DEFAZIO v. JPAY, INC.

Filing 23

Letter Opinion-Order denying Motion for Pro Bono Counsel, Motions terminated: 8 MOTION to Appoint Pro Bono filed by ANTHONY DEFAZIO. Signed by Magistrate Judge Steven C. Mannion on 2/23/18. (byl)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of

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

STEVEN C. MANNION
United States Magistrate Judge

February 23, 2018

LETTER OPINION-ORDER

Re:

D.E. 8, Motion to Appoint Pro Bono Counsel
DeFazio v. JPAY, Inc.
Civil Action No. 17-cv-10212 (KM)(SCM)

Dear Litigants:
This matter comes before the Court upon review of Plaintiff Anthony DeFazio’s (“Mr.
DeFazio”) Motion to Appoint Pro Bono Counsel.1 The Court has reviewed Mr. DeFazio’s Motion
and for the reasons set forth herein it is denied.
District courts are granted broad discretion to appoint attorneys to represent indigent civil
litigants,2 but civil litigants possess neither a constitutional nor a statutory right to appointed
counsel.3 Moreover, though Congress has empowered district courts to “request” counsel for civil
litigants, courts cannot “require” an unwilling attorney to serve as counsel.4
This Court must therefore “take note of the significant practical restraints on the district
courts’ ability to appoint counsel: . . . the lack of funding to pay appointed counsel; and the limited

1

(ECF Docket Entry No. (“D.E.”) 8, Pl.’s Mot.).

2

28 U.S.C. § 1915 (d), (e)(1),

3

Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002) (citing Parham v. Johnson, 126 F.3d
454, 456-67 (3d Cir. 1997)).
4

Id. (citing 28 U.S.C. § 1915 (e)(1)); see also Christy v. Robinson, 216 F. Supp. 2d 398, 406 n.
16 (D.N.J. 2002) (citing Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490
U.S. 296, 301-02 (1989)).

supply of competent lawyers who are willing to undertake such representation without
compensation.”5
When evaluating a request for the appointment of pro bono counsel, a district court should
first determine whether the plaintiff’s claim “has arguable merit in fact and law.”6 If the court first
finds such merit, then it must go on to weigh a series of considerations known as the Tabron postthreshold factors.7
In this instance, the Court finds that Mr. DeFazio’s claim does not have arguable merit in
law. Mr. DeFazio is trying to bring a class action on behalf of himself and approximately twentytwo thousand of his fellow prisoners.8 However, “[e]very court that has considered the issue has
held that a prisoner proceeding pro se is inadequate to represent the interests of his fellow
inmates in a class action.”9 Though Mr. DeFazio “may…continue individually to pursue his
claims[,]” his individual claims would not meet the minimum amount in controversy in order to
invoke this Court’s diversity jurisdiction,10 which Mr. DeFazio would be required to invoke in
order to bring his state claims.11
Since Mr. DeFazio may not maintain this case as a class action, and the Court would lack
subject matter jurisdiction if he were to maintain it individually, the Court finds that Mr.
DeFazio’s claim does not have “arguable merit in fact and in law.”12 It therefore need not
proceed to weigh the Tabron factors, and Mr. DeFazio’s Motion is denied.

5

Tabron v. Grace, 6 F.3d 147, 157 (3d Cir. 1993).

6

Id. at 155.

7

See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).

8

(D.E. 3, Am. Compl., ¶¶ 2-3).

9

Caputo v. Fauver, 800 F. Supp. 168, 170 (D.N.J. 1992), aff'd, 995 F.2d 216 (3d Cir. 1993).

28 U.S.C. § 1332(a) (“The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs[.]”). The Complaint seeks punitive damages of either $5,000 or $6,000 per member of the
ostensible class, as well as a refund to each ostensible class member of the $119.99 purchase
price of the tablets sold by the defendant. (See D.E. 3, Am. Compl., ¶ 15, p. 11).
10

11

(See D.E. 3, Am. Compl., ¶¶ 31, 33, 35) (alleging violations of the New Jersey Consumer
Fraud Act).
12

Tabron, 6 F.3d at 155.
2

The Court notes that the District Court is currently considering a pending motion to
dismiss.13 Should the District Court reach a different conclusion as to subject matter jurisdiction
in this case, then the Court may reconsider Mr. DeFazio’s application.
The Clerk of Court shall mail a copy of this order to Mr. DeFazio.
IT SO ORDERED.

2/23/2018 12:54:18 PM

Original: Clerk of the Court
Hon. Kevin McNulty, U.S.D.J.
cc: All parties
Anthony DeFazio
302985 / 573351B
Northern State Prison
168 Frontage Road
PO Box #2300
Newark, NJ 07114
Pro Se

13

(D.E. 17, Mot. to Dismiss).
3