Foster v. Swissport Fueling Services

Filing 7

MEMORANDUM AND ORDER : 4 IT IS HEREBY ORDERED that plaintiff's motion for appointment of counsel (ECFNo. 4) is DENIED without prejudice.. Signed by Magistrate Judge David D. Noce on 9/12/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JESSE FOSTER,
Plaintiff,
v.
SWISSPORT FUELING SERVICES,
Defendant.

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No. 4:16-cv-1384 DDN

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Jesse Foster’s Motion to Appoint Counsel.
(ECF 4). The motion will be denied at this time without prejudice.
Plaintiff brings this action against his former employer, defendant Swissport Fueling
Services, pursuant to Title VII of the Civil Rights Act of 1964, the Missouri Human Rights Act,
and 42 U.S.C. § 1981. In his Complaint, plaintiff states that he was hired on March 15, 2013 as a
“Fueler” at defendant’s Lambert Airport location, and was subsequently promoted to a
supervisory position and ultimately to a management position. Plaintiff alleges that the terms
and conditions of his employment differed from those of similar employees, and that he was
retaliated against and terminated. Plaintiff also alleges that his immediate supervisor addressed
him using racially-charged terms. Plaintiff seeks reinstatement to the position of Manager with
equal pay, and monetary damages.
“A pro se litigant has no statutory or constitutional right to have counsel appointed in a
civil case.” Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (citation omitted). The
decision to appoint counsel is therefore within the Court’s discretion.

Nelson v. Redfield

Lithograph Printing, 728 F.2d 1003, 1004 (8th Cir. 1984). In determining whether to appoint
counsel, the Court considers several factors, including the factual complexity of the case; the

plaintiff’s ability to investigate the facts and present his claim; whether the plaintiff can afford to
hire an attorney and has made a good-faith effort to retain one; and whether the nature of the
litigation is such that the plaintiff and the Court would benefit from the assistance of counsel.
Stevens, 146 F.3d at 546; Slaughter v. Maplewood, 731 F.2d 587, 590 (8th Cir. 1984).
The claims plaintiff presents are neither frivolous nor malicious.

After careful

consideration of the instant motion, the Court concludes that the appointment of counsel is not
warranted at this time. Plaintiff’s claims are neither factually nor legally complex. Plaintiff does
not allege, nor is it apparent, that investigation of the facts surrounding his claims would be
beyond his capability, and plaintiff has demonstrated his ability to adequately present his claims
to the Court. While plaintiff has been granted leave to proceed in forma pauperis, that does not
necessarily mean that he cannot secure the services of an attorney, as some attorneys take
employment discrimination cases on a contingent-fee basis. While plaintiff states in his motion
that he has made diligent efforts to find an attorney to represent him, he does not explain such
efforts to the Court. Finally, it cannot be said at this time that the appointment of counsel would
be sufficiently beneficial to plaintiff and the Court. As the case progresses, this Court will
entertain motions for the appointment of counsel, as appropriate.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for appointment of counsel (ECF
No. 4) is DENIED without prejudice.

/s/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE

Signed on September 12, 2016.

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