Campbell v. Home Depot U.S.A., Inc.

Full title: TRICIA CAMPBELL, Plaintiff v. HOME DEPOT U.S.A., INC., Defendant

Court: United States District Court, S.D. New York

Date published: Apr 10, 2002

03 Civ. 1421 (JSR) (HBP) (S.D.N.Y. Apr. 10, 2002)

Opinion

03 Civ. 1421 (JSR) (HBP)

April 10, 2002

MEMORANDUM OPINION AND ORDER

HENRY PITMAN, United States Magistrate Judge

By motion dated February 18, 2003 (Docket Item 3), plaintiff moves for pro bono counsel.¹ For the reasons set forth below, the motion is denied without prejudice to renewal.

1 In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.

The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:

Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.

Cooper v. A. Sargenti Co., supra 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").

Even if I assume that plaintiff lacks the financial resources to retain counsel, her papers do not establish two factors relevant to her motion. There is nothing in plaintiff's application that suggests that she has made any substantial efforts on her own to retain counsel. There is nothing in plaintiff's application explaining why she is unable to litigate this matter on her own. Based on the details concerning plaintiff's claim that are set forth in the EEOC complaint annexed to the complaint, it appears, at least preliminarily that plaintiff's case does have sufficient merit to warrant its submission to the pro bono panel. I emphasize that this is a preliminary determination based solely on the facts alleged in plaintiff's EEOC complaint and assumes that all of those alleged facts are true. It is not a determination or prediction of the ultimate outcome of the case.

Accordingly, plaintiff's motion for counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit specifically addressing the relevant factors set forth above. The affidavit should provide details to establish that the foregoing factors are satisfied.

SO ORDERED