Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:07-cv-00376-JJF Document 13 Filed 07/29/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIAM BOYD, :
Plaintiff, ;
v. ; Civil Action No. 07-376-JJF
WILMINGTON TRUST CO., E
Defendant. Z
MEMORANDUM ORDER
Pending before the Court is Plaintiff’s Motion For
Appointment of Counsel (D.I. I2). For the reasons discussed,
Plaintiff’s Motion will be denied.
I. Background
By his Complaint, Plaintiff, William Boyd (“Mr. Boyd"),
alleges that Defendant, Wilmington Trust Co., allowed Plaintiff’s
brother, John Boyd, to open an account for which Plaintiff was
liable and responsible. Mr. Boyd alleges that he was not
informed of the existence of this account, however, until it was
terminated. Mr. Boyd alleges that his brother sold B&R Co., Mr.
Boyd’s company, for $4 million and deposited the checks into Mr.
Boyd’s account with Defendant. Mr. Boyd alleges that Defendant
eventually shut the account down and failed to inform Plaintiff.
Mr. Boyd further alleges that his brother deposited checks
made out to B&R Co. into his own account. When Mr. Boyd informed
Defendant of these actions, he was told that there was nothing
that they could do for Mr. Boyd.
By his motion, Plaintiff contends that the Court should

Case 1:07-cv-00376-JJF Document 13 Filed 07/29/2008 Page 2 of 4
appoint him counsel based on the following factors: (1) he is
unable to afford counsel; (2) Plaintiff contends that his case is
in dire jeopardy without outside counsel.
II. Legal Standard
Indigent civil litigants have neither a constitutional nor a
statutory right to appointed counsel. Parham v. Johnson, 126
F.3d 454, 456-57 (3d Cir. 1997). However, district courts have
authority to appoint representation for any civil litigant unable
to afford counsel, 28 U.S.C. § 1915(e)(1), and are afforded broad
discretion in making that determination. Tabron v. Grace, 6 F.3d
147, 153 (3d Cir. 1993). The Court’s first consideration is
whether the indigent plaintiff’s claim appears to have “some
merit in fact and law.” Id. at .155 (citing Maclin v. Freake,
650 F.2d 885, 887 (7th Cir. 1981)(per curiam)). If so, the Court
may consider the following non—exhaustive factors in deciding
whether to appoint counsel:
1. 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 Plaintiff to pursue
investigation;
4. 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 v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing
Tabron, 6 F.3d at 155-57). In addition, the Court should consider
2

Case 1:07-cv-00376-JJF Document 13 Filed 07/29/2008 Page 3 of 4
practical constraints before appointing counsel: “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.” Tabron, 6 F.3d at
157.
III. Discussion
Keeping in mind the practical considerations cited above and
exercising its broad discretion, the Court concludes that the
appointment of counsel is not warranted at this time.
The Court assumes, solely for the purposes of deciding this
Motion, that Mr. Boyd’s claims have arguable merit, and will
therefore consider the Tabron factors. First, the Court finds
that Mr. Boyd has demonstrated an ability to present his case,
having set forth the facts and allegations of his action clearly,
as demonstrated by his early filings. At this early stage of the
litigation, the Court finds that the legal issues presented by
Mr. Boyd’s Complaint are not particularly complex, and notes that
Mr. Boyd has not alleged or adduced any evidence that would
indicate complexity of the legal issues. Mr. Boyd has not
alleged or adduced any evidence that he has been unable to obtain
counsel, or any evidence that suggests his attempts to obtain pro
bono legal representation have been unsuccessful. While this
case may involve credibility determinations, that factor alone
3

Case 1:07-cv-00376-JJF Document 13 Filed 07/29/2008 Page 4 of 4
does not determine whether counsel should be appointed. §ee
Parham, 126 F.3d at 460 ( “While the case ultimately may have
relied upon credibility, it is difficult to imagine a case that
does not." ) Finally, at this stage of the litigation, the Court
does not foresee the need for expert testimony.
Accordingly, the Court finds that the Tabron factor do not
weigh in favor of the appointment of counsel at this time, and
the Court will deny Mr. Boyd’s Motion For Appointment Of Counsel.

NOW THEREFORE IT IS HEREBY ORDERED this g f} day of July,
2008, that Plaintiff’s Motion For Appointment Of Counsel (D.I.
12) is DENIED.
">:
4