SHAFQAT v. MALIK
Filing
45
OPINION filed re. 40 . Signed by Judge Renee Marie Bumb on 11/4/2015. (drw)
[Docket No. 40]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
UZMA SHAFQAT,
Petitioner,
Civil No. 15-7645 (RMB/JS)
v.
OPINION
SHAFQAT MAHMOOD MALIK, et al.,
Respondents.
This matter is before the Court on the Motion for Pro Bono
Counsel (“Motion”) [Docket No. 40] filed by pro se Respondents
Shafqat Mahmood Malik, Saiqa Yusuf and Qaiser Mahmood Malik (the
“Respondents”).
The Court exercises its discretion to decide
Respondents’ Motion without oral argument.
L.Civ.R. 78.1.
See Fed.R.Civ.P. 78;
For the reasons to be discussed, Respondents
Motion is GRANTED, in part, and DENIED, in part.
I.
Background
Respondents seek the appointment of counsel to represent
them in this civil action involving the abduction and
concealment of the two minor children, M.A. and M.E., of Uzma
Shafqat (the “Petitioner”) and Respondent Shafqat Mahmood Malik.
Petitioner claims that the abduction and concealment of the two
minor children began on October 3, 2013, when Respondent Shafqat
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Mahmood Malik abducted the two minor children to Pakistan, while
Petitioner was in the hospital in London immediately after
giving birth to their newborn daughter.
Petitioner further
claims that Respondent Shafqat Mahmood Malik was assisted by
Respondent Saiqa Yusuf (the “Paternal Aunt”).
Petitioner
contends that the Paternal Aunt traveled with Respondent Shafqat
Mahmood Malik and the two minor children to Pakistan, and kept
the two minor children with her in Pakistan after Respondent
Shafqat Mahmood Malik returned to London.
Petitioner pursued relief in the High Court of Justice of
England and Wales (the “High Court”) in February of 2014.
On
September 5, 2014, after learning that Respondent Shafqat
Mahmood Malik had returned to the United Kingdom, Petitioner
filed an emergency request for ex parte relief with the High
Court.
The High Court issued an ex parte initial order
requiring Respondent Shafqat Mahmood Malik to return the two
minor children immediately from Pakistan to the United Kingdom,
prohibiting the two minor children from being removed from the
United Kingdom once returned.
On October 31, 2014, the High Court entered a final order
finding that the two minor children had been removed from the
United Kingdom by Respondent Shafqat Mahmood Malik without
Petitioner’s knowledge or consent on October 4, 2013, and that
the two minor children were habitual residents in the United
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Kingdom at the time of removal.
Further, the High Court found
that Respondent Shafqat Mahmood Malik had “repeatedly failed to
comply with orders of th[e] Court by failing to attend Court
hearings and has demonstrated a skillful avoidance of cooperation with the process.”
The High Court therefore ordered
Respondent Shafqat Mahmood Malik to cause the return of the two
minor children to England and Wales and that, once returned, the
two minor children were not to be removed from the jurisdiction
of England and Wales.
Moreover, the High Court prohibited
Respondent Shafqat Mahmood Malik from leaving the jurisdiction
of England and Wales.
Petitioner claims that, in November or December of 2014,
Respondent Shafqat Mahmood Malik brought the two minor children
to Watervliet, New York, with the assistance of the Paternal
Aunt and Respondent Qaiser Mahmood Malik, an uncle.
avers that in or about October 2015, Respondents
Petitioner
then brought
the two minor children to Blackwood, New Jersey.
This Court has jurisdiction over Petitioner’s wrongful
removal and retention claim.
See Hague Convention, Art. 16,
reprinted in 51 Fed. Reg. 10,495, at 10,500; 42 U.S.C. §
1160(b)(4).
The focus of this Court’s inquiry is not as it
typically is in a state custody case; rather it is the specific
claims and defenses under the Convention, namely whether a child
has been wrongfully removed to, or retained in, a country
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different from the child’s habitual residence and, if so,
whether any of the Convention’s defenses apply to bar the
child’s return to his habitual residence.
Hazbun Escaf v.
Rodriquez, 200 F.Supp. 2d 603, 610-11 (E.D. Va. 2002), aff’d sub
nom. Escaf v. Rodriguez, 52 Fed. Appx. 207 (4th Cir. 2002).
On October 28, 2015, this Court, upon Petitioners’
petition, as supplemented, entered an Order directing the United
States Marshal to take physical custody of the two minor
children currently held in the custody of Respondents.
The two
minor children were brought to the Courtroom on October 29,
2015, after Petitioner had arrived from London and met her two
minor children at their school.
custody to Petitioner.
The Court issued temporary
The Court also set the matter down for a
hearing the next day, October 30, 2015.
The next day, the Court held a hearing where all
Respondents appeared.
Thereafter, the Court issued an Order, in
relevant part (1) granting temporary custody of the two minor
children to Petitioner and (2) setting this matter down for a
merits hearing pursuant to 42 U.S.C. § 11601 et seq.
II.
Legal Standard
Motions for the appointment of legal counsel are governed
by 28 U.S.C. § 1915(e).
Under this statute a court may request
that an attorney represent an indigent plaintiff in a civil
action. The statute provides that:
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(1) [t]he court may request an attorney to
represent any person unable to afford
counsel. (2) Notwithstanding any filing fee,
or any portion thereof, that may have been
paid, the court shall dismiss the case at
any time if the court determines that--(A)
the allegation of poverty is untrue; or (B)
the action or appeal--(i) is frivolous or
malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks
monetary relief against a defendant who is
immune from such relief.
District Courts have broad discretion to request counsel for
indigent pro se litigants, but such appointment is a privilege,
not a statutory or constitutional right of the litigant.
Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011) (citation
omitted); Montgomery v. Pinchak, 294 F.2d 492, 498 (3d Cir.
2002).
The Court has analyzed the following factors:
(1) the plaintiff’s ability to present his
or her own case;
(2) the complexity of the legal issues;
(3) the degree to which factual
investigation will be necessary and the
ability of the plaintiff to pursue such
investigation;
(4) the amount a case is likely to turn on
credibility determinations;
(5) whether the case will require the
testimony of expert witnesses;
(6) whether the plaintiff can attain and
afford counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155-56, 157 n.5).
The Court determines that
the appointment of pro bono counsel for Respondent Shafqat
5
Mahmood Malik only is warranted.
The first factor requires courts to evaluate whether the
litigant is capable of presenting his or her own case.
Montgomery, 294 F.3d at 501.
This factor weighs against the
appointment of counsel where the litigant has the ability to
pursue his or her own case.
See Gordon v. Gonzalez, 232 Fed.
Appx. 153, 157 (3d Cir. 2007).
A litigant’s ability to present
his or her own case should be measured through an evaluation of
their literacy, education, ability to understand English, prior
work experience, and prior litigation experience.
F.3d at 156.
Tabron, 6
In Montgomery, the Third Circuit characterized
this factor as “[p]erhaps the most significant of Tabron’s postthreshold factors.” 294 F.3d at 501.
Based upon the Court’s
initial encounter with Respondents, the Court questions their
ability to fully present their own cases.
native language.
English is not their
While the Court was able to communicate with
the Respondents, there was a legitimate language barrier.
As
such, the first Tabron/Parham factor weighs in favor of the
appointment of counsel.
The second factor for consideration is the complexity of
the legal issues presented.
A court should be more inclined to
appoint counsel when the legal issues are complex.
See Tabron,
6 F.3d at 156 (“[W]here the law is not clear, it will often best
serve the ends of justice to have both sides of a difficult
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legal issue presented by those trained in legal analysis.”)
(quoting Maclin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981)).
Here, the case involves legal questions of varying complexity.
Initially, the Court notes that it is unclear why Respondents
Saiqa Yusuf and Qaiser Mahmood Malik remain parties in this
action.
While they, prior to this action, initially shared a
home with the two minor children, they do not appear to assert
or possess a legal right to retain custody.
To the extent these
two Respondents must remain parties because they were parties to
the proceeding in the United Kingdom, their lack of any
substantive involvement in the alleged wrongful retention apart
from co-habitating with Respondent Shafqat Mahmood Malik, the
father of the two minor children, renders their legal issues
much less complex.
On the other hand, Respondent Shafqat
Mahmood Malik may have legitimate defenses to a claim of
wrongful retention of his children.
Litigation of those claims
will require navigation of New Jersey, federal and international
law on an abbreviated schedule.
Therefore, the second
Tabron/Parham factor weighs in favor of the appointment of
counsel for Respondent Shafqat Mahmood Malik only.1
The third Tabron/Parham factor is the expected difficulty
of any factual investigation the case requires, and the
1
Indeed, the nature of their legal issues may be such that
counsel for Respondent Shafqat Mahmood Malik may be able to
represent the remaining two Respondents without conflict.
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litigant’s ability to conduct such investigation.
F.3d at 156.
Tabron, 6
Where the involved claims likely require extensive
discovery and adherence to complex discovery rules, this factor
may weigh in favor of appointing pro bono counsel.
Here, the
operative facts regarding the custody and status of the two
minor children are largely within the knowledge of the
Respondents and will not require extensive discovery to learn.
Accordingly, the Court finds the third Tabron/Parham factor
weighs against the appointment of counsel.
The fourth factor considers whether credibility is the
central issue in the case.
Dippolito v. U.S., C.A. No. 13-175
(RBK/JS), 2015 WL 1104813 at *3 (D.N.J. Mar. 11, 2015.
At this
time, the Court believes the proceeding, particularly as to
Respondent Shafqat Mahmood Malik, may involve an evaluation of
his credibility, particularly as he may argue he is entitled to
any pertinent affirmative defense.
Therefore, the Court finds
that the fourth Tabron/Parham factor weights in favor of
appointing counsel for Respondent Shafqat Mahmood Malik.
The fifth factor for consideration is the extent to which
expert testimony may be required.
Where a case will require
testimony from expert witnesses, the appointment of counsel may
be warranted.
Tabron, 6 F.3d at 156.
However, the Third
Circuit clarified that the need for expert testimony does not
merit the appointment of counsel in every case.
8
See Lasko v.
Watts, 373 Fed. Appx. 196, 202 (3d Cir. 2010).
Respondents have
not indicated that they will require expert testimony and the
Court sees no need for an expert at this time.
Thus, the Court
finds that the fifth Tabron/Parham factor weighs against the
appointment of counsel.
The final factor addressed by the Third Circuit in Tabron
and Parham is whether the litigant is capable of retaining
counsel.
Parham, 126 F.3d at 461.
In their motion, Respondents
assert that “they are either jobless or low income.” This
assertion is directly contradicted by what was represented to
the Court at the October 30, 2015, where Respondent Qaiser
Mahmood Malik asserted he works long days.
In any event, given
the urgency of this matter, the Court finds that Respondents may
not have sufficient time and resources to allow an attorney to
fully invest himself or herself into this matter.
As a result,
the Court finds that the sixth Tabron/Parham factor weighs in
favor of the appointment of counsel, particularly with regard to
Respondent Shafqat Mahmood Malik.
III. Conclusion
Because most Tabron/Parham factors weigh in favor of the
appointment of counsel, the Court grants Respondent Shafqat
Mahmood Malik’s Motion only.
Respondents Qaiser Mahmood Malik
and Saiqa Yusuf’s Motion for appointment of counsel is denied
without prejudice until certain issues may be resolved, to wit,
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whether they will remain as parties to this action and, if so,
whether counsel for Respondent Shafqat Mahmood Malik may also
represent them.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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