Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:04-cv-00419-JJF Document 128 Filed 06/17/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CATHY D. BROOKS—MCCOLLUM, :
Plaintiff, ;
v. Z Civil Action No. 04-419 JJF
STATE FARM INSURANCE COMPANY, ;
Defendant. Z
MEMORANDUM ORDER
Pending before the Court is Plaintiff's Motion For
Appointment Of Counsel.l (D.I. 124.) For the reasons discussed,
Plaintiff’s motion will be denied.
I. BACKGROUND
Pro se Plaintiff Cathy Brooks—McCollum has appealed the
Court's May 13, 2008, Memorandum Opinion and Order granting
summary judgment against Ms. Brooks—McCollum on her claim against
Defendant for breach of contract and tortuous conduct. (D.I.
123.) Ms. Brooks—McCollum's breach of contract claim pertains to
Defendant's alleged failure to indemnify her for expenses
incurred as a board member of the Emerald Ridge Service
Corporation, and for the costs of earlier litigation also brought
to enforce such indemnification.
lPlaintiff entitles her pleading “MOTION OF PLAINTIFF'S
CATHY D. BROOKS—MCCOLLUM & EMERALD RIDGE SERVICE CORPORATION TO
PROCEED IN FORMA PAUPERIS AND HAVE AN ATTORNEY APPOINTED ON
BEHALF OF HERSELF AND EMERALD RIDGE SERVICE CORPORATION." The
Court will bifurcate Ms. Brooks-McCollum's request for in forma
pauperus status and appointment of counsel; this order pertains
only to Ms. Brooks—McCollum's request for appointment of counsel.

Case 1:04-cv-00419-JJF Document 128 Filed 06/17/2008 Page 2 of 4
II. DISCUSSION
Indigent civil litigants possess neither a constitutional
nor a statutory right to appointed counsel. Parham v. Johnson,
126 F.3d 454, 456-57 (3d Cir. 1997). Nonetheless, district
courts have statutory authority to appoint counsel for indigent
civil litigants at any time during the litigation. 28 U.S.C. §
1915(e)(1) (providing that "[t]he court may request an attorney
to represent any person unable to afford counsel"); Montgomery v.
Pinchak, 294 F.3d 492, 504 (3d Cir. 2002).
Section 1915(e)(1) affords district courts broad discretion
in determining whether appointment of counsel in a civil case is
appropriate. Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).
As a threshold matter, the Court must assess whether the
claimant's case has some arguable merit in fact and law. Ig. at
155. If a claimant overcomes this initial hurdle, the Court may
then consider the following non—exhaustive list of factors
developed by the Third Circuit Court of Appeals:
1. the plaintiff'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 plaintiff's capacity to retain counsel on his
or her own behalf;
5. the extent to which a case is likely to turn on
credibility determinations, and;
6. whether the case will require testimony from
expert witnesses.
Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155—57)(the
2

Case 1:04-cv-00419-JJF Document 128 Filed 06/17/2008 Page 3 of 4
“Tabron factors”). When considering a request for counsel,
courts must keep in mind:
[the] significant practical restraints on the district
courts' ability to appoint counsel, including the
ever—growing number of prisoner civil rights actions
filed each year in the federal courts; the lack of
funding to pay appointed counsel; and the limited
supply of competent lawyers who are willing to
undertake such representation without compensation.
Montgomery, 294 F.3d at 505 (quoting Tabron, 6 F.3d at 156)
(internal quotation marks and citations omitted).
By her motion, Ms. Brooks—McCollum contends that she is
“entitled” to legal counsel and suggests that she cannot afford
to obtain counsel in light of the financial burden imposed by
this action and previous related litigation.
Exercising the broad discretion offered the Court, the Court
concludes that the appointment of counsel is not warranted. As
this is a civil matter, Ms. Brooks—McCollum’s contention that she
is entitled to counsel is mistaken. gge Parham, 126 F.3d at
456-57. As discussed thoroughly in the Court’s May 13, 2008,
Memorandum Opinion and Order granting summary judgment in favor
of Defendant, Ms. Brooks—McCollum’s claims are not supported by
arguable merit in fact and law. Given that Plaintiff cannot
satisfy this threshold inquiry, the Court will not proceed to
evaluate the Tabron factors and will deny Plaintiff’s Motion For
Appointment Of Counsel.
3

Case 1:04-cv-00419-JJF Document 128 Filed 06/17/2008 Page 4 of 4
ORDER
NOW THEREFORE, IT IS HEREBY ORDERED that Plaintiff's Motion
For Appointment Of Counsel (D.1. 124) is DENIED.2
June )7 , 2008 ¤L~uw>—
UNI S T DISTRIC UDGE
2As discussed above, see footnote 1, the Court will address
Plaintiff's request for in forma pauperus status (D.I. 124)
separately.
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