KONGTCHEU v. CONSTABLE
Filing
27
MEMORANDUM OPINION AND ORDER that Plaintiff's application 26 for appointment of pro bono counsel is DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge James B. Clark on 10/17/14. (gmd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIBERT F. KONGTCHEU,
Plaintiff,
v.
RICHARD E. CONSTABLE, III,
Defendant.
:
:
:
:
:
:
:
:
:
:
Civil Action No. 12-6872 (CCC)
MEMORANDUM OPINION
AND ORDER
This matter having been opened to the Court upon application by pro se Plaintiff Philibert
F. Kongtcheu (“Plaintiff”) seeking the appointment of pro bono counsel pursuant to 28 U.S.C. §
1915(e) [Docket Entry No. 26]; and Plaintiff arguing that counsel should be appointed because
he is “unable to timely and competently prosecute [this] case as a pro se litigant facing other
urgent commitments” Id.; and Plaintiff further arguing that he has already been granted leave to
proceed in forma pauperis by the District Court; and Plaintiff further arguing that he “lack[s] the
ability to present an effective case without an attorney” Id.; and Plaintiff further arguing that he
“lack[s] familiarity with the rules of evidence and discovery needed to translate understanding of
the law into presentation of the proofs” Id.; and Plaintiff further arguing that to date he has been
unable to find an attorney to represent him in this matter;
and the Court finding that pursuant to 28 U.S.C. §1915(e)(1), “[t]he court may request an
attorney to represent any person unable to afford counsel[;]” and the Court further finding that
there is no right to counsel in a civil case (Tabron v. Grace, 6F.3d 147, 153-54 (3d Cir. 1993);
Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997)); and the Court further finding that
under Tabron in deciding whether counsel should be appointed, the Court first considers whether
a claim or defense has “arguable merit in fact and law,” and if it does, the Court then considers
additional factors, which include: (1) the applicant’s ability to present his or her case; (2) the
complexity of the legal issues presented; (3) the degree to which factual investigation is required
and the ability of the applicant to pursue such investigation; (4) whether credibility
determinations will play a significant role in the resolution of the applicant’s claims’ (5) whether
the case will require testimony from expert witnesses; and (6) whether the applicant can afford
counsel on his or her own behalf (Tabron, 6 F.3d at 155-157); and the Court further finding that
other factors such as “the lack of funding to pay appointed counsel, the limited supply of
competent lawyers willing to do pro bono work, and the value of lawyers’ time” must also be
considered when deciding an application for the appointment of pro bono counsel (Jenkins v.
D’Amico, Civ. Action No. 06-2027, 2006 WL 2465414, at *1 (D.N.J. Aug. 22, 2006) (citing
Tabron, 6 F.3d at 157-58));
and the Court having considered Plaintiff’s application; and the Court noting that
Plaintiff’s complaint is currently subject to Defendant’s motion for judgment on the pleadings or,
in the alternative, summary judgment, see Docket Entry No. 21; and the Court further noting
that, in light of this motion, it would be improper for the Court to make any determinations as to
whether Plaintiff’s complaint has “arguable merit in fact and law”; and the Court further noting
that Plaintiff has not filed an opposition to Defendant’s motion, despite being granted an
extension of the deadline by 120 days; and the Court further noting that, to the extent Plaintiff is
seeking pro bono counsel for the purpose of filing such an opposition, that request would be
denied as untimely, as the Court made it clear in its Order that “no further extensions shall be
given” see Docket Entry No. 24; and the Court further noting that Plaintiff does not claim that
the legal issues will be complex, that experts will be required, or that credibility determinations
2
2
will play a significant role; and the Court further noting that Plaintiff does not elaborate on the
“urgent commitments” which are hindering his ability to litigate this case; and the Court noting
that, although Plaintiff has been granted in forma pauperis status and is unable to afford an
attorney, this is only a single factor for consideration;
and the Court finding that, on balance, when the Tabron factors are considered in
conjunction with the lack of funding to pay appointed counsel, the limited supply of competent
lawyers willing to do pro bono work, and the value of lawyers’ time (see Jenkins, Civ. Action
No 06-2027, 2006 WL 2465414, at *1 (D.N.J. Aug. 22, 2006) (citing Tabron, 6 F.3d at 157-58),
they do no warrant the appointment of counsel at this time; and the Court having considered this
matter pursuant to FED.R.CIV.P. 78, and for good cause shown,
IT IS on this 17th day of October, 2014,
ORDERED that Plaintiff’s application for the appointment of pro bono counsel is
DENIED WITHOUT PREJUDICE.
s/ James B. Clark, III
HONORABLE JAMES B. CLARK, III
UNITED STATES MAGISTRATE JUDGE
3
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?