IGLESIAS v. BOROUGH OF CLIFFSIDE PARK PLANNING BOARD et al

Filing 26

Memorandum Opinion and Order denying application for Pro Bono Counsel. Signed by Judge William J. Martini on 6/10/14. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
EDITH IGLESIAS
12-CV-7612-WJM

Plaintiff,
v.
BOROUGH OF CLIFFSIDE PARK, et al.,

MEMORANDUM
OPINION & ORDER

Defendants

This matter comes before the Court on pro se Plaintiff Edith Iglesias’s
motion for appointment of pro bono counsel under 28 U.S.C. § 1915(e)(1). For the
reasons stated below, the Court will DENY the motion.
On January 19, 1999, Iglesias purchased a home located at 360 Gorge Road
in Cliffside Park, New Jersey. Apparently, in 2005 the zoning board of Cliffside
Park granted a variance allowing townhouses to be construed at 350 Gorge Road,
next door to Iglesias. At some point, Iglesias claims, Cliffside Park gave Iglesias’s
easement rights to the owners of a four-unit condominium located at 350 Gorge
Road. Iglesias alleges that the private construction on 350 Gorge Road made her
own driveway unsafe. She also alleges that Cliffside Park improperly assessed her
property taxes, and that Cliffside Park inspectors approved faulty construction on
her property so as to allow contractors to “cash out.”
On December 12, 2012, the day she filed her Complaint, Iglesias also filed
an application for pro bono counsel. ECF No. 2. The Court denied the application
because Iglesias had demonstrated an ability to perform the necessary factual
investigation and because Iglesias was receiving assistance in the case from her
daughter. ECF No. 4. The Court explained that it would be willing to revisit the
pro bono counsel issue at a later date.
On March 15, 2013, Defendants filed answers to the Complaint. ECF Nos.
7-8. On June 11, 2013, the Honorable Mark Falk issued a scheduling order
providing that discovery would end on September 11, 2013. ECF No. 13. Iglesias
requested an extension, and Judge Falk ordered that the discovery deadline would
be moved to October 18, 2013. ECF No. 15. On October 28, 2013, Judge Falk
again extended discovery, this time until December 20, 2013. ECF No. 17. On
January 6, 2014, Judge Falk again extended discovery, this time until February 20,
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so that Iglesias could have additional time to serve her expert report. ECF No. 18.
On February 25, 2014, after learning that Iglesias has recently served discovery
responses containing new facts and contentions, as well as an expert report that
relied on previously undisclosed material, Judge Falk again extended the discovery
deadline. ECF No. 20. Judge Falk ordered that expert reports be served by May
20, 2014, and that expert discovery be completed by June 20, 2014. On May 5,
2014, Defendants filed a letter informing Judge Falk that they would not be able to
meet the May 20, 2014 deadline because Iglesias was not permitting their expert to
inspect her property. ECF No. 22.
On May 12, 2014, and then again on May 21, 2014, Iglesias filed a second
application for pro bono counsel. ECF Nos. 23-24. In her application, Iglesias
explains that counsel for Defendants has been uncooperative during the discovery
phase. Iglesias represents that she has completed a fact investigation but she needs
an attorney “to have this case resolved.” Iglesias represents that she cannot afford
an attorney. Along with her application for pro bono counsel, Iglesias has
provided that Court with an expert report signed by Jon Brody of Appraisal
Consultants Corp. ECF No. 24-3. In his report, Brody writes:
While undertaking this assignment a number of legal related questions
arose between me and my client. I requested that my client retain
legal counsel to assist in some of my tasks. We approached an
attorney with a diverse practice and following extensive conversations
he elected not to get involved in this matter. Under the circumstances
of time and following a discussion with our client she elected to
proceed without my requested special counsel.
ECF No. 24-3 at 6 of 11. Brody concludes that from 2005, when the property at
350 Gorge Road was being constructed. However, Brody represents that he is
unsure whether 2005 is the proper date for determining damages under the law.
Finally, Brody suggests that Iglesias’s case resembles another case he was
involved in where a different plaintiff prevailed on a similar claim.
Besides from Brody’s report, Iglesias also attaches a letter from Engineering
and Land Planning Associates, Inc. concluding that that work performed at 350
Gorge Road violated an existing easement shared by Iglesias and the owner of 350
Gorge Road. That easement, the letter explains, was recorded in 1958 and granted
share egress over a driveway between single family homes. The letter explains
that the easement was necessary to give a reasonably sloped driveway on both
properties. The letter also explains that the easement did not provide that the
driveway could be expanded or regraded. Yet, the letter explains that “[t]he
regarding has . . . made it difficult, if not impossible, to use [Iglesias’s] garage . . .
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.” The letter states that the construction at 360 Gorge Road has reduced Iglesias’s
easement rights and that it has regarded to her driveway to an incline of 16%,
which is “beyond acceptable engineering practice.” Finally, the letter states that
“if Borough approval was granted for this driveway, the approval was granted both
in violation of the Borough’s own ordinances and with disregard for the rights of
Ms. Iglesias as specified in the easement.” ECF No. 24-4.
Section 1915(e)(1) provides that “[t]he court may request an attorney to
represent any person unable to afford counsel.” District courts have “broad
discretion” to decide whether requesting counsel is appropriate, may request
counsel at any point in the litigation, and may do so sua sponte. Montgomery v.
Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147,
153 (3d Cir. 1993)). As an initial matter, the Court must first determine if the party
seeking counsel has an underlying case with arguable merit in fact and law. Id. at
498-99. Once the claim has passed that threshold, the Court then considers the
following list of criteria to assess whether requesting counsel would be
appropriate: (1) the plaintiff’s ability to present his or her own case; (2) the
difficulty of the particular legal issues; (3) the degree to which factual investigation
will be necessary and the ability of the plaintiff to pursue investigation; (4) the
plaintiff’s capacity to retain counsel on his or her own behalf; (5) the extent to
which a case is likely to turn on credibility determinations, and (6) whether the
case will require testimony from expert witnesses. Id. at 499. The list is nonexhaustive, and the Court may consider other facts or factors it determines are
important or helpful. Id.
It appears that Iglesias lacks the legal understanding of condemnation law to
answer questions relating to damages and potentially other issues. And it is plain
that this case will require testimony from expert witnesses. However, it seems that
Iglesias has been able, on her own, to identify and hire such experts. Most
importantly for purposes of the Court’s analysis, it is unclear why Iglesias has been
unable to obtain counsel given that her experts apparently believe she has a
meritorious claim. Iglesias maintains she cannot afford an attorney, but she has
apparently been able to hire experts. Save for mentioning that she spoke with a
lawyer who declined to take her case, Iglesias does not explain what other efforts,
if any, she has undertaken to retain counsel.
Finally, while Iglesias believes she needs a lawyer because opposing counsel
has been shirking discovery obligations, the Court finds that Iglesias can, on her
own, bring to the Court’s attention any problems she is having with the discovery
process. Considering all of the facts and circumstances, the Court finds that it is
not proper to grant Iglesias’s application for a pro bono attorney at this time.
For the foregoing reasons and for good cause shown;
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IT IS on this 10th day of June 2014, hereby,
ORDERED that the Iglesias’s application for pro bono counsel, filed on the
docket at ECF Nos. 23-24, is DENIED. The Court is willing to entertain a
subsequent motion for pro bono counsel at a later stage of this case.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

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