Eaton & Van Winkle, LLP v. Ren et al
Filing
45
OPINION AND ORDER re: 21 APPLICATION for the Court to Request Counsel, filed by Christine A. Waldbaum. By motion dated January 19, 2018 (Docket Item 21), defendant Christine A. Waldbaum seeks the appointment of pro bono counsel. For the reas ons set forth below, Ms. Waldbaum's motion is granted. Accordingly, the Court's Pro Se Office is respectfully requested to seek pro bono counsel to represent defendant Christine Waldbaum in this matter. The Clerk of the Court is requested to mark Docket Item 21 closed. SO ORDERED. (Signed by Magistrate Judge Henry B. Pitman on 9/21/2018) Copies Mailed By Chambers. (jca) Transmission to Office of Pro Se Litigation for processing.
Case 1:17-cv-06118-PGG-HBP Document 45 Filed 09/21/18 Page 1 of 5
. USDCSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOCUMENT
-----------------------------------x
DOC#:
EATON & VAN WINKLE, LLP, as
the Plan Administrator of
the Eaton & Van Winkle LLP
40l(k) Profit Sharing Plan,
Plaintiff,
ELECTRONJCAI.LY mED
~I/; r.
DATE FILED:
17 Civ. 6118
.
(PGG) (HBP)
OPINION
AND ORDER
-againstYUNGLING REN and
CHRISTINE A. WALDBAUM,
Defendants.
-----------------------------------x
PITMAN, United States Magistrate Judge:
By motion dated January 19, 2018
(Docket Item 21),
defendant Christine A. Waldbaum seeks the appointment of pro bona
counsel.
For the reasons set forth below, Ms. Waldbaum's motion
is granted.
This is an interpleader action in which the res in
dispute is the interest of Maxim Waldbaum in the 401(k) profit
sharing plan maintained by the law firm for which he formerly
worked.
Mr. Waldbaum was married to defendant Christine A.
Waldbaum from 1983 until 2002 when the couple divorced.
Approxi-
mately five months after the divorce, Maxim Waldbaum married
defendant Yungling Ren.
The present dispute arises out of the
competing claims of Christine Waldbaum and Yungling Ren to the
Maxim Waldbaum's interest in the profit sharing plan.
Christine
Case 1:17-cv-06118-PGG-HBP Document 45 Filed 09/21/18 Page 2 of 5
Waldbaum bases her claim on decisions issued by the state courts
in New Jersey, the location of the Waldbaum's former marital
residence, finding that Maxim Waldbaum owed Christine Waldbaum
substantial sums for alimony arrears, child support arrears and
legal fees.
The factors to be considered in ruling on a motion for
pro bono counsel are well settled and include "the merits of
plaintiff's case, the plaintiff's ability to pay for private
counsel,
[plaintiff's] efforts to obtain a lawyer, the availabil-
ity of counsel, and the plaintiff's ability to gather the facts
and deal with the issues if unassisted by counsel."
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989).
Cooper v. A.
Of these,
"[t]he
factor which command[s] the most attention [is] the merits."
Id.; accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203
(S.D.N.Y. Apr. 26, 1996)
F.3d 85, 88
(Batts, J.);
(2d Cir. 2003).
~
Berry v. Kerik, 366
As noted fifteen years ago by the
Court of Appeals:
Courts do not perform a useful service if they appoint
a volunteer lawyer to a case which a private lawyer
would not take if it were brought to his or her attention. Nor do courts perform a socially justified
function when they request the services of a volunteer
lawyer for a meritless case that no lawyer would take
were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174; see also
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997)
deciding whether to appoint counsel .
2
("'In
. the district judge
Case 1:17-cv-06118-PGG-HBP Document 45 Filed 09/21/18 Page 3 of 5
should first determine whether the indigent's position seems
likely to be of substance.
111
).
The Court of Appeals for the Second Circuit has
stated in various ways the applicable standard for
assessing the merits of a prose litigant's claim. In
Hodge [v. Police Officers, 802 F.2d 58 (2d Cir. 1986)],
[the court] noted that " [e] ven where the claim is not
frivolous, counsel is often unwarranted where the
indigent's chances of success are extremely slim," and
advised that a district judge should determine whether
the prose litigant's "position seems likely to be of
substance," or showed "some chance of success." Hodge,
802 F.2d at 60-61 (internal quotation marks and citation omitted).
In Cooper v. A. Sargenti Co., [the
court] reiterated the importance of requiring indigent
litigants seeking appointed counsel "to first pass the
test of likely merit." 877 F.2d 170, 173 (2d Cir.
1989) (per curiam).
Perrelli v. River Manor Health Care Ctr., 323 F.3d 196, 204
{2d Cir. 2003).
It appears that Christine Waldbaum plaintiff lacks the
financial resources to retain counsel privately.
Plaintiff
attests in her application to proceed in forma pauperis that she
has only modest assets and is the principal care giver for a
disabled son. 1
She has also demonstrated that she has attempted
to find counsel on her own, but has been unsuccessful in her
efforts.
In addition, given Ms. Waldbaum's non-legal background
(nursing), the requirements of her son and the complexity of the
1
Oddly, defendant Ms. Ren challenges Christine Waldbaum's
claim of poverty, and offers eight-year-old documents in support
of her challenge. Obviously, the documents Ms. Ren offers have
no relevance to Christine Waldbaum's current financial condition.
3
Case 1:17-cv-06118-PGG-HBP Document 45 Filed 09/21/18 Page 4 of 5
subject matter,
i-~-, whether the Orders of the New Jersey State
Courts constitute Qualified Domestic Relations Orders within the
meaning of Section 206 of ERISA, 29 U.S.C.
ยง
1056, I find that
she would have substantial difficulty litigating this mater
without an attorney.
248, 262
(1993)
See Mertens v. Hewitt Assocs., 508 U.S.
(describing ERISA as "an enormously complex and
detailed statute").
Most importantly, I find that Christine Waldbaum's
claim has sufficient merit to warrant the appointment of counsel.
The decisions in the record from the New Jersey State Courts
indicate that New Jersey has determined that Maxim Waldbaum owes
Christine Waldbaum a substantial amount of money; her claim
appears to have substance.
Although I also appreciate that Ms.
Ren and, perhaps, Maxim Waldbaum may have substantial defenses to
Christine Waldbaum's claims, the evidence regarding the latter's
claim suggest that they are sufficiently meritorious to meet the
low threshold to warrant the appointment of counsel.
See gener-
ally Ferrelli v. River Manor Health Care Ctr., supra, 323 F.3d at
204. 2
2
In order to avoid any misunderstanding, I emphasize that I
am not making a finding that Christine Waldbaum has demonstrated
a probability of success; such a showing is not required for pro
bona counsel.
I am merely concluding that, at this preliminary
stage and based on the limited information available to me,
Christine Waldbaum's claims appear to have sufficient substance
to warrant pro bona counsel.
4
Case 1:17-cv-06118-PGG-HBP Document 45 Filed 09/21/18 Page 5 of 5
Accordingly, the Court's Pro Se Office is respectfully
requested to seek pro bono counsel to represent defendant Christine Waldbaum in this matter.
The Clerk of the Court is re-
quested to mark Docket Item 21 closed.
Dated:
New York, New York
September 21, 2018
SO ORDERED
HZY~/~
United States Magistrate Judge
Copies transmitted to:
Brendan R. Marx, Esq,
Counsel for Eaton & Van Winkle LLP
Copies mailed to:
Yunling Ren, Esq.
Apt. 20-D
175 West 13th Street
New York, New York 10011
Ms. Christine A. Waldbaum
44 North Terrace
Maplewood, New Jersey 07040
5
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