Luis v. Zang et al
MEMORANDUM OPINION AND ORDER: Plaintiff's motion for the appointment of counsel, for the appointment of an expert and for miscellaneous relief #182 is DENIED; Plaintiff's motion for extension of time in which to move to further amend his complaint against Awareness and/or to add new parties #185 is DENIED AS MOOT in light of Plaintiff's compliance with the 1/31/17 deadline; Plaintiff's second amended complaint #186 shall be STRICKEN based solely on the referenced procedural error, and shall not be refiled without leave of this Court. Signed by Magistrate Judge Stephanie K. Bowman on 2/1/17. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:12-cv-629
JOSEPH ZANG, et al.,
MEMORANDUM OPINION AND ORDER
This case is before the undersigned following remand from the Court of Appeals
for the Sixth Circuit. Currently pending is Plaintiff’s second motion to appoint counsel, 1
to appoint an expert, and for miscellaneous relief. (Doc. 182). On January 20, 2017,
Plaintiff filed an “emergency motion for extension of filing deadline and for a
determination or ruling on pending motion for appointment of counsel.” (Doc. 185).
Both of Plaintiff’s motions will be denied.
Since filing suit nearly five years ago, Plaintiff has proceeded pro se in the
prosecution of his claims at the trial court level, although he was represented by counsel
during the pendency of his successful appeal to the Court of Appeals for the Sixth
Circuit. That appeal challenged this Court’s dismissal of Plaintiff’s claims against a
single defendant, Awareness Technologies, Inc. In a published opinion reversing and
remanding that decision, the Sixth Circuit summarized the facts as follows:
Plaintiff refers to a ruling that denied an earlier motion to appoint counsel, but the docket sheet of this case does not
reflect the referenced order. The current motion amends an earlier version of the same motion, but the prior version
was withdrawn. (Doc. 180).
Javier Luis, a resident of Florida, developed an online personal
relationship with Ohio resident Catherine Zang. The relationship was
apparently platonic, but Catherine’s husband, Joseph Zang, was
nonetheless suspicious of his wife’s online activities. This caused Joseph
to secretly install a product known as WebWatcher on the computer used
by Catherine in order to monitor her communications. According to Luis,
WebWatcher and its manufacturer, Awareness Technologies, Inc.,
surreptitiously intercepted the emails, instant messages, and other
communications that were sent between Luis and Catherine. Awareness
then allegedly disclosed the communications to Joseph, who used them
as leverage to divorce Catherine on favorable terms.
Upset by the capture and disclosure of his otherwise private
communications, Luis filed suit against Joseph Zang, Awareness, and
several others. He eventually settled his claims against all the defendants
other than Awareness. With respect to Awareness, Luis alleged that the
involvement of its WebWatcher “spyware” in secretly recording the
communications at issue violated the federal Wiretap Act, the Ohio
Wiretap Act, and Ohio common law.
Luis v. Zang, 833 F. 3d 619, 623 (6th Cir. 2016). Underlying Plaintiff’s appeal was a
Report and Recommendation (“R&R”) filed on March 5, 2013, in which the undersigned
recommended that Awareness’s motion to dismiss all claims for failure to state a claim
be granted. That R&R was adopted by the presiding district judge.
In a spit decision, the appellate court disagreed with this Court’s dismissal of
Plaintiff’s claims, holding that Plaintiff had adequately stated two federal claims under
different sections of the federal Wiretap Act as well as related state law claims. The
majority opinion 2 found Plaintiff to have adequately alleged: (1) that Awareness
intentionally intercepted Luis’s electronic communications, in violation of 18 U.S.C.
§2511; (2) that Awareness also violated 18 U.S.C. §2512; and (3) that Awareness
Judge Gilman delivered the opinion of the court, in which Judge Merritt joined and as to which Judge
Batchelder dissented. As the dissent points out, Luis did not present his current theory of his claims
against Awareness before the undersigned, but instead first raised them in his objections to the R&R. Id.
at 644 n.1.
violated Ohio state law (a) by intercepting and using his electronic communications
within the meaning of Ohio’s Wiretap Act, and (b) by invading his privacy within the
meaning of the common-law tort. See id. at 625 (defining Plaintiff’s causes of action).
In the intervening time period between the dismissal of Awareness by this Court
and reinstatement of the claims against Awareness on remand, ten other defendants in
this case, as well as all claims and additional defendants in a closely related and
partially consolidated case, have been dismissed. Thus, at this point in the litigation,
only Awareness and Plaintiff remain. On remand, Plaintiff seeks the appointment of
counsel by this Court, as well as the appointment of one or more experts on his behalf.
Defendant Awareness has filed a response in opposition to Plaintiff’s
motion, to which Plaintiff has filed a reply. (Docs. 183, 184).
A. Plaintiff’s Motion for the Appointment of Counsel
Plaintiff’s 22-page motion seeks the appointment of counsel under 28 U.S.C. §
1915(e)(1), which states that a court “may request an attorney to represent any person
unable to afford counsel.” While the statute permits a court to exercise its discretion to
seek the appointment of counsel for an indigent person, civil litigants have no
constitutional right to the appointment of counsel at government expense.
Anderson v. Sheppard, 856 F.2d 741 (6th Cir. 1988).
The instant case does not present the type of “exceptional circumstances” that
would justify this Court’s rare request to counsel to take on the pro bono representation
of a pro se civil litigant. Lavado v. Keohane, 992 F.2d 601, 605-606 (6th Cir. 1993);
Glover v. Johnson, 75 F.3d 264, 268 (6th Cir. 1996)(observing that courts do not
appoint counsel in civil cases absent “truly extraordinary” circumstances). The type of
“exceptional” or “truly extraordinary” circumstances that would justify the appointment of
counsel extends well beyond relatively routine factors such as illiteracy, poverty, lack of
legal knowledge, or illness. Unfortunately, the Court’s civil case docket contains large
numbers of civil cases filed by plaintiffs proceeding pro se who seek the Court’s
appointment of counsel. Virtually all of them would benefit from the appointment of
counsel, but virtually none of them will be appointed counsel. While many of these
cases are initiated by prisoners, others are filed by individuals who suffer from a variety
of serious mental or physical illnesses, or who, like Plaintiff herein, cite poverty and a
desire to level the playing field. (See, e.g. Doc. 182 at 14, arguing a “solo pro se
[plaintiff] versus a corporate entity’s boundless resources is hardly fair under anyone’s
definition of justice.”)
One of the many reasons that this Court cannot appoint counsel to the vast
majority of pro se litigants who seek such appointments is that the Court does not have
either funds from which counsel can be compensated, or a ready list of attorneys who
are eager to take on such cases without compensation. Importantly, this Court has no
power to appoint counsel unless counsel is also willing to serve, because §1915(e)(1)
only authorizes a “request” that an attorney represent an in forma pauperis litigant. See
Mallard v. United States District Court, 490 U.S. 296 (1989).
provides funding for the appointment of defense counsel only in criminal cases, in which
the right to counsel is secured by the Sixth Amendment of the United States
Constitution. No similar right to counsel exists for an individual who voluntarily initiates
a civil suit for money damages, no matter how meritorious a plaintiff may believe his or
her claim to be. A small number of federal statutes, including those relating to the
representation of social security claimants and some civil rights laws, provide for
compensation of attorney’s fees in civil cases – typically, at the conclusion of a case if a
plaintiff’s attorney has prevailed on the merits. However, such cases are an exception
to the American rule that each side in litigation must bear his or her own litigation costs.
Residence in Florida Not Grounds For Appointment
Plaintiff urges this Court to appoint him counsel based upon the fact that he
resides in Florida, where he first initiated this litigation. He asserts that “his knowledge
of local procedures in a court 1,000 miles away is surely lacking.” Plaintiff admits he
has been “moderately successful” at writing motions and supporting legal memoranda,
but argues that he “is not adept at the procedural rules” including discovery.
Plaintiff does not need counsel to assist him with “local procedures” in this Court,
as all local rules and practices are publicly available on the Court’s website. Likewise,
the rules of discovery along with relevant case law may be ascertained through the
same type of thorough legal research that Plaintiff has proven himself capable of
through virtually every motion and memorandum he has filed.
With respect to Plaintiff’s continued complaints that “there is no good reason for
this case to have remained in Ohio after the other defendants all settled,” (Doc. 182 at
14), the undersigned can only reiterate this Court’s prior observation.
district court transferred this case to this district after ruling that it lacked personal
jurisdiction over the Defendants. 3 (Doc. 64). In rejecting a prior complaint about the
transfer, the undersigned wrote:
Plaintiff cannot claim entitlement to a forum where jurisdiction did not lie.
As Defendants and the Florida court pointed out, Plaintiff made no
argument in opposition to the claim of improper venue. Regardless of his
current opposition, the prior ruling is the law of the case and will not be
revisited by this Court.
(Doc. 142 at 11, PageID 1061). The fact that all Defendants other than Awareness (a
California corporation) have now been dismissed, as has the closely related case with
which Mr. Luis’s case was previously partially consolidated, does not change the law of
the case concerning jurisdiction and venue. In any event, Plaintiff has stated that he
intends to continue in this Court. (Doc. 182 at n. 20).
Demonstrated Abilities Disfavor Appointment
Plaintiff’s current motion and entire course of this litigation underscore that
Plaintiff is more than capable of pursuing his remaining claims against Awareness pro
se. Plaintiff’s level of skill, intelligence, and ability to articulate his claims and perform
legal research are obvious, and would be supported by the many documents that
Plaintiff has filed in the record even if Plaintiff had not graduated from law school. 4
Given the dramatic reduction in the number of claims and defendants through
Pursuant to an Amended Order of Consolidation filed on January 31, 2013, a pre-existing related case in
this Court (Case No. 1:11-cv-884) and the above-captioned case were partially consolidated solely for
purposes of pretrial proceedings. (Doc. 101).
The record reflects that Plaintiff graduated from law school, although he apparently never sat for a bar
exam. This Court’s recognition of Plaintiff’s educational achievement is intended as but one of many
factors considered in the discretionary determination of whether to appoint counsel. It is not, as Plaintiff
protests, an indication that this Court has ignored the practice of construing pro se pleadings liberally.
settlement and dismissal, 5 as well as the dismissal of a related case, this case has
become less complex than when originally filed. In addition, the Sixth Circuit’s analysis
has effectively parsed the relevant factual and legal issues in Plaintiff’s remaining claims
Desire to Overturn Precedent Not Grounds For Appointment
Plaintiff contends that he also seeks the appointment of counsel due to the
“judicial neutering of the Wiretap Act,” (Doc. 182 at 7). Plaintiff makes clear that he
seeks assistance to overturn established legal precedent interpreting the Wiretap Act,
including but not limited to a “contemporaneity” requirement that was upheld by the
Sixth Circuit in this case. “[T]his lawsuit will not turn its attention towards an eventual
‘contemporaneous intercept’ standard.” (Id.) “Addressing the ‘contemporaneous
standard’s’ dangerous limitations …will be a primary focus in appeals in the second half
of this lawsuit.
Surely there is a need for an eventual overturning of the
‘contemporaneous standard’ of intercept.” (Id.) He writes further: “[T]his case has yet
to truly address the main reason for this lawsuit – the eventual overturning of a Sixth
Circuit precedent that helped enable the spyware industry to gain a foothold in the
corporate world.” (Id. at 11, citing Smoot v. United Transportation Union, 246 F.3d 633
642-645 (6th Cir. 2001)). 6
Awareness questions Plaintiff’s ability to maintain in forma pauperis status in light of his prior settlements
for “at least $30,000,” but the Court finds no grounds to question Plaintiff’s status at this time.
Citing Smoot’s holding on damages. Plaintiff states that he will “now focus on…how improper
interpretation of Congressional intent of intended damages has undermined the Wiretap Act in the Digital
Age.” (Doc. 182 at 17, n.14). Plaintiff’s challenge to established law on damages is extremely premature.
Plaintiff hopes that his case will “herald the beginning of the end of employer
monitoring in the workplace.” (Doc. 182 at 11). However, Plaintiff’s request for counsel
to challenge established and controlling Sixth Circuit precedent, including a holding in
this very case, is not grounds for such appointment.
In the original 2013 R&R, this Court briefly explained the differences between the
Wiretap Act and the Store Communications Act, as defined both by the statutory
provisions and relevant case law. The undersigned noted that the majority of courts
have held that the Wiretap Act prohibits only the “contemporaneous” interception of
This Court also reasoned that Plaintiff had adequately
pleaded that an “intercept” occurred. (See Doc. 109 at 14). On appeal, the Sixth Circuit
upheld the contemporaneity requirement, holding that the definition of “intercept” applies
“solely to the transfer of electronic signals,” and “does not apply to the acquisition of
signals that are no longer being transferred” but are instead found in electronic storage.
Id., 833 F.3d at 627.
The Sixth Circuit emphasized that interception “must thus occur
contemporaneously with the transmission of the communication; it must, in other words,
catch the communication ‘in flight’ before the communication comes to rest and ceases
to be a communication.” Id. at 627-628, citing Steve Jackson Games, Inc. v. U.S.
Secret Service, 36 F.3d 457, 461-62 (5th Cir. 1994); see also United States v.
Szmuszkiewicz, 622 F3d 701, 704 (7th Cir. 2010), as amended (Nov. 29, 2010).
While the Sixth Circuit agreed with this Court concerning the definition of
“intercept,” the appellate court disagreed with the view that a manufacturer like
Awareness could not be held liable under either § 2511 or § 2512 of the Wiretap Act. 7
Instead, construing Plaintiff’s allegations liberally, the Sixth Circuit held that the
marketing materials filed as an exhibit to the complaint along with the amended
complaint contained “factual content sufficient to support a reasonable inference that
contemporaneously with their transmission” or while they were “in flight” for purposes of
§ 2511. (Id. at 630). 8 The Sixth Circuit further reasoned that Congress’s definition of
the class of defendants subject to civil suit under § 2520 of the Wiretap Act was “broad
enough to include those entities – such as Awareness – that allegedly violate
§2512(1)(b) by manufacturing and remaining involved in the operation of a device that is
primarily used to commit such violations” despite the fact that §2512 alone (a criminal
provision) does not permit private civil suits.
Id. at 635.
Thus, the Sixth Circuit
confirmed that if the facts alleged are proven, Awareness can be held civilly liable under
§ 2512 and § 2520 for taking “a much more active role in causing the Wiretap Act
violation in this case” than in other cases in which an individual defendant merely
possessed a device. Id. at 637.
Intention to Seek New Defendants or Claims Not Grounds for Appointment
Plaintiff argues that during discovery, he will seek “other viable defendants,”
speculating that “there is a likelihood that Defendant operates in conjunction with other
Id. at 19-20 (pointing out that “the distcrict court largely agreed with the above analysis and concluded
that Luis’s communications had been intercepted,” but holding that this Court erred in failing to find that
Luis had properly alleged “that Awareness itself – not simply the WebWatcher user” is “responsible for the
The Sixth Circuit also held that this Court erred by relying upon an affidavit submitted by Awareness with
its motion to dismiss, without converting the motion to one for summary judgment.
larger software companies” that may somehow be liable through their “hidden
affiliations” with Awareness, which Plaintiff believes can only be discovered by “a
computer expert and/or experienced lawyer.” (Doc. 182 at 11). Plaintiff’s speculation
that new unidentified claims and/or Defendants may yet exist is not grounds for the
appointment of counsel. Even if Plaintiff could assert new claims that would not be
time-barred against newly discovered defendants, the Sixth Circuit’s opinion narrowly
defines the parameters of civil liability. See Luis v. Zang, 633 F.3d at 637 (holding that
a defendant “is subject to a private suit under § 2520 only when that defendant also
plays an active role in the use of the relevant device to intercept, disclose, or
intentionally use a plaintiff’s electronic communications.”).
No Additional Reasons Favor Appointment
In the last seven pages of his supporting memorandum, Plaintiff argues
vigorously that he should be appointed counsel on the basis of: (1) the presumed merits
of his claims; (2) “exceptional circumstances”; (3) Plaintiff’s inability to retain counsel
due to the low amount of recoverable damages (under existing law) and the lack of
familiarity of most attorneys with Internet law; and (4) Plaintiff’s view that this Court’s
past rulings demonstrate an abuse of discretion, and that a failure to appoint counsel
constitutes an additional abuse of discretion. None of the additional grounds persuade
the undersigned to appoint counsel at this time.
In contrast to Plaintiff’s insistence that the Sixth Circuit’s opinion reflects the
“proven…merit” of his claims, that court expressed no opinion on the merit of Plaintiff’s
Instead, as a matter of first impression, the Sixth Circuit merely held that
Plaintiff had adequately pleaded several closely related federal and state claims, such
that Defendant Awareness should be made to file an answer.
At this point in the
litigation, discovery has barely begun, and the merits remain uncertain. In its response
in opposition to Plaintiff’s motion for counsel, Awareness insists that it has evidence that
the WebWatcher product does not operate in the manner alleged by Plaintiff in his
complaint, but instead “operates by removing items from stored memory of the
computer on which the software program has been installed.”
(Doc. 183 at 2).
Awareness apparently intends to move for summary judgment on this factual issue,
which goes to the heart of the “contemporaneity” requirement and definition of
“intercept” of electronic communications. 9
considerations, 10 the undersigned finds no exceptional circumstances exist to support
the appointment of counsel at this time.
If dispositive motions are denied after
discovery, Plaintiff may refile his motion to seek the assistance of trial counsel.
see generally Lince v. Youngert, 136 Fed. Appx. 779 (6th Cir. June 3, 2005) (upholding
denial of trial counsel based upon observed capabilities of plaintiff as an able advocate
who successfully opposed two motions for summary judgment, even if skilled attorney
might have more skillfully tried the case).
Plaintiff has suggested that he does not (yet) know whether he can satisfy the “contemporaneity”
requirement under current law. In fact, he expresses an intention to use this lawsuit to overturn
controlling Sixth Circuit precedent, including the contemporaneity requirement.
Plaintiff seeks counsel with particular expertise in technical issues. This Court does not maintain a list
of attorneys willing to accept pro bono appointments in civil cases, much less a list of attorneys with the
type of unique and specific technical expertise that Plaintiff seeks.
Plaintiff also remains free to seek the appointment of counsel to represent him in
a court-facilitated settlement conference. This Court will appoint counsel for pro se
litigants when all parties have expressed an interest in a court-facilitated mediation.
The appointment of counsel for that limited purpose is less rare in part because it is less
burdensome, usually requiring counsel to appear together with Plaintiff on only a single
day to negotiate a settlement with opposing counsel. 11
B. Plaintiff’s Motion for the Appointment of Experts
In addition to seeking counsel, Plaintiff seeks the appointment of one or more
technical experts on his behalf to “peer into the clandestine infrastructure within the little
known corporate world of weapons-grade spyware likely derived and/or perfected in
national security agency labs.”
(Doc. 182 at 4).
He argues that the “nature of
eDiscovery and the complicated software and algorithms central to this case demand
appointment of experts in this field,” and that such experts are prohibitively expensive.
(Id. at 12). He suggests that the “timing of the intercepts, the algorithms used by their
programmers to weed out illegal intercepts, as well as their marketing strategies are
something Plaintiff is not adept at investigating.” (Id. at 13). Plaintiff expresses hope
that discovery of root kit software by an expert “will…likely expose the role that
[national] security agencies played in unleashing this powerful root kit based software
into the hands of corporate America,” which “could lead to a larger expansion of this
case delving into [the] intentional release of government lab created software into the
hands of the public….” (Doc. 182 at 11, n.7).
It is the practice of this Court for court-facilitated settlement conferences to be set before a different
magistrate judge than the one who oversees pretrial management of the case.
Plaintiff cites Federal Rule of Evidence 706, which permits the court “discretion to
appoint an expert and to apportion costs.”
However, Rule 705 pertains to the
appointment of a trial expert for the court and by the court. Neither Rule 706 nor any
other provision provides for the appointment of an expert on behalf of an indigent
plaintiff. Congress has authorized the waiver of filing fees and for transcript fees in
some circumstances for litigants who proceed in forma pauperis, but has not authorized
the waiver of other litigation expenses such as experts, court reporter costs, or copies.
See generally Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert denied, 108
S. Ct. 1298 (1988). As other courts have explained in denying similar motions:
The authority of the Court to appoint an expert witness is virtually
unquestioned. Fed.R.Evid. 706 (advisory committee notes) (citations
omitted). But “[t]he rule does not provide a method by which the court may
afford expert witness testimony to an indigent litigant at public expense.
Congress has not appropriated any funds for the hiring of expert …
witnesses to support the claims of indigent civil litigants.” Baker v. County
of Missaukee, No. 09–01059, 2011 WL 4477154, at *3 (W.D.Mich. Sept.
Colton v. Scutt, 2012 WL 5383115, at *7 (E.D.Mich.,2012).
Rule 706 permits the Court to appoint an expert witness to aid the Court,
not a party, and requires his or her compensation to be taxed as a cost to
the parties, not paid by the Court. Fed.R.Evid. 706(b), (c). See Colton v.
Scutt, No. 10–CV–13073, 2012 WL 5383115, at *7 (E .D.Mich. Nov. 1,
2012) (citing Dodson v. Wilkinson, 304 F. App'x 434, 442 (6th Cir.2008)),
aff'd, Colton v. Cohen, 2013 WL 3724835, at *2 (E.D.Mich. July 15, 2013).
Because indigent plaintiffs must still bear the costs incident to litigation,
including the payment of witness fees, Brown, 74 F. App'x at 614–15,
[plaintiff] may not shift that expense to an opposing party or the Court.
Christensen v. U.S., 2014 WL 1513140, at *4 (E.D.Ky.,2014). In short, if this Court
desires an expert to aid the Court at trial, it can and will appoint one. However, it cannot
and will not appoint an expert to assist Plaintiff in discovery or to prove his claims at
C. Emergency motion for an extension of filing deadline and for a
determination or ruling on motion for appointment of counsel
While Plaintiff’s motion for the appointment of counsel was under review,
dissatisfied with the Court’s failure to rule as quickly as desired, Plaintiff filed an
“emergency motion for extension of filing deadline and for a determination or ruling on
pending motion for appointment of counsel.” In this second motion, Plaintiff references
the undersigned’s statement during a pretrial case conference held in November, 2016
that the Court would endeavor to rule quickly on his anticipated motion for counsel.
Plaintiff states that he “put on hold” any work on a motion to amend the pleadings,
which deadline the Court set for January 31, 2017, in order to allow hoped-for counsel
to assist him.
Plaintiff’s current motion for counsel was not filed until after the calendar order
was entered, and was not fully briefed until December 6, 2016. This Court has many
cases, with criminal cases necessarily taking priority over civil cases. Although many
motions for the appointment of counsel can be resolved more quickly than this one, the
Court owes no apology for taking extra time to research and thoroughly consider
Plaintiff’s motion and extensive memoranda in this case, or for the additional time it took
to construct this correspondingly detailed Memorandum Opinion and Order.
The deadlines set forth in November 3 calendar order were never conditioned on
whether or not counsel would be appointed on Plaintiff’s behalf, or when that motion
would be ruled upon. For that reason alone, denial of Plaintiff’s request for a 30-day
extension of the deadline to move to amend his pleadings or add parties would have
been appropriate. However, the motion to extend the deadline is also now moot, as
Plaintiff complied with the existing deadline by filing a motion seeking leave to amend.
Plaintiff appropriately included a copy of the tendered amended complaint as an
exhibit to his motion for leave. (Doc. 187). However, he committed a procedural error
by simultaneously filing the second amended complaint prior to the Court ruling on his
motion for leave to file that pleading. (Doc. 186). The procedurally improper amended
complaint will be stricken from the record as unauthorized, pending full briefing and a
judicial ruling on the pending motion.
III. Conclusion and Order
1. Plaintiff’s motion for the appointment of counsel, for the appointment of an
expert and for miscellaneous relief (Doc. 182) is DENIED;
2. Plaintiff’s motion for extension of time in which to move to further amend his
complaint against Awareness and/or to add new parties (Doc. 185) is
DENIED AS MOOT in light of Plaintiff’s compliance with the January 31, 2017
3. Plaintiff’s second amended complaint (Doc. 186) shall be STRICKEN based
solely on the referenced procedural error, and shall not be refiled without
leave of this Court.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
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