RUALES v. SPENCER SAVINGS BANK
Filing
71
LETTER OPINION AND ORDER denying without prejudice 65 Plaintiff's Motion to Appoint Pro Bono; etc. Signed by Magistrate Judge Michael A. Hammer on 12/3/2020. (sm)
Case 2:18-cv-09192-KM-MAH Document 71 Filed 12/03/20 Page 1 of 4 PageID: 409
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of
Martin Luther King Jr. Federal
Bldg. & U.S. Courthouse
50 Walnut Street, Room 2042
Newark, NJ 07102
(973) 776-7858
Michael A. Hammer
United States Magistrate Judge
To:
Miguel Ruales
444 Chestnut Street
Roselle, NJ 07203
December 3, 2020
All counsel of record
LETTER OPINION AND ORDER
RE:
Ruales v. Spencer Savings Bank
Civil Action No. 18-9192 (KM)(MAH)
Dear Litigants:
Presently before the Court is Plaintiff ‘s pro se motion for pro bono counsel pursuant to 28
U.S.C. § 1915(e)(1) [D.E. 65]. For the reasons set forth below, Plaintiff’s motion is denied.
Background
Plaintiff, a resident of Elizabeth, New Jersey, claims that by letter dated August 9, 2017,
Defendant, a state-chartered mutual savings and loan association of the State of New Jersey,
notified him that it would be closing his account effective September 9, 2017. Second Am.
Compl., Oct. 25, 2019, D.E. 37, at 2. Plaintiff contends that Defendant did not provide Plaintiff
with a reason for closing his account. Id. Plaintiff claims that as a result of the account’s closure
he incurred financial consequences, i.e., his credit rating was negatively impacted, checks written
on the account bounced, and his future ability to obtain credit was jeopardized. Id.
On May 14, 2018, Plaintiff brought this action pro se against Defendant for negligence,
claiming that Defendant had a duty to Plaintiff as its customer and that Defendant breached that
duty by closing Plaintiff’s account abruptly, without notice, and without explanation to Plaintiff.
Compl., May 14, 2018, D.E. 1, at ¶¶ 23-39. On June 11, 2018, Defendant filed a motion to
dismiss the Complaint, arguing that no duty existed on the part of Defendant to explain why it
was closing Plaintiff’s account and that the Court did not have subject matter jurisdiction over
the case because Plaintiff did not state a claim under federal law. Mot. to Dismiss, Jun. 11, 2018,
D.E. 5, at 4.
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The following day, Plaintiff filed an Amended Complaint. First Am. Compl., Jun. 12,
2018, D.E. 7. The First Amended Complaint reiterated Plaintiff’s negligence claim. Id. at ¶¶ 2541. The First Amended Complaint also added a claim under 42 U.S.C. § 1983, which alleged
that Defendant’s conduct discriminated against Plaintiff based on his Hispanic heritage and
thereby violated his civil rights. Id. at 5-7, ¶¶ 42-51.
On August 9, 2018, Defendant moved to dismiss the First Amended Complaint for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Mot. to Dismiss First Am.
Compl., Aug. 9, 2018, D.E. 10. The Court granted Defendant’s motion to dismiss the Amended
Complaint in its entirety and provided Plaintiff thirty days to move to amend. Order, Jan. 9,
2019, D.E. 21.
On January 24, 2019, Plaintiff filed a motion for leave to file a Second Amended
Complaint. Mot. for Leave to File Sec. Am. Compl., Jan. 24, 2019, D.E. 22. Defendant opposed
the motion. Opp’n Brief to Sec. Am. Compl., Jan. 30, 2019, D.E. 23. This Court denied
Plaintiff’s motion for leave to file a Second Amended Complaint on the basis of Local Civil
Rules 7.1(f) and 15(a)(2), and ordering Plaintiff to file a renewed motion with a red-lined version
of the proposed amended pleading no later than April 12, 2019. Am. Order, Mar. 18, 2019, D.E.
26.
On April 17, 2019, Plaintiff filed the renewed motion for leave to file a Second Amended
Complaint, containing red-lined edits per Local Civil Rules 7.1(f) and 15(a)(2). Renewed Mot.
for Leave to File Sec. Am. Compl., Apr. 17, 2019, D.E. 28. Plaintiff sought leave to amend his
Complaint to: (1) add additional facts in support of his negligence claim; (2) add counts for
breach of fiduciary duty and for breach of the covenant of good faith and fair dealing; and (3)
replace his § 1983 claim with a claim under 42 U.S.C. § 1981 claim. Id. at 4-7. This Court
granted Plaintiff’s motion on July 26, 2019, and Plaintiff filed his Second Amended Complaint
on October 25, 2019. Sec. Am. Compl., D.E. 37.
On October 29, 2020, Plaintiff moved for the appointment of pro bono counsel, arguing
that “I am facing a deposition without counsel, as well as entering into the final discovery phase,
including Summary Judgment anticipated motions, pretrial, and trial within the present case, and
require counsel.” Mot. to Appoint Pro Bono, D.E. 65. For the reasons stated herein, the Court
will deny Plaintiff’s motion.
Discussion
In civil cases, neither the Constitution nor any statute gives civil litigants the right to
appointed counsel. 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). 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 (citing
Tabron, 6 F.3d at 156).
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In the Third Circuit, a court considers the framework established in Tabron.
Montgomery, 294 F.3d 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.” Montgomery, 294 F.3d
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 guideposts 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-by-case basis.”
Tabron, 6 F.3d at 157-58. Also, 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, 294 294 F.3d at 499
(Parham, 126 F.3d at 458).
Here, with respect to the first Tabron prong, the Court assumes that Plaintiff’s claim has
merit for the purposes of this motion. Nevertheless, consideration of the Tabron factors does not
demonstrate that appointment of counsel is warranted at this time.
First, Plaintiff appears to be able to present his case. When considering ability to present
a case, courts generally consider a Plaintiff’s “education, literacy, prior work experience, and
prior litigation experience.” Tabron, 6 F.3d at 156. Based upon the present record, Plaintiff has
demonstrated a basic understanding of the legal foundation for his allegations. Moreover,
Plaintiff has demonstrated that he is an eager and involved litigator, having filed several motions
to amend his pleadings, one of which he filed sua sponte in response to Defendant’s motion to
dismiss, a rather nuanced skill for a pro se litigator. D.E. 7. In a similarly skilled fashion,
Plaintiff has filed both motions to compel discovery and to quash depositions. D.E. 15, 57, 61.
Accordingly, the Court finds that Plaintiff appears more than able to present his case.
Second, Plaintiff’s claim does not involve complex legal issues. Complexity supports
appointment “where the law is not clear, [as] it will often best serve the ends of justice to have
both sides of a difficult legal issue presented by those trained in legal analysis.” Tabron, 6 F.3d
at 156 (quoting Macklin v. Freake, 650 F.2d 885, 889 (7th Cir. 1981)); accord Montgomery, 294
F.3d at 502. Courts also consider “the proof going towards the ultimate issue and the discovery
issues involved.” Parham, 126 F.3d at 459; see also Montgomery, 294 F.3d at 502-03 (finding
appointment appropriate when, despite simple legal issues, discovery and presentation
difficulties compromised Plaintiff’s case). Here, appointment of counsel is not warranted
because the factual and legal issues involved in the case are not complicated. Plaintiff provides
no explanation in his pro bono motion as to why his claims contain complex legal issues.
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Therefore, the second Tabron factor weighs against the Plaintiff because it does not appear that
his claims present complex legal issues.
Third, there is no indication that Plaintiff lacks the ability to continue to conduct a factual
investigation without the assistance of counsel. Nothing suggests that the conclusion of
discovery in this case would be complicated or unduly burdensome. The claims appear to
involve a relatively discreet set of facts, many of which Plaintiff presumably has personal
knowledge, or at a minimum, is equipped to continue to investigate. Given that Plaintiff has
already proven himself to be a skilled pro se litigator, it does not appear that his deposition or
any small remaining discovery tasks would impose any unreasonable burden on Plaintiff. Thus,
the third Tabron factor weighs against the appointment of counsel.
Fourth, it is premature for the Court to conclude that this case will turn on credibility
determinations. Because “it is difficult to imagine” a case where credibility is not important, the
United States Court of Appeals for the Third Circuit has specified that “when considering this
factor, courts should determine whether the case [is] solely a swearing contest.” Parham, 126
F.3d at 460. The extent to which this case will rest on credibility determinations is not yet
apparent. Accordingly, this factor militates neither in favor of nor against appointing counsel.
Fifth, there is no indication that any expert testimony will be required at trial. Plaintiff’s
allegations of Defendants’ violations of his constitutional rights would be understandable to a lay
person without the need for expert assistance. See, e.g., Montgomery, 294 F.3d at 504 (holding
“expert testimony is necessary when the seriousness of the injury or illness would not be
apparent to a lay person.”). Thus, the fifth Tabron factor does not favor appointment.
Sixth, Plaintiff’s inability to obtain counsel alone is an insufficient reason to appoint
counsel. Pursuant to 28 U.S.C. 1915(e)(1), a District Court may not appoint pro bono counsel to
a person who has not yet submitted such an application. It does not appear that Plaintiff has filed
an in forma pauperis application. The failure to do so weighs against appointment of counsel at
this time.
This record does not meet most of the Tabron factors, and, therefore, the Court finds that
appointment of pro bono counsel is inappropriate at this time. Cf. Parham, 126 F.3d at 461
(finding appointment appropriate where most factors are met). For all the reasons set forth
above, the Court denies Plaintiff’s motion for the appointment of pro bono counsel without
prejudice.
Conclusion
A balancing of the factors set forth above does not weigh in favor of granting Plaintiff’s
request for counsel at this time. Therefore, Plaintiff’s motion of the appointment of pro bono
counsel [D.E. 65] is denied without prejudice.
So Ordered,
/s Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE
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