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Simon v. Grafton, Inc.

United States District Court, Tenth Circuit

July 11, 2013

EMIL MARSHON SIMON, Plaintiff,
v.
GRAFTON, INC., Defendant

MEMORANDUM AND ORDER

Gerald L. Rushfelt United States Magistrate Judge

Before the Court is a Motion for Appointment of Counsel (ECF No. 9) filed by Plaintiff. For the reasons set out below, the Court denies the motion.

I. Relevant Factual Background

Plaintiff pro se commenced this action in December 2012 by filing a civil complaint. The Court granted him permission to proceed with this action in forma pauperis. It also denied a prior request for appointment of counsel without prejudice to Plaintiff’s filing a similar motion, if he survives summary dismissal. Before the defendant answered or otherwise appeared in this action, Plaintiff amended his complaint to correct an apparent jurisdictional deficiency. He also filed the instant motion for appointment.

II. Motion for Appointment of Counsel

In general, there is no constitutional right to appointment of counsel in a civil case.[1] The Court previously found that Plaintiff had not shown an adequate basis to request counsel to provide representation under 28 U.S.C. § 1915(e)(1). Although Plaintiff now asserts in his amended complaint a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., he has as yet provided no adequate basis to appoint counsel under that statute.

For actions under Title VII, the statute 42 U.S.C. § 2000e-5(f)(1) provides discretionary authority for appointing counsel “in such circumstances as the court may deem just.”[2][It provides no statutory right to counsel, only “a statutory right to request appointed counsel at court expense.”[3]The Court has “extremely broad” discretion to appoint counsel under § 2000e-5(f)(1).[4]For guidance the Tenth Circuit has identified factors that courts consider when evaluating a motion for appointment of counsel. Appointment of counsel is only appropriate under § 2000e-5(f)(1) after the plaintiff has affirmatively shown “(1) financial inability to pay for counsel; (2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination.”[5] As “an aid in exercising discretion” in close cases, the Court should also consider whether the plaintiff has the “capacity to present the case without counsel.”[6]

When considering appointment of counsel, the Court remains mindful that Congress has provided no mechanism for compensating appointed attorneys.[7] “Thoughtful and prudent use of the appointment power is necessary so that willing counsel may be located without the need to make coercive appointments. The indiscriminate appointment of volunteer counsel to undeserving claims will waste precious resource and may discourage attorneys from donating their time.” [8]Finally, the Court notes that it has only a limited pool of volunteer attorneys from whom it may appoint counsel.

The factors considered under Title VII regarding appointment of counsel are similar to those considered when deciding to request an attorney to represent an indigent party under § 1915(e)(1). Consequently, a ruling on a motion under the latter statute generally supports denying appointment under Title VII. The Court, nevertheless, examines the relevant factors for appointing counsel.

A. Financial Ability to Secure Counsel

Plaintiff has submitted a financial affidavit in this action. Based upon that affidavit, the Court has granted him permission to proceed in forma pauperis. The affidavit likewise shows that Plaintiff is financially unable to secure counsel. In the appointment-of-counsel context, the pertinent inquiry is whether the party seeking appointment can “meet his or her daily expenses” while also hiring an attorney.[9] Given the financial affidavit, Plaintiff has shown that he would be unable to meet his daily, non-discretionary expenses were he to hire an attorney.

B. Efforts to Secure Counsel

To obtain appointment of counsel, a party must make diligent efforts to secure counsel. This typically requires the party to meet with and discuss the case with at least five attorneys.[10] In his present motion, Plaintiff merely states he has contacted unspecified attorneys, but has been unable to obtain their services. That statement standing alone does not suffice to show diligent efforts to obtain counsel. In his prior motion, however, Plaintiff stated that he had contacted six attorneys. He also provided documentation that he personally conferred with those attorneys about his case. Given that ...


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