McNamee v. Starbucks Coffee Company

Filing 16

DECISION & ORDER denying without prejudice 10 Motion to Appoint Counsel. It is plaintiff's responsibility, therefore, to retain an attorney or press forward with this action pro se. Signed by Hon. Marian W. Payson on 4/15/2011. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHARON MCNAMEE,
DECISION & ORDER
Plaintiff,
10-CV-6508CJS
v.
STARBUCKS COFFEE CO.,
Defendant.

By order dated February 16, 2011, the above-captioned matter has been referred to
the undersigned for the supervision of pretrial discovery and the hearing and disposition of all
non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 6). Pro se
plaintiff Sharon McNamee has filed this lawsuit against defendant under Title VII of the Civil
Rights Act of 1964, the Age Discrimination in Employment Act and the Americans with
Disabilities Act, alleging that defendant discriminated against her on the basis of her sex, age and
disability. (Docket # 1). Currently before this Court is plaintiff’s motion for the appointment of
counsel. (Docket # 10).
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. However, under 42 U.S.C. § 2000e-5(f)(1), a court may appoint an attorney to represent a
complainant in a Title VII action. See, e.g., Ferrelli v. River Manor Health Care Center, 323
F.3d 196, 203 (2d Cir. 2003), cert. denied, 540 U.S. 1195 (2004). Such assignment of counsel is
clearly within the judge’s discretion. Id. 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;

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; and

5.

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

Id. (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); see also Hendricks v.
Coughlin, 114 F.3d 390, 392 (2d Cir. 1997).
The Court must consider the issue of appointment carefully, of course, 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., Inc., 877 F.2d 170, 172 (2d
Cir. 1989). Therefore, the Court must first look to the “likelihood of merit” of the underlying
dispute, Hendricks v. Coughlin, 114 F.3d at 392; Cooper v. A. Sargenti Co., Inc., 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).
Here, plaintiff seeks counsel on the basis that she cannot afford counsel. For the
purposes of this motion, the Court will accept plaintiff’s representation that she is unable to
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afford private counsel. The Court is unable to ascertain, however, at this early stage of the
litigation whether plaintiff’s claims likely have merit. In any event, plaintiff has failed to
demonstrate that her case is complex or that she will be unable to litigate adequately this case
without assistance of counsel. In addition, the Court also notes that there is a limited number of
local attorneys available to handle cases on a pro bono basis. Cooper v. A. Sargenti Co., Inc.,
877 F.2d at 172 (“[e]very assignment of a volunteer lawyer to an undeserving client deprives
society of a volunteer lawyer available for a deserving cause”). Based on this review, plaintiff’s
motion for appointment of counsel (Docket # 10) is DENIED without prejudice at this time. It
is plaintiff’s responsibility, therefore, to retain an attorney or press forward with this action pro
se.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
April 15 , 2011

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