Morrison v. Dr Pepper Snapple Group

Filing 21

ORDER granting 15 Motion to Compel; denying without prejudice to renew 17 Motion to Appoint Counsel.The Court orders that plaintiff produce his initial Rule 26 mandatory disclosures and responses to defendants First Request for Production of Documents, First Set of Interrogatories and Demand for Expert Information within thirty (30) days of entry of this Order. Signed by Hon. Jonathan W. Feldman on 9/11/2012. (RJO)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Roy L. Morrison,
Plaintiff,
DECISION & ORDER
11-CV-6148

v.
Dr. Pepper Snapple Group,
Defendant.

Preliminary Statement
Pro se plaintiff brings the instant employment discrimination
action pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000(e) to 2000(e)-17, alleging that the defendant
discriminated against him and ultimately terminated him based on
his race and gender.

See Complaint (Docket # 1).

Currently

pending before the Court is defendant’s motion to compel (Docket #
15) and plaintiff’s motion for appointment of counsel (Docket #
17).

Discussion
I. Defendant’s Motion to Compel Discovery:
the

defendant

requests

that

plaintiff

In this motion,

produce

his

initial

disclosures and responses to its First Request for Production of
Documents, First Set of Interrogatories and Demand for Expert
Information.

Defendant also seeks an extension of the Court’s

Scheduling Order deadlines.

Pursuant to the Court’s Scheduling

Order (Docket # 8), all mandatory disclosures were to be produced

by September 12, 2011, and discovery was to be completed by January
31, 2012.

On September 12 and October 24, 2011, defendant filed

its Rule 26 mandatory disclosures.

(Dockets ## 10, 13).

October 24, 2011, defendant served its discovery demands.
Exhibit “A” attached to Docket # 15.

On
See

To date, plaintiff has not

produced his initial disclosures nor responded to defendant’s
discovery demands.

By Order dated December 22, 2011, the Court

directed plaintiff to respond to defendant’s motion to compel by
January 23, 2012.

(Docket # 16).

To date, plaintiff has not filed

a response in opposition to defendant’s motion.
The Court, having reviewed the defendant’s motion papers as
well as its discovery demands, hereby Orders that plaintiff produce
his

initial

Rule

26

mandatory

disclosures

and

responses

to

defendant’s First Request for Production of Documents, First Set of
Interrogatories and Demand for Expert Information within thirty
(30) days of entry of this Order.
Finally, on July 13, 2012, Judge Larimer referred the instant
action to mediation.

(Docket # 19).

Defendant may renew its

request to amend the Scheduling Order deadlines pending the outcome
of the mediation.
II. Plaintiff’s Motion to Appoint Counsel:

On January 24,

2012 plaintiff filed a motion for the appointment of counsel.
Plaintiff states that the appointment of counsel is necessary
because, inter alia, he does “not have the funds to hire an

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attorney” and “[t]his case is beyond my scope of Civil Law and
Practices.”

(Docket

#

17).

For

the

reasons

that

follow,

plaintiff’s motion for appointment of counsel (Docket # 17) is
denied without prejudice to renew.
Under 28 U.S.C. § 1915(e), the Court may appoint counsel to
assist indigent litigants.

Sears, Roebuck & Co. v. Charles W.

Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).

An

assignment of counsel is a matter within the judge's discretion.
In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984).

“There

is no requirement that an indigent litigant be appointed pro bono
counsel in civil matters, unlike most criminal cases.”
Hopkins, 14 F.3d 787, 789 (2d Cir. 1994).

Burgos v.

The factors to be

considered in deciding whether or not to assign counsel were set
forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d
58, 61-62 (2d Cir. 1986):
[T]he district judge should first determine
whether the indigent’s position seems
likely to be of substance.
If the claim
meets this threshold requirement, the court
should then consider the indigent’s ability
to investigate the crucial facts, whether
conflicting evidence implicating the need
for cross-examination will be the major
proof presented to the fact finder, the
indigent’s ability to present the case, the
complexity of the legal issues and any
special reason in that case why appointment
of counsel would be more likely to lead to
a just determination.
Applying
plaintiff’s

the

factors

allegations

do

set

forth

not

satisfy

3

in

Hodge,
the

I

initial

find

that

threshold

showing of merit.

In this regard, I note that the EEOC conducted

an investigation, which included an interview of plaintiff, and
concluded that plaintiff was terminated for inappropriate workplace
behavior and there was no evidence to support a finding that race
was a motivating factor.
“Volunteer lawyer time is a precious commodity” that “should
not be allocated arbitrarily.” Cooper v. A. Sargenti Co., 877 F.2d
170, 172 (2d Cir. 1989).
the

threshold

Even assuming that plaintiff could make

showing

of

merit,

the

factual

circumstances

surrounding plaintiff’s claims do not appear to be complicated and
the issues alleged in the Complaint are not unusually complex. The
alleged

inappropriate

complicated

and

behavior

discovery

straightforward.

Given

is

on

the

not

this

limited

factually

issue

would

resources

or

legally

seem

to

available

be

with

respect to pro bono counsel, I find no “special reason” why
appointment of counsel at this stage would be more likely to lead
to a just determination.
6481(LTSDF),

2003

WL

See Harris v. McGinnis, No. 02 Civ.

21108370,

at

*2

(S.D.N.Y.

May

14,

2003)(application denied where plaintiff “offered no special reason
why appointment of counsel would increase the likelihood of a just
determination”).

Plaintiff may consult with the Western District

pro se office attorneys for questions on process and procedure.

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Conclusion
Defendant’s motion to compel discovery (Docket # 15) is
granted.

Plaintiff’s motion to appoint counsel (Docket # 17) is

denied without prejudice to renew.

______________________________
JONATHAN W. FELDMAN
United States Magistrate Judge
Dated: September 11, 2012
Rochester, New York

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