Orellana v. Real Innovative Construction, LLC
1:18-cv-08396
S.D.N.Y.Jun 7, 2022Background
- This is an order in Orellana v. Real Innovative Construction et al., directing the Clerk to seek pro bono counsel for defendant Carlos Morales.
- Morales represents he is indigent and has been in bankruptcy since 2019, and plaintiffs consent to the request for pro bono assistance.
- The Court previously gave Morales time to request pro bono counsel; he later joined plaintiffs in a status letter asking the Court to secure counsel.
- Fact discovery closed May 16, 2022; the case is to be tried non-jury and plaintiffs anticipate filing a summary judgment motion.
- Given the late stage, the Court limited the pro bono request to counsel participation in completing the litigation, opposing or responding to summary judgment, and engaging in settlement discussions.
- The Court noted it may only request (not appoint) volunteer counsel, identified the availability of a Pro Bono Fund for limited expense reimbursement, warned there is no guarantee a volunteer will accept the case, and denied IFP status for any appeal as not taken in good faith.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court should seek pro bono counsel under 28 U.S.C. §1915(e)(1) for Morales | Plaintiffs consent and support the request | Morales is indigent and requests volunteer counsel | Clerk directed to attempt to locate pro bono counsel for limited purposes |
| Whether the Court can "appoint" counsel or provide payment | Plaintiffs asked the Court to assist in securing counsel | Morales seeks representation at no cost | Court may only request volunteer counsel (not appoint); no funds to pay private counsel |
| Whether pro bono counsel should be sought at late stage (discovery closed, non-jury) | Plaintiffs agreed to the request despite late stage | Morales seeks help for summary judgment and settlement even late | Court will seek counsel for limited tasks (complete litigation, assist with summary judgment, settlement) |
| Whether IFP status for an appeal should be granted | none | none | Appeal not in good faith; IFP denied for appeal |
Key Cases Cited
- Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989) (district courts may request but not appoint counsel under §1915)
- Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) (factors to consider before seeking pro bono counsel)
- Cooper v. A. Sargenti Co., Inc., 877 F.2d 170 (2d Cir. 1989) (volunteer-lawyer time is a precious commodity; requests must be sparing)
- Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997) (no bright-line rules; applications decided on individual facts)
- Coppedge v. United States, 369 U.S. 438 (1962) (standard for finding an appeal not taken in good faith)