Pushkin v. Nussbaum et al

Filing 327

Letter Opinion-Order denying w/out prejudice 322 MOTION to Appoint Pro Bono filed by DAVID B. PUSHKIN. Plaintiff is directed to file his reply brief in support of his Motion to File a Fourth Amended Complaint, D.E. 288, by June 17, 2016. Signed by Magistrate Judge Michael A. Hammer on 5/4/16. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of

Martin Luther King Jr. Federal
Bldg. & U.S. Courthouse
50 Walnut Street, Room 2042
Newark, NJ 07102
[phone]

Michael A. Hammer
United States Magistrate Judge

May 4, 2016

LETTER OPINION & ORDER
Counsel of record
RE:

David B. Pushkin v. Beth R. Nussbaum, et al.
Civil Action No. 12-324 (ES)

Dear Litigants:
Presently before the Court is Plaintiff’s March 30, 2016 application for pro bono counsel
under 28 U.S.C. § 1915(d). Appl. for Pro Bono Counsel, D.E. 322. For the reasons set forth
below, Plaintiff’s request for the appointment of pro bono counsel is denied.
Background
On November 30, 2010, Plaintiff filed a pro se action against “his ex-wife, her former
employer, Plaintiff's and his then-wife's former health insurance carrier, the chief counsel of that
health insurer, Plaintiff's automobile insurer various other people or entities related to that
insurer--~, a third party administrator of personal injury protection benefits, employees of the
insurer--as well as the lawyer, and the law firm with which that lawyer is associated, who
represented Plaintiff's ex-wife during Plaintiff's and his ex-wife's divorce” in the United States
District Court for the Southern District of New York, alleging that following spinal surgery in
March 2007, Defendants, inter alia, interfered with his recovery, disability status, eligibility for
extended Social Security Disability benefits, eligibility for COBRA Health Insurance, and
violated his rights under the Americans with Disabilities Act. Compl., D.E. 2; Memorandum
Order, Jan. 9, 2012, D.E. 165. Plaintiff was granted in forma pauperis status on December 29,
2010. Order, D.E. 4. On August 12, 2011, Plaintiff filed a Motion for Default Judgment against
Defendants GEICO, Lisa Ardon, Gina Fuge, Dominic Spaventa, and Paul Feldman. Motion for
Default Judgment, Aug. 12, 2011, D.E. 149. The Court denied Plaintiff’s Motion on November
22, 2011. Order Adopting Report and Recommendation, Nov. 22, 2011, D.E. 162.
On January 9, 2012, following a motion to transfer venue by some Defendants, Plaintiff’s
action was transferred to this Court pursuant to 28 U.S.C. § 1406(a). Memorandum Order, D.E.
165. During the pendency of this matter, Plaintiff has filed, or attempted to file, four Amended
Complaints, D.E. 13, 232, 275 and 288, all of which have been permitted with the exception of the

Fourth Amended Complaint which remains pending before the Court and which was placed in a
holding pattern. Defendants moved to dismiss the latest proposed Amended Complaint, D.E. 288.
See Defendants’ Motions in Opposition to Plaintiff’s Motion to Amend/Correct, D.E. 293, 298,
300, 302, 303 and 304. Defendants’ Motions have never been responded to by Plaintiff due to his
alleged medical conditions and physical limitations. However, Plaintiff has filed at least four
requests for adjournments of his Motion to Amend/Defendants’ Motions to Dismiss. D.E. 299,
305, 307 and 309.
On August 26, 2011, Plaintiff applied for pro bono counsel, due to his neurological
impairment following a spinal injury in 2006. Application for the Court to Request Counsel, Aug.
26, 2011, D.E. 151. His request was denied without prejudice. Order, Nov. 4, 2011, D.E. 153.
On April 10, 2014, Plaintiff applied for pro bono counsel, once again claiming that he required the
appointment of counsel due to his neurological impairment following a spinal injury in 2006.
Application for Pro Bono Counsel, Apr. 10, 2014, D.E. 271. The Honorable Kevin McNulty
terminated Plaintiff’s Application on April 15, 2015 when he granted Defendants’ motion to
dismiss Plaintiff’s Second Amended Complaint, terminating this case without prejudice. D.E. 274.
On January 19, 2016, this Court entered an Order, directing Plaintiff to notify the Court by March
24, 2016 whether he had obtained counsel or planned to file an application for pro bono counsel.
On March 30, 2016, Plaintiff filed the instant application for pro bono counsel. See Appl. for Pro
Bono Counsel, D.E. 322. In his application, Plaintiff argues he is entitled to pro bono counsel
because his “level of neurological impairment and disability has profoundly diminished his gross
neuromuscular and fine motor skills” and he has been unable to obtain an attorney to represent
him. [D.E. 322].
During the six years that this case has been pending, Plaintiff has filed no less than 60
documents on the Court’s docket. All of these submissions of well well-written and well-reasoned.
They have all been submitted in timely fashion. The submissions have ranged from letters to the
Court advising of a change of address, as required by Court rules, to letter requests seeking
adjournments, both faxed to the Court and filed on the Court’s docket, with supporting reasons
and documentation, to objections to Reports and Recommendations, to complicated and thorough
motions and responses to motions, again meeting Court deadlines and complying with court rules
in length and nature. Plaintiff has made such complicated motions as motions for default judgment
and for accommodations. Plaintiff has always competently corresponded to the Court, even
advising the Court in a timely manner when his medical condition would require his absence. See
Civ, No. 12-234(KM), Pushkin v. Nussbaum.
Discussion
In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). District courts,
however, have broad discretion to determine whether appointment of counsel is appropriate
under 28 U.S.C. § 1915(e). Montgomery v. Pinchack, 294 F.3d 492, 498 (3d Cir. 2002) (citing
Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). Appointment of counsel may be made at any
point in the litigation, including sua sponte by the Court. Montgomery, 294 F.3d at 498 (citing
Tabron, 6 F.3d at 156).

In the United States Court of Appeals for the Third Circuit, a court considers the
framework established in Tabron. Montgomery, 294 F.3d at 498-99. Under the Tabron
framework, the Court must first assess “whether the claimant’s case has some arguable merit in
fact and law.” Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155). If the applicant’s
claim has some merit, the Court considers 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, 126 F.3d at 457-58 (citing Tabron, 6 F.3d at 155-56, 157 n.5). This list is not
exhaustive, but provides guideposts for the Court. Montgomery, 294 F.3d at 499 (citing Parham,
126 F.3d at 457). A court’s decision to appoint counsel “must be made on a case-by-case basis.”
Tabron, 6 F.3d at 157-58. Also, the Court of Appeals for the Third Circuit has stated that “courts
should exercise care in appointing counsel because volunteer lawyer time is a previous
commodity and should not be wasted on frivolous cases.” Montgomery, 294 294 F.3d at 499
(Parham, 126 F.3d at 458).
Here, with respect to the first Tabron prong, the Court assumes that Plaintiff’s claim has
merit for the purposes of this application only. Nevertheless, consideration of the Tabron factors
does not demonstrate that appointment of counsel is warranted at this time.
First, Plaintiff appears to be able to present his case. When considering ability to present
a case, courts generally consider a plaintiff’s “education, literacy, prior work experience, and
prior litigation experience.” Tabron, 6 F.3d at 156. Based upon the present record, Plaintiff has
demonstrated a basic understanding of the actions he should take in furtherance of his claim. A
review of Plaintiff’s Complaint indicates that he provided a detailed explanation of his cause of
action, which demonstrates his ability to pursue his claim. See Hill v. Davidson, 844 F. Supp.
237, 238 (E.D. Pa. 1994) (plaintiff demonstrated his ability to write through his filings with the
court and through written grievances he filed with the prison system). Plaintiff adequately
articulated the factual circumstances, even including specific dates, surrounding the alleged acts
of which he complains. In addition and as outlined above, Plaintiff has submitted numerous
letters, motions and various submissions to the Court. Plaintiff’s submissions to the Court have
always been thorough, well-written, well-reasoned and filed in a timely manner. When Plaintiff
has been unable to comply with deadlines in a timely manner, he has been more than competent
in alerting the Court to his issues and need for additional time. These communications to the
Court evidence Plaintiff’s ability to review the case filings and to pursue his claim. Based upon
the allegations and the facts from which they arise, and because “the factual and legal issues
‘have not been tested or developed by the general course of litigation’” in a way that shows any
level of complexity, Plaintiff has not demonstrated an inability to present his case. Burns v.
Taylor, Civ. No. 08-4234, 2008 U.S. Dist. LEXIS 83809, at *3 (D.N.J. Oct. 9, 2008) (quoting

Chatterjee v. Philadelphia Federation of Teachers, 2000 U.S. Dist. LEXIS 10278, at *1 (E.D.
Pa. July 18, 2000)). For these reasons, this factor weighs against appointment of counsel.
Second, Plaintiff’s claims do not involve complex legal issues. Complexity supports
appointment “where the law is not clear, [as] it will often best serve the ends of justice to have
both sides of a difficult legal issue presented by those trained in legal analysis.” Tabron, 6 F.3d
at 156 (quoting Macklin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981)); accord Montgomery, 294
F.3d at 502. Courts also consider “the proof going towards the ultimate issue and the discovery
issues involved.” Parham, 126 F.3d at 459; see also Montgomery, 294 F.3d at 502-03 (finding
appointment appropriate when, despite simple legal issues, discovery and presentation
difficulties compromised plaintiff’s case). Here, appointment of counsel is not warranted
because the factual and legal issues involved in the case are not ultimately complicated. Plaintiff
alleges violations of his rights under the Americans with Disabilities Act, as well as interference
with his disability status, his eligibility for extended Social Security Disability benefits, and his
eligibility for COBRA Health Insurance. See Compl., D.E. 2. However, there is no indication
that his claim presents a complex legal issue. That is, it does not appear that Plaintiff’s legal
issue is beyond his comprehension or analytical capacity. Indeed, Plaintiff provides no
explanation in his pro bono application as to why his claims contain complex legal issues. See
Appl. for Pro Bono Counsel, D.E. 322. Accordingly, the second Tabron factor weighs against
Plaintiff because it does not appear, at this time, that his claims present complex legal issues.
Third, there is no indication that Plaintiff lacks the ability to conduct a factual
investigation without the assistance of counsel. Nothing suggests that discovery in this case is
complicated or unduly burdensome. Cf. Tabron, 6 F.3d at 156 (considering the extent that
confined parties may face problem when confronted with extensive discovery and compliance
with complex discovery rules). The claims appear to involve a relatively discreet set of facts,
many of which Plaintiff presumably has personal knowledge, or at a minimum, is equipped to
investigate. Additionally, while the Court is sympathetic to Plaintiff’s physical limitations
brought on by an accident in December 2014, this case has been litigated for six years, four of
which were before the accident, and there is no reason why Plaintiff should not have in his
possession all of the factual discovery he requires in this matter. Thus, the third Tabron factor
also weighs against appointment of counsel.
Fourth, it is premature for the Court to conclude that this case will turn on credibility
determinations. Because “it is difficult to imagine” a case where credibility is not important, the
Court of Appeals for the Third Circuit has specified that “when considering this factor, courts
should determine whether the case [is] solely a swearing contest.” Parham, 126 F.3d at 460. At
this point in time, the extent to which this case will rest on credibility determinations is not yet
apparent. Accordingly, this factor militates neither in favor nor against appointing counsel.
Fifth, there is no indication that any expert testimony will be required at trial. Thus, the
fifth Tabron favor does not favor appointment.
Sixth, while the Court granted Plaintiff in forma pauperis status, and Plaintiff has
detailed his efforts to obtain counsel on his own, that showing alone does not support
appointment of pro bono counsel. See Clinton v. Jersey City Police Dep’t, Civ. No. 07-5686,

2009 WL 2230938, at *1 n.4 (D.N.J. July 24, 2009) (“While indigence is a prerequisite for the
appointment of counsel, indigence alone does not warrant appointment of counsel absent
satisfying other Tabron factors.”).
This record does not meet most of the Tabron factors, and, therefore, the Court finds that
appointment of pro bono counsel is inappropriate at this time. Cf. Parham, 126 F.3d at 461
(finding appointment appropriate where most factors are met). For all the reasons set forth
above, the Court denies Plaintiff’s application for the appointment of pro bono counsel without
prejudice. 1
Conclusion
A balancing of the factors set forth above does not weigh in favor of granting Plaintiff’s
request for counsel at this time. Therefore, Plaintiff’s application of the appointment of pro bono
counsel [D.E. 322] is denied without prejudice. Plaintiff is directed to file his reply brief in
support of his Motion to File a Fourth Amended Complaint, D.E. 288, by June 17, 2016.

So Ordered,
/s Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

1

While the Court is sympathetic to Plaintiff’s medical conditions and physical
limitations, the Court simply cannot appoint counsel in every civil case. First, Plaintiff has not
demonstrated that the infirmities somehow preclude him from litigating this case. In addition,
appointing counsel in a case as old as this one presents additional problems not encountered in
most cases. For example, the time it would take for the Court to find an attorney able to take
Plaintiff’s case and then get up to speed on an over six year old case would simply serve to age
this case even further. It is time for this case to move to a resolution of this case in as swift a
manner as possible, taking into account Plaintiff’s issues.