Campbell v. Pepsi Beverages Inc.
DECISION & ORDER denying without prejudice 16 Motion to Appoint Counsel. It is Campbell's responsibility to retain an attorney or press forward with this lawsuit pro se ; denying 17 Motion to Expedite Discovery. The deadlines set forth in this Court's scheduling orders remain in full force and effect. Signed by Hon. Marian W. Payson on 5/12/2017. Copy of Decision & Order sent by First Class Mail to plaintiff Bobby Campbell, Jr. on 5/12/2017. (KAH)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BOBBY CAMPBELL, JR.,
PEPSI BEVERAGES INC.,
On August 29, 2016, pro se plaintiff Bobby Campbell, Jr. (“Campbell”) filed this
action against Pepsi Beverages Inc. (“Pepsi”) under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e, et. seq. (Docket # 1). Currently pending before this Court is plaintiff’s request
for appointment of counsel. (Docket # 16). Also pending before the Court is Campbell’s motion
seeking to expedite the discovery process and to proceed directly to summary judgment motions.
(Docket # 17).
Appointment of Counsel
It is well-settled that there is no constitutional right to appointed counsel in civil
cases. Although the Court may appoint counsel to assist indigent litigants pursuant to 28 U.S.C.
§ 1915(e), see, e.g., Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23
(2d Cir. 1988), such assignment of counsel is clearly 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:
Whether the indigent’s claims seem likely to be of
Whether the indigent is able to investigate the crucial facts
concerning [her] claim;
Whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to the
Whether the legal issues involved are complex; and
Whether there are any special reasons why appointment of
counsel would be more likely to lead to a just determination.
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, 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
The Court has reviewed the facts presented herein in light of the factors required by
law and finds, pursuant to the standards promulgated by Hendricks, 114 F.3d at 392, and Hodge v.
Police Officers, 802 F.2d at 58, that the appointment of counsel is not necessary at this time. As
stated above, a plaintiff seeking the appointment of counsel must demonstrate a likelihood of
success on the merits. See id. Campbell has not done so at this stage. Moreover, the legal
issues in this case do not appear to be complex, nor does it appear that conflicting evidence will
implicate the need for extensive cross-examination at trial. Finally, Campbell’s case does not
present any special reasons justifying the assignment of counsel. To the extent Campbell
maintains that his personal or professional responsibilities make it difficult for him to comply with
litigation deadlines, he is free to request an extension of those deadlines from the Court. On this
record, Campbell’s request for the appointment of counsel (Docket # 16) is DENIED without
prejudice at this time. It is the Campbell’s responsibility to retain an attorney or press forward
with this lawsuit pro se. 28 U.S.C. § 1654.
Campbell maintains that the discovery requests served by Pepsi are redundant, and
he contends that Pepsi has had sufficient time to “focus entirely” on this matter and “should be
more than ready without the inspection of my documents.” (Id. at 4). Approximately five
months ago, on December 14, 2016, the parties participated in a scheduling conference before the
Court, during which various scheduling deadlines were discussed with the parties and set by the
Court. (Docket # 11). That same day, the Court issued a scheduling order which provided,
among other deadlines, that mandatory disclosures were to be made by January 6, 2017, and that
fact discovery was to be completed by August 23, 2017. (Docket # 10). By letter dated January
5, 2017, Campbell requested an extension of his deadline to submit mandatory disclosures, which
was granted by the Court. (Docket # 12).
The record before the Court suggests that both Campbell and Pepsi have
propounded written discovery requests, which remain pending. (Docket ## 17 at 4 ¶ 2; 18).
Indeed, it appears that Campbell propounded his written discovery requests the same day that he
mailed the pending motion to the Court seeking to expedite the discovery process. (Docket
## 17-1; 18-3). As noted above, after a conference during which both parties participated, the
Court issued a scheduling order providing for fact discovery to continue until August 23, 2017.
Discovery requests are pending; even if Campbell is willing to forego seeking additional
discovery, defendants should not be mandated to do likewise.
Accordingly, the Court DENIES Campbell’s request to expedite discovery
(Docket # 17). The deadlines set forth in this Court’s scheduling orders remain in full force and
effect. (Docket ## 10, 12).
IT IS SO ORDERED.
s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
May 12, 2017
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