Eckert v. United Automobile Workers of America et al

Filing 181

DECISION AND ORDER DENYING Plaintiff's 179 Motion for Appointment of Counsel without prejudice. Signed by William M. Skretny, Chief Judge U.S.D.C. on 4/27/2011. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY ECKERT,
Plaintiff,
v.

DECISION AND ORDER

FORD MOTOR COMPANY, et al.,

04-CV-538S

Defendants.

Plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C.
§ 1915(e). (Docket No. 179.) There is no constitutional right to appointed counsel in civil
cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist
indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc.,
865 F.2d 22, 23 (2d Cir. 1988).
The Court first notes that, while Plaintiff was granted in forma pauperis status at the
outset of this case, there is no indication that, nearly seven years later, he remains
indigent. Indeed, in his contemporaneously filed Motion for Extension of Time, Plaintiff
states that he “is now working a full time job, working between 40 and 60 hours per week.”
(Docket No. 178 at 2.) This certainly suggests that Plaintiff is now able to afford counsel
and so does not meet the threshold criteria of 28 U.S.C. § 1915(e).
Even were that not the case, it is well-settled that assignment of counsel is within
the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to
be considered in deciding whether or not to assign counsel include the following:
1.

Whether the indigent's claims seem likely to be of substance;
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2.

Whether the indigent is able to investigate the crucial facts concerning his
claim;

3.

Whether conflicting evidence implicating the need for cross-examination will
be the major proof presented to the fact finder;

4.

Whether the legal issues involved are complex;

5.

Whether there are any special reasons why appointment of counsel would
be more likely to lead to a just determination; and

6.

Whether the indigent has attempted to obtain counsel.

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers,
802 F.2d 58 (2d Cir. 1986).
The Court must consider the issue of appointment carefully because "every
assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer
lawyer available for a deserving cause." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d
Cir. 1989). Therefore, the Court must first look to the "likelihood of merit" of the underlying
dispute, Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and "even though a claim
may not be characterized as frivolous, counsel should not be appointed in a case where
the merits of the . . . claim are thin and his chances of prevailing are therefore poor."
Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying
counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared
to have little merit).
With these considerations in mind, the Court finds that, even assuming Plaintiff’s
statutory eligibility for appointed counsel, the standard for appointment of counsel has not
been met. The Court has reviewed the record to date in light of the factors required by law.
The claims remaining in this action are against Defendant UAW only. Plaintiff alleges that
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after he was unlawfully terminated from employment, Defendant UAW violated the
Americans with Disabilities Act, “NYSERA,” National Labor Relations Act, Labor
Management Reporting and Disclosure Act, and New York State public policy when it failed
to take his grievance to arbitration. Based on the Court’s review, Plaintiff’s Motion for
Appointment of Counsel is denied without prejudice at this time.

It is Plaintiff’s

responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. §
1654.
IT HEREBY IS ORDERED that Plaintiff’s Motion for Appointment of Counsel
(Docket No. 179) is DENIED without prejudice.

SO ORDERED.
Dated: April 27, 2011
Buffalo, NY
s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Court

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