Filing
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MEMORANDUM AND ORDER - THAT Defendant John Michael Tedesco's Motion to Appoint Counsel (Doc. 40) is DENIED WITHOUT PREJUDICE.(Signed by Honorable Robert D. Mariani on 2/1/16. (jfg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
STATE FARM LIFE INSURANCE CO.,
Plaintiff,
v.
3:14·CV·01321
(JUDGE MARIANI)
JOHN MICHAEL TEDESCO, et aI.,
Defendants.
MEMORANDUM AND ORDER
I. BACKGROUND
On July 10, 2014 State Farm Life Insurance Company filed an Interpleader
Complaint (Doc. 1) wherein it sought to deposit the insurance proceeds of an insurance
policy on the life of Barbara Rabins into Court while criminal proceedings were pending in
the Court of Common Pleas of Monroe County against the named beneficiaries under the
aforesaid insurance policy, John Michael Tedesco and Tina Tedesco, who were charged
with willfully killing Barbara Rabins. Also named as a Defendant in this action was the
Estate of Barbara E. Rabins, John E. Fleming, Administrator.
The Estate of Barbara E. Rabins answered State Farm's Complaint and brought
crossclaims against the Tedescos. (Doc. 10). When the Tedescos failed to file any
response to the Complaint or the crossclaims of the Estate of Barbara Rabins, the Estate
moved for Entry of Default Judgment under Federal Rule 55(a) (Doc. 11). On September
29,2014 the Clerk of Court entered default against John Michael Tedesco and Tina
Tedesco. (Doc. 13). The Estate of Barbara Rabins also 'filed a Motion for Default Judgment
pursuant to Rule 55(b). (Doc. 12). A hearing scheduled January 21, 2015 on the Estate's
Motion for Default Judgment was cancelled by Order of this Court, which also stayed this
matter "pending the conclusion of the criminal proceedings in the Court of Common Pleas of
Monroe County against the defendants John Tedesco and Tina Tedesco, who are awaiting
trial on charges brought against them in connection with the death of Barbara Rabins."
(Doc. 20).
This Court by Order dated March 12, 2015 granted the motion of Plaintiff to permit it
to pay into the registry of this Court the death bene'fit of policy number LF-2223-5860, plus
accrued interest, in a total amount of $113,397.97 to be held for payment until the resolution
of the claims of John Michael Tedesco and Tina Tedesco and John E. Fleming as
Administrator of the Estate of Barbara E. Rabins. (Doc. 26).
This Court on November 12, 2015 granted the motion of Defendant John E. Fleming
as Administrator of the Estate of Barbara E. Rabins to lift the stay entered by this Court on
January 21, 2015. (Doc. 30). A hearing was held on the Motion for Default Judgment of the
Estate of Barbara E. Rabins on December 15, 2015. At that hearing, it was established
through the records of the Court of Common Pleas of Monroe County that John Michael
Tedesco and Tina Tedesco each were individually found guilty of third degree murder,
graded as a felony of the first degree, in the death of Barbara Rabins. John Michael
Tedesco and Tina Tedesco were each sentenced to a term of imprisonment of not less than
168 months and not more than 336 months. The Court further notes that John Michael
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Tedesco and Tina Tedesco were personally served with notice of the hearing to be held by
this Court on the Motion for Entry of Default Judgment against them filed by the Estate of
Barbara Rabins. (Doc. 31). Neither John Michael Tedesco nor Tina Tedesco appeared at
the hearing, in person or through counsel. Nor did this Court receive any communication
from either Tedesco seeking a postponement of the hearing or otherwise communicating an
interest in this matter or asserting any claim to the insurance policy proceeds at issue. The
Court then issued an Order (Doc. 34) entering judgment in favor of John E. Fleming as
Administrator of the Estate of Barbara E. Rabins as Crossclaim Plaintiff and against John
Michael Tedesco and Tina Tedesco as Crossclaim Defendants. The Order further provided
that:
Should John Michael Tedesco and Tina Tedesco fail to 'file a Motion seeking
to set aside the default judgment entered by this Order within thirty (30) days
of the date of this Order, the Clerk of this Court is thereafter directed to pay
the death benefits proceeds of the policy number LF-2223-5860, plus accrued
interest, in a total amount of $113,397.97, which is currently held in trust
pursuant to this Court's Order of March 12, 2015 (Doc. 26), to the Estate of
Barbara E. Rabins, John E. Fleming, Administrator.
Subsequently, Defendant John Michael Tedesco filed a "Motion to Set Aside Judgment"
(Doc. 36) and Defendants John Michael Tedesco and Tina Tedesco filed a "Motion for
Default Judgment" (alternately denominated as a "Motion of False Judgment") (Doc. 38).
Defendant John Michael Tedesco also filed a Brief in Support of his Motion to Set Aside
Judgment (Doc. 41). With Defendant Tina Tedesco, he also filed ajoint Brief in Support of
"Motion to Set Adie Judgement," "Motion for False JUdgment," or "Motion for Default
Judgment." (Doc. 43). Presently pending before the Court is Defendant John Michael
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Tedesco's motion to appoint counsel. (Doc. 40). For the reasons set forth below, the motion
will be denied.
II. MOTION TO APPOINT COUNSEL
The Court has discretion "to request an attorney to represent any person unable to
afford counsel." 28 U.S.C. § 1915(e)(1); Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997); Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d
147, 153 (3d Cir. 1993). The United States Court of Appeals for the Third Circuit has stated
that the appointment of counsel for an indigent litigant should be made when circumstances
indicate "the likelihood of substantial prejudice to him resulting, for example, from his
probable inability without such assistance to present the facts and legal issues to the court
in a complex but arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d
Cir.1984).
The initial determination to be made by the Court in evaluating the expenditure of the
"precious commodity" of volunteer counsel is whether the litigant's case has some arguable
merit in fact or law. Montgomery, 294 F.3d at 499. If a litigant overcomes this threshold
hurdle, other factors to be examined are:
(1) the litigant's ability to present his or her own case;
(2) the difficulty of the particular legal issues;
(3) the degree to which factual investigation will be necessary and the ability of the
plaintiff to pursue investigation;
(4) the litigant's capacity to retain counsel on his or her own behalf;
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(5) the extent to which the case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
Id. (citing Tabron, 6 F.3d at 155-57). The Third Circuit Court of Appeals added two other
factors to be taken into consideration: (1) the court's willingness to aid the indigent party in
presenting his or her own case; and (2) the available supply of lawyers willing to accept
section 1915(e) requests within the relevant geographic area. See Gordon v. Gonzalez,
232 Fed. App'x 153 (3d Cir. 2007).
Assuming arguendo that his defenses have merit, Defendant John Tedesco fails to
establish any circumstances warranting the appointment of counsel. See Tabron, 6 F.3d at
155-56. Defendant bases his motion on his view that the matter "require[s] development of
the record and further [proceedings] for which he is not skilled in the least." (Doc. 40).
However, upon review, the legal issues herein are relatively simple and likely do not require
expert testimony. Despite his incarceration, investigation of the facts is not beyond
Defendant John Tedesco's capabilities and he is familiar with the facts of his case.
Additionally, in his pleadings, Plaintiff demonstrates the ability to present comprehensible
arguments and to present his own case. This is particularly so where Defendant Tedesco
admits that his prior failure to respond to the proceedings before this Court was a tactical
decision made "at the advice of counsel," presumably criminal defense counsel. (Doc. 41 at
2). It is also noted that this Court does not have at its disposal a large group of attorneys
who would represent this action in a pro bono capacity. Finally, while a consideration of
whether Defendant John Michael Tedesco can attain and afford counsel on his own behalf
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would appear to weigh in favor of appointing counsel, the Court's overall consideration of
the above factors weighs against the appointment of counsel at this time
Based on the foregoing, it does not appear that Defendant John Tedesco will suffer
prejudice if forced to defend this case on his own. The Court's duty to construe pro se
pleadings liberally, Haines v. Kerner, 404 U.S. 519 (1972), Riley v. Jeffes, 777 F.2d 143,
147-48 (3d Cir. 1985), coupled with Defendant John Michael Tedesco's apparent ability to
litigate this action, militate against the appointment of counsel. Accordingly, the Motion to
Appoint Counsel (Doc. 40) will be denied, however said denial will be without prejudice. As
the Court in Tabron stated,
[A]ppointment of counsel under § 1915(d) may be made at any point in the
litigation and may be made by the district court sua sponte . .. even if it does
not appear until trial (or immediately before trial) that an indigent litigant is not
capable of trying his or her case, the district court should consider
appointment of counsel at that point.
Tabron, 6 F.3d at 156-57. Therefore, in the event that future proceedings demonstrate the
need for counsel, the matter may be reconsidered either sua sponte or upon motion of
Defendant John Michael Tedesco.
AND NOW, THIS
-J£
DAY OF FEBRUARY, 2016, IT IS HEREBY
ORDERED THAT Defendant John Michael Tedesco's Motion to Appoint Counsel (Doc. 40)
is DENIED WITHOUT PREJUDICE.
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