ANDREWS v. WHITTAKER
LETTER OPINION & ORDER denying 56 Motion to Appoint Pro Bono, etc. Signed by Magistrate Judge Michael A. Hammer on 3/9/17. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Martin Luther King, Jr. Federal Bldg.
Michael A. Hammer
& U.S. Courthouse
50 Walnut Street, Room 2042
Newark, NJ 07102
United States Magistrate Judge
March 9, 2017
LETTER OPINION & ORDER
Andrews v. Whittaker
Civil Action No.: 13-4812 (ES)
Presently before the Court is Plaintiff’s Application for Pro Bono Counsel under 28
U.S.C § 1915(e)(1). See Motion for Pro Bono Counsel, February 17, 2017, D.E. 56. For the
reasons set forth below, Plaintiff’s request is denied.
On August 12, 2013, Plaintiff filed suit against his former employer, Defendant Joan E.
Whittaker (“Defendant”), alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”). See Compl., Aug. 12, 2013, D.E. 1. Plaintiff, who was a
security officer at the Irvington Public Library, alleges that in September 2012, Defendant asked
whether he could work every other Saturday. Id. at 3. Plaintiff allegedly explained that he was
unable to do so due because of obligations related to the care of his disabled daughter. Id.
Shortly thereafter, Plaintiff alleges that, without explanation, Defendant terminated his
employment. Id. Plaintiff further claims that his termination constituted discrimination “on the
basis of [his] sex (male) and unlawful retaliation, in violation of Title VII of the Civil Rights Act
of 1964, as amended.” See Exh. 1 to Compl., Aug. 12, 2013, D.E. 1-1.
Plaintiff initially filed an application for pro bono counsel with his Complaint in August
2013. See App. for Pro Bono Counsel., Aug. 12, 2013, D.E. 2. On September 23, 2013, the
Court denied Plaintiff’s application without prejudice after deciding that Plaintiff had not met the
required factors under Tabron v. Grace. See 6 F.3d 147, 153 (3d Cir. 1993); see also Opinion,
Sept. 23, 2013, D.E. 6. On September 15, 2015, the Court again denied an application for pro
bono counsel by Plaintiff, finding that Plaintiff had failed to satisfy the Tabron factors. Letter
Opinion and Order, Sept. 15, 2015, D.E. 31. Plaintiff moves again for the appointment of pro
bono counsel because he claims he needs an attorney to understand Defendant’s Summary
Judgment Motion. Motion to Appoint Pro Bono, Feb. 17, 2017, D.E. 56.
In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel. See 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). See 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.
In the Third Circuit, the Court considers the framework established in Tabron v. Grace.
Id. 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.” Id. 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 a guidepost 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-bycase basis.” Tabron, 6 F.3d at 157–58. In addition, the Court of Appeals for the Third Circuit
has stated that courts should “exercise care in appointing counsel because volunteer lawyer time
is a precious commodity and should not be wasted on frivolous cases.” Montgomery, 294 F.3d
at 499. Here, for the purposes of deciding this motion, the Court assumes that Plaintiff’s claims
have merit. However, upon consideration of Plaintiff’s submission, the Court concludes that
appointment of counsel is unwarranted at this time.
First, Plaintiff seems able to present his case. When considering a party’s ability to
present his or her case, courts generally analyze a party’s “education, literacy, prior work
experience, and prior litigation experience.” Tabron, 6 F.3d at 156. Here, while Plaintiff has not
indicated his educational background, or his prior litigation experience. A review of Plaintiff’s
submissions to the Court, however, indicates that he can present the essential facts of his case.
For example, Plaintiff adequately articulated the factual circumstances surrounding the alleged
employment discrimination that forms the basis of his Complaint. See generally Compl., Aug.
12, 2013, D.E. 1. Indeed, Plaintiff provided certain dates and facts that may be relevant to his
discrimination claim. After considering all the above, the Court concludes that this factor weighs
Second, Plaintiff’s claims do not involve complex legal issues. The Third Circuit has
explained that, “where the law is not clear, it will often best serve the ends of justice to have both
sides of a legal issue presented by those trained in legal analysis.” Tabron 6 F.3d at 156. Here,
Plaintiff presents a standard employment discrimination case. The factual circumstances of the
Complaint are straightforward, and Plaintiff has made no indication that presentation of this case
will be particularly difficult or complex. See Bondarenko v. Hackensack Univ. Med. Ctr., No.
07-3753, 2009 WL 2905373, at *3 (D.N.J. Sept. 4, 2009) (denying pro bono counsel after
concluding that “plaintiff's factual claims are easy to understand, and the legal issues involved
are straightforward.”). Thus, the second Tabron factor weighs against Plaintiff.
Third, “where claims are likely to require extensive discovery and compliance with
discovery rules, appointment of counsel may be warranted.” Tabron 6 F.3d at 156 (citing Rayes
v. Johnson, 969 F.2d 700, 703 (8th Cir. 1992)). Here, however, there is no indication that
Plaintiff lacks the ability to conduct a factual investigation without the assistance of counsel.
The claims appear to involve a dispute concerning Plaintiff’s alleged wrongful termination. In
other words, the scope of this case concerns a narrow set of facts, which Plaintiff knows about
since these facts form the basis of his Complaint. For this reason, the third Tabron factor weighs
Fourth, the Court considers whether a case will turn on credibility determinations in the
appointment of counsel since “it is more likely that the truth will be exposed where both sides
are represented by those trained in the presentation of evidence and in cross examination.”
Abulkhair v. U.S. Postal Serv., No. 13-7796, 2014 WL 1607379, at *4 (D.N.J. Apr. 22, 2014).
Because most cases will turn on credibility determinations, the Third Circuit requires that courts
decide whether “the case is solely a swearing contest.” Montgomery, 294 F.3d. 492, 505 (3d Cir.
2002) (citing Parham, 126 F.3d at 460). Plaintiff in this case alleges that Defendant terminated
him because of his gender, and for his inability to work on certain Saturdays. It is possible that
this case may be a he said/she said type of case and that it turns on credibility determinations.
However, that is unclear at this point, where Plaintiff seeks counsel not for trial, but to respond to
Defendant’s Summary Judgment motion. As a result, this factor weighs neither for nor against
the appointment of counsel. See, e.g., Thrower v. New Jersey Dep’t of Corr., No. 07-3434, 2007
WL 3376717, *4 (D.N.J. Nov. 7, 2007) (concluding the fourth Tabron factor was neutral where
even though case would involve “conflicting statements over relevant facts” because it was “not
yet apparent whether this case will be a swearing contest.”).
The fifth factor is whether the case will require expert testimony. This appears to be an
employment discrimination claim with a narrow set of important facts and dates at issue. As a
result, and in the absence of contrary proof, the Court is not convinced that there will be expert
testimony in this litigation. Therefore, this Tabron factor weighs against Plaintiff.
Finally, the Court notes that Plaintiff is indigent and is unable to afford or retain counsel.
This factor weighs in favor of Plaintiff, although without satisfaction of any other Tabron factors,
this alone is not enough to warrant the appointment of counsel. See Thrower v. New Jersey Dep’t
of Corr., No. 07-3434, 2007 WL 3376717, *4 (D.N.J. Nov. 7, 2007) (“Although indigence is a
prerequisite for appointment of counsel, it does not alone warrant the appointment of counsel
without satisfying the other Tabron factors.”).
For the reasons set forth above, the Court denies Plaintiff’s application for pro bono
s/ Michael A. Hammer___________________
UNITED STATES MAGISTRATE JUDGE
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