Under Cover Roofing Labor, Inc. v. Herrick
2:19-cv-00176
| D. Vt. | Aug 31, 2020Background
- Under Cover Roofing Labor, Inc. (d/b/a Snow Country Roofing) sued Kayla Herrick and Snow Country Roofing, LLC alleging trademark infringement (Lanham Act) and eight related state-law claims arising from Herrick's former sales employment and formation/registration of the LLC.
- Defendants: Herrick (pro se) and Snow Country Roofing, LLC (corporate defendant not yet appeared). Plaintiff is represented by counsel.
- Herrick filed a second, unopposed motion seeking appointment of counsel under 28 U.S.C. § 1915(e)(1) and under the Fourteenth Amendment; she also asked for a stay pending appointment.
- The court previously ruled that corporate parties must appear through licensed counsel; it denied Herrick’s earlier Sixth Amendment-based request because the Sixth Amendment does not apply in civil cases.
- The court evaluated whether (1) the LLC can receive appointed counsel under § 1915, (2) Herrick (an individual) should receive appointed counsel under § 1915, (3) the Fourteenth Amendment requires appointment, and (4) whether a stay is warranted while counsel is sought.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1915(e)(1) permits appointment of counsel for the corporate defendant (LLC) | Unopposed (no argument) | LLC requests appointment under § 1915 | Denied — § 1915 applies only to natural persons, not corporations (Rowland). |
| Whether to appoint counsel under § 1915 for Herrick (individual) | Unopposed | Herrick argues her defenses (non‑use in commerce, permission, descriptiveness of mark) have merit and she cannot afford counsel | Denied — court finds Herrick's defenses have some merit and will assist in locating pro bono counsel but will not appoint counsel now; she may refile if assistance fails. |
| Whether Fourteenth Amendment Due Process requires appointment of counsel | Unopposed | Herrick claims due process right to counsel | Denied — no right because loss of physical liberty is not at stake (Lassiter/Turner). |
| Whether to stay proceedings pending appointment of counsel | Unopposed | Herrick requests a stay while seeking counsel | Denied — court already granted a prior stay; further stay would prejudice docket efficiency and public interest; plaintiff unlikely to suffer prejudice but overall balance disfavors additional stay. |
Key Cases Cited
- Lattanzio v. COMTA, 481 F.3d 137 (2d Cir.) (corporations must appear through licensed counsel)
- Turner v. Rogers, 564 U.S. 431 (2011) (Sixth Amendment and civil due-process appointment limits)
- Rowland v. California Men's Colony, 506 U.S. 194 (1993) (§ 1915 applies only to natural persons)
- Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) (factors for appointing counsel under § 1915)
- Smith v. Fischer, 803 F.3d 124 (2d Cir.) (threshold of "some likelihood of merit" for appointment)
- Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989) (secondary criteria for pro bono appointment)
- Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) (distinctiveness spectrum for trademarks)
- Lassiter v. Department of Social Services, 452 U.S. 18 (1981) (due process counsel required only when physical liberty is threatened)
- Landis v. North American Co., 299 U.S. 248 (1936) (stay authority inherent in courts)