DAYS INNS WORLDWIDE, INC. v. PATEL

Filing 13

Memorandum Opinion and Order denying application for Pro Bono Counsel for GHANSHYAM PATEL. Deft's time to answer is extended until 1/31/14. Signed by Magistrate Judge James B. Clark on 1/8/14. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAYS INNS WORLDWIDE, INC.,
Plaintiff,
v.
GHANSHYAM PATEL,
Defendant.

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Civil Action No. 13-5901 (FSH)

MEMORANDUM OPINION
AND ORDER

This matter having been opened to the Court upon letter by pro se Defendant Ghanshyam
Patel (“Defendant”) making a second request for the appointment of pro bono counsel, filed on or
about December 26, 2013 [Docket Entry No. 10]; and Defendant arguing that counsel should be
appointed because the business underlying the instant action is in financial trouble and he cannot
afford an attorney; and Defendant having provided the tax returns 1 for 2010 through 2012 as
evidence of his business’s financial status; and Defendant having also requested additional time to
address the case against him;
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

1 See Docket Entry No. 11. The Clerk’s Office has placed these documents under seal as they contain sensitive
private information. The Court reminds Defendant that any future documentation submitted should be redacted to
remove personal information such as social security numbers and dates of birth in accordance with Fed.R.Civ.P. 5.2.

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 Defendant’s new application; and the Court noting that
this case is still in the very early stages of litigation, and that no discovery has been conducted nor
has Defendant’s ability to prosecute his case been tested; in fact, Defendant has yet to answer the
Complaint and in the instant application requests additional time to do so [see Docket Entry No.
10]; and the Court further noting that while Defendant has provided the tax returns for the
underlying franchise business, he has not provided his own financial records nor does the Court
have any indication he has sought in forma pauperis status; and the Court noting that even
considering his inability to afford counsel, it is only a single factor for consideration; and the Court
further 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 noting that Defendant’s time to answer, move, or otherwise respond to the
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Complaint expired on December 30, 2013 [Docket Entry No. 9] and that Defendant has not yet
answered or otherwise moved; and the Court noting that Defendant renewed his request for
counsel and asked for additional time on or about December 26, 2013, prior to the expiration of his
time answer; and the Court finding good cause to extend Defendant’s time to answer until January
31, 2014; and further the Court reminds Defendant that his obligation to move forward and defend
the action are separate from any appointment of counsel, and that should he wish to continue with
this action at this time, he must find counsel independently or proceed pro se; failure to do either
will risk default being entered against him;
and the Court having considered this matter pursuant to Fed.R.Civ.P. 78, and for good
cause shown,
IT IS on this 8th day of January, 2014,
ORDERED that Defendant’s application for the appointment of pro bono counsel is
DENIED WITHOUT PREJUDICE; and it is further
ORDERED that Defendant’s time to answer, move, or otherwise reply is extended until
January 31, 2014.
s/ James B. Clark, III
JAMES B. CLARK, III
United States Magistrate Judge

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