federal
Rules of Civil Procedure. And Plaintiff is reminded that as a pro se litigant he is required
to abide by those Rules as well as the Local Rules of this District, which can be found on
the Court’s website. See United States v. Green, 691 F.3d 960, 965-66 (8th Cir. 2012)
(holding that “the right of self-representation is not ‘a license not to comply with relevant
rules of procedural and substantive law’”) (quoting Faretta v. Calif., 422 U.S. 806, 834 n.
46 (1975)). Once the parties have conferred and made the disclosures required under
Federal Rule of Civil Procedure 26(d), Plaintiff may seek responses to the earlier-filed
discovery requests consistent with the time frames for responses set forth in the Federal
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Rules of Civil Procedure, and may refile his motions to compel if Defendants fail to
respond.
V. Request for Emailed Copies of Electronic Filings
Finally, the Court grants Plaintiff’s request to receive emailed copies of all
electronic documents filed in the case and displayed on the Court’s Pacer/CMECF
electronic filing system. The Court will direct the Clerk of Court to add the email
address1 provided by Plaintiff to the distribution list for electronic filings. Plaintiff is
advised that once he is approved for email notification, he will not receive paper copies in
the mail of orders entered by the Court or documents filed by Defendants. Plaintiff will
receive only the email notifications from the Court’s electronic filing system. Plaintiff
need not, but may choose to directly access the Pacer/CMECF electronic filing system to
view filings; however, to do so he must open a Pacer/CMECF account at his own
expense.2
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion for appointment of counsel
and for trial by jury is GRANTED in part and DENIED in part as set forth below:
(Doc. No. 4.)
a. Plaintiff’s motion for appointment of counsel is DENIED without prejudice.
b. Plaintiff’s motion for jury trial is GRANTED, subject to the Court’s future
1

The email address Plaintiff provided with his motion, (Doc. No. 14), is not legible.
Therefore, the Court will require Plaintiff to refile his email address with the Court.
2
Instructions for establishing and using a Pacer/CMECF account may be found on the
website of the United States District Court for the Eastern District of Missouri at
http://www.moed.uscourts.gov.
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reconsideration of the issue, as appropriate.
IT IS FURTHER ORDERED that Plaintiff’s motion to proceed in forma
pauperis is GRANTED. (Doc. No. 6.)
IT IS FURTHER ORDERED that Plaintiff’s motions to compel are DENIED
without prejudice. (Doc. Nos. 7 & 8.)
IT IS FURTHER ORDERED that Plaintiff’s request that the Clerk of Court
email all electronically filed documents to him is GRANTED. (Doc. No. 14.)
IT IS FURTHER ORDERED that, on or before April 25, 2014, Plaintiff shall
file his email address with the Court in typewritten or clearly legible handwritten format.
IT IS FURTHER ORDERED that upon receipt of Plaintiff’s email address, the
Clerk of Court shall take all steps necessary to assure that Plaintiff receives emailed
copies of all filings in this case.
/s/Audrey G. Fleissig
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 18th day of April, 2014.

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