Free Memorandum in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SHAWN WRIGHT, : : Plaintiff, : : v. : : JAMES E. LIGUORI; LIGUORI, MORRIS & : YIENGST; and WACHOVIA BANK NATIONAL : ASSOCIATION, : : Defendants. :

C. A. No. 08-099-GMS

OPPOSITION OF DEFENDANTS JAMES E. LIGUORI AND LIGUORI, MORRIS & YIENGST TO PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL COME NOW, James E. Liguori, and Liguori, Morris & Yiengst (hereinafter "Defendants"), by and through undersigned counsel hereby respond to Plaintiff's Motion for Appointment of Counsel, and in support thereof state as follows: 1. On or about February 14, 2008, plaintiff filed his pro se complaint for money

damages against Defendants, which alleged negligence in their representation of plaintiff in a civil action in the State of Delaware, involving the seizure of certain assets (D.I. 2). By letter dated August 5, 2008, Plaintiff requested pro bono counsel, which request the court considered a motion for appointment of counsel (D.I. 24). This is Defendants' response. 2. By Court Ordered dated May 16, 2008, this Court directed that "Discovery

motions and motions for appointment of counsel filed prior to service will be dismissed without prejudice". (Order D.I. 14, par. 6) A review of the instant docket demonstrates that as of the date of plaintiff's motion, plaintiff's complaint has not been served upon co-defendant,

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Wachovia Bank. As of the date of the filing of the Opposition, Plaintiff's complaint has not been served upon co-defendant. 3. 4. Whereas service has not been perfected, Plaintiff's Motion should be dismissed. Assuming, arguendo, that plaintiff's motion is not dismissed per the Court Order,

the motion should be denied in accordance with Delaware law. 5. This action is currently before the Court on subject matter jurisdiction based on

diversity of citizenship. 28 U.S.C.S. 1332. Plaintiff has pleaded only a common law negligence claim against Defendants. No federal questions or claims arising under the U.S. Constitution are before this court (D.I. 14). 6. A Federal District Court sitting in diversity in Delaware must apply Delaware

conflict of law rules in determining what state law will govern. Whitwell v. Archmere Academy Inc., 463 F. Supp. 2d 482 (D. Del. 2006). In Delaware, the local law of the state which has the "most significant relationship to the occurrence and parties" will govern the rights of the litigants. Travelers Indemnity Co. v. Lake, 594 A.2d 38 (Del, 1991). The State of Delaware clearly has the most significant relationship to the occurrence and parties, as plaintiff and defendants entered into a contract in Delaware for the Defendants to represent plaintiff's interest in a civil action in a court sitting in the State of Delaware. Accordingly, Delaware law should apply to this action. 7. Plaintiff is currently a prisoner at FCI Fairton. In sum, the instant motion is a

request for the appointment of counsel to assist a prisoner in a civil action against a private person. That being so, the motion should be denied. 8. Delaware law is well settled on this issue. The Supreme Court of Delaware has

long held that, "There is no authority for the appointment of counsel to assist a prisoner to

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initiate a civil action against a private person". Winward v. Wilkinson Assoc., 586 A.2d 1203 (Del. 1990). Plaintiff's claim is a common law negligence claim against James E. Liguori individually, and against the law firm of Liguori, Morris & Yiegnst. While Delaware trial courts have recognized a limited extension of the Constitutional right to counsel, this does not include civil actions in which a private party is sued. 9. Assuming, arguendo, when considering the instant motion, this court utilizes the

same analysis as it would in actions against state actors, plaintiff's motion should nevertheless be denied. Pro se litigants proceeding in forma pauperis have no constitutional or statutory right

to appointed counsel. Parham v. Johnson, 126 F.3d 454, 456 (3rd. Cir. 1997) ("The Supreme Court has not recognized nor has the Court of Appeals found a constitutional right to counsel for civil litigants"). It is solely within the Court's discretion to request appointed counsel for indigent civil litigants. 28 U.S.C. § 1915(e)(1). In exercising its discretion, the court must initially determine whether Plaintiff's claim "has arguable merit in fact and law". Parham v. Johnson, supra., at 457 (citing Tabron v. Grace, 6 F.3d 147, 155 (3rd Cir. 1993), cert. denied 510 U.S. 1196 (1994)). If this threshold is met, the court "must perform the requisite six-factor Tabron analysis". Id., 126 F.3d at 459. These factors are: (1) (2) (3) (4) (5) (6) The plaintiff's ability to present his or her own case; The complexity of the legal issues; The degree to which factual investigation will be necessary and the ability of the plaintiff to pursue such investigation; The amount a case is likely to turn on credibility determinations; Whether the case will require the testimony of expert witnesses; Whether the plaintiff can attain and afford counsel on his own behalf. Id. at 457 (citing Tabron, 6 F.3d at 155-156, 157 n. 5).

While these factors should guide the court in evaluating the appointment of counsel, this list is not exclusive and the court retains broad discretion. Tabron, 6 F.3d at 157. The court should also consider that "`[v]olunteer lawyer time is a precious commodity... Because this

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resource is available in only limited quantity, every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause. We cannot afford that waste.'" Id., quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989). 10. Plaintiff's motion for appointment of counsel consists simply of a letter request to

the Clerk's office (D.I. 24). Plaintiff makes no effort to show that the requisite Tabron factors have been met, and fails to put forth any facts to indicate that the appointment of counsel is necessary and appropriate in this action. Therefore, plaintiff's motion should be denied on its face. 11. Plaintiff's motion should nevertheless be denied upon completing the six-factor

Tabron analysis. The first factor, plaintiff's ability to present his own case, weighs against the appointment of pro bono counsel. Plaintiff is obviously capable of presenting his claim without assistance. In his complaint, plaintiff has sufficiently articulated the facts which he believes entitle him to relief (D.I. 2). He has also successfully amended his complaint (D.I. 8). Clearly, plaintiff has demonstrated a sufficient grasp of the English language, and is able to utilize resources such as a typewriter, photocopying machine, pen, paper, and law library services. 12. Furthermore, plaintiff has significant prior litigation experience. He is obviously

familiar with the procedures involved in presenting a lawsuit. Plaintiff has filed several other lawsuits, arising out of the facts and circumstances of his present incarceration, including an action in the United States District Court for the District of New Jersey, challenging the Bureau of Prison's calculation of his release date, pursuant to 18 U.S.C. § 3585. Wright v. Schultz, 2008 U.S. Dist. LEXIS 36361 (N.J. Dist. 2008) (Exhibit A). Although Plaintiff was not successful on the merits of his challenge, he clearly demonstrated his ability to articulate the pertinent factual

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circumstances and legal issues necessary for the court to make its determination. Finally, plaintiff has not shown the existence of any restraints placed upon him by his confinement, which would prevent him from presenting this action. 13. The second factor in the Tabron analysis, the complexity of the legal issues, also

weighs against the appointment of pro bono counsel. Plaintiff's claim against Defendants is a simple common law negligence claim. Resolution of the claim will likely turn upon discussions between plaintiff and his former counsel, Mr. Liguori. As the legal issues involved are not complex, it is not imperative that plaintiff be appointed counsel. 14. The third factor in the Tabron analysis, the degree to which factual investigation

will be necessary and the ability of the plaintiff to pursue such investigation, weighs against the appointment of counsel. It has not been shown that the present case is one in which a significant factual investigation is necessary. There are no witnesses to the present dispute. The relevant facts are within plaintiff's personal knowledge, and those facts that are not, can be obtained through the tools of written discovery. 15. The fourth factor, the likelihood that the case will turn on credibility Generally, the appointment of

determinations, weighs against the appointment of counsel.

counsel may be appropriate if necessary to clarify the prisoner's testimony. Here, however, the prisoner has already pleaded guilty to the distribution of narcotics in excess of 5 kilograms. Attached hereto as Exhibit B is a transcript of the proceedings in the U.S. District Court for the District of New Jersey, in United States of America v. Shawn Wright, wherein plaintiff pleaded guilty to the charge. The Honorable Jerome B. Simandle was very precise in his questioning of the plaintiff about the factual bases for the guilty plea. Given the factual basis for the plea, when

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considered in light of the fact that this plea resulted in plaintiff's second conviction for distribution of drugs, plaintiff's credibility before a jury is beyond the help of counsel. 16. The fifth factor, whether the case will require the testimony of expert witnesses,

weighs against the appointment of counsel, is as yet, undetermined. Whereas no discovery has been taken, it is presently impossible to determine whether the alleged negligence is so obvious that expert testimony is unnecessary, or whether the claim hinges on a point so fine as to require it. This factor militates in favor of neither party. 17. The final factor, whether the plaintiff can attain and afford counsel on his own

behalf, weighs against the appointment of counsel. Plaintiff's complaint alleges damages of approximately $500,000. In most civil actions involving an amount in controversy of this magnitude, litigants with meritorious claims, whether imprisoned or not, are usually able to enter into contingent fee agreements with members of the Delaware bar who can advocate on their behalf. Whereas Plaintiff has made no showing that he has been unable to retain counsel under these or similar terms, it appears that his inability to retain counsel, if real, is a natural result of the strength of his claim as opposed to an inability to pay counsel. 18. Therefore, under the six-factor Tabron analysis used by this court in determining

whether pro se litigants proceeding in forma pauperis have the right to appointed counsel, plaintiff's claims in this action do not warrant the appointment of pro bono counsel. WHEREFORE, based on the foregoing reasons, Defendants respectfully request this Honorable Court enter an order denying plaintiff's motion for appointment of counsel.

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MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C.

/s/ Norman H. Brooks, Jr.____ Norman H. Brooks, Jr. (2568) 913 N. Market Street, Suite 800 Wilmington, DE 19801 Attorney for Defendants James E. Liguori, and Liguori, Morris & Yiengst

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : C. A. No. 08-099-GMS : JAMES E. LIGUORI; LIGUORI, MORRIS & : YIENGST; and WACHOVIA BANK NATIONAL : ASSOCIATION, : : Defendants. : ___________________________________________________________________ CERTIFICATE OF SERVICE ____________________________________________________________________ I, Norman H. Brooks, Jr., hereby certify that on _August 22, 2008, I electronically filed an Opposition of Defendants James E. Liguori and Liguori, Morris & Yiengst to Plaintiff's Motion to Appoint Counsel with the Clerk of Court using CM/ECF. I have also served, via first class mail, two copies of same to the Pro Se Plaintiff: Mr. Shawn Wright 40987-050 FCI - Fairton P.O. Box 420 Fairton, NJ 08320 SHAWN WRIGHT,

/s/ Norman H. Brooks, Jr._______________ Norman H. Brooks, Jr., Esquire (2568) Marks, O'Neill, O'Brien & Courtney, P.C. 913 North Market Street, #800 Wilmington, DE 19801 (302) 658-6538 Attorney for Defendant Liguori, Morris & Yiengst

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