Free Order on Motion to Appoint Counsel - District Court of Delaware - Delaware

Case 1 :04-cv-01513-GIVIS Document 30 Filed 02/17/2006 Page 1 of 3
1N THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JANET LEIGH FRANKLIN, )
Plaintiff, Pro Se, )
v. ) Civil Action No. O4-1513 (GMS)
MBNA CORP., )
Defendant. )
ORDER
On December 13, 2004, plaintiff J anet Leigh Franklin filed the above-captioned discrimination
action pursuant to Title VII, and was granted leave to proceed informa pauperis. Presently before
the court is Franklin’s motion for appointment of counsel. (D.I. 13.) For the following reasons, the
court will deny her motion.
Franklin began working for the defendant MBNA Corp. ("MBNA"), on March 13, 1990.1 At
some point during the course of her employment, two of Frank1in’s co-workers began harassing her
on the job. As a result, Franklin went on short term disability leave. While on disability leave,
Franklin repeatedly requested a transfer to a different department. MBNA denied those requests and
asked her to resign — which she did. Soon thereafter, Franklin tiled charges with the Equal
Employment Opportunity Commission ("EEOC"), alleging discrimination based on disability. The
EEOC issued a Notice ofRight to Sue letter on November 11, 2004. Following receipt ofthe EEOC
letter, Franklin filed the instant action in a timely manner.
In a civil case, a plaintiffhas no constitutional or statutory right to the appointment ofcounsel.
See Parham v. Jo/mso;/1, 126 F.3d 454, 456—57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d 153-54 (3d
1For the purpose of deciding Frank1in’s motion for appointment of counsel, the court will
adopt the version ofthe facts alleged in the complaint. (DI. 2.)

Case 1:04-cv—01513-Gl\/IS Document 30 Filed 02/17/2006 Page 2 of 3
Cir. 1993). Nevertheless, under certain circumstances, the court may in its discretion request an
attorney to represent an indigent civil litigant. 28 U.S.C.A. § 1915(e)(1) (Supp. 2005). ln Tczbrozz,
and again in Par/mm, the Third Circuit set forth the standard for evaluating a motion for the
appointment of counsel by a pro se plaintiff. First, the court must examine the merits of a plaintiff’ s
claim. Only ifthe court is satisfied that the claim has some arguable merit in fact and law should it
then examine the following factors: (1) the ability of the plaintiff to present her case; (2) the
complexity of the legal issues; (3) the extensiveness of the factual investigation necessary to
effectively litigate the case and the ability ofthe plaintiff to pursue such an investigation; (4) the
degree to which the case may turn on determinations of credibility; (5) whether the testimony of
expert witnesses will be necessary; and (6) whether the plaintiff can afford to retain counsel on her
own behalf Par/iam, 126 F.3d at 457-58 (citing Tabron, 6 F.3d at 155-56, 157 n.5). This list is
illustrative and by no means exhaustive. Id. at 458. Nevertheless, it provides a sufficient foundation
for the court’s decision.
At a minimum, Frarrklin’s claims appear to rise above the level of frivolity. Additionally,
Franklin has thus far demonstrated an ability to represent herself- she has filed a complaint, a motion
to reopen her case, a motion to seal, exhibit and witness lists, and a motion for appointment of
counsel. Furthermore, the legal issues in this case are not particularly complex, and many of the
relevant facts are within Franklin’s personal knowledge. Thus, several factors weigh against
appointing counsel. On the other hand, the outcome of the case may turn on credibility, expert
testimony may eventually become necessary, and it does not appear that Franklin can afford counsel.
However, the court notes that nearly every case turns on credibility. The question, therefore, is
whether the possibility that expert testimony may become necessary, coupled with F ranklin’s inability
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Case 1 :04-cv-01513-GIVIS Document 30 Filed 02/17/2006 Page 3 of 3
to pay, justifies appointing an attorney. Because resources for these types of appointments are scarce,
the court must make such appointments with care. On balance, the court believes Franklin is capable
of representing herself at this time. Consequently, her motion must be denied. Nevertheless, it will
be denied without prejudice as to her ability to re—move the court for appointment of counsel should
there be an intervening change in circumstances that would materially alter the court’s reasoning.
IT IS HEREBY ORDERED THAT:
The plaintift"s motion for appointment ofcounsel (D.I. I3) be DENIED without prejudice.
Dated; February , 2006
U ED S TES DIST CT JUD
F I L E D
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