NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PRICASPIAN DEVELOPMENT

CORPORATION, et al.,

Plaintiffs,

v. 

WILLIAM MARTUCCI, et al.,

Defendants.

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Hon. Dennis M. Cavanaugh

OPINION

Civil Action No. 11-cv-1459 (DMC-MF)

DENNIS M. CAVANAUGH, U.S.D.J.

This matter comes before the Court upon the Application of Defendant William C. Martucci

(“Defendant”) for the Appointment of Pro Bono Counsel. ECF No. 101. Pursuant to FED. R. CIV.

P. 78, no oral argument was heard. After carefully considering the submissions of the parties, and

based upon the following, it is the finding of this Court that Defendant’s Application is denied. 

I. BACKGROUND

This is Defendant’s second application for appointment of pro bono counsel in this matter. 

Magistrate Judge Joseph A. Dickson issued an Opinion and Order, dated June 13, 2011, denying

Defendant’s initial application. ECF No. 40, 41. The underlying facts of this case are more

thoroughlydiscussed in Judge Dickson’s Opinion, and will not be addressed here except as necessary

to set forth the background for this Application.

Following Judge Dickson’s Opinion and Order, the parties exchanged numerous pre-trial

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motions in this matter. Defendant filed the present Application on February 23, 2012, stating that

he is on a fixed income of less than $22,000.00 per year from social security, has no assets, cannot

find a job, and cannot afford an attorney. Plaintiffs filed Opposition papers on February 28, 2012,

arguing that Defendant did not provide any proof of income in his most recent application, that Judge

Dickson previously denied Defendant’s first application, and that Defendant has actively litigated

this case without assistance. ECF No. 104. Defendant filed a response on March 14, 2012. ECF

No. 116. The matter is now before this Court.

II. LEGAL STANDARDS

District courts have authority to request the appointment of counsel to represent indigent

litigants in civil cases. 28 U.S.C. § 1915(e)(1). Because civil litigants do not have a constitutional

right to appointed counsel, the Third Circuit has stated that district courts should first determine

whether a plaintiff's claim “has arguable merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 153,

155 (3d Cir. 1993), cert denied, 510 U.S. 1196 (1994). Assuming there is merit, the Third Circuit

has set forth a number of factors to be considered by district courts in the exercise of their discretion

under § 1915(e)(1). These factors are: (1) the plaintiff’s ability to present his case; (2) the

complexity of the legal issues; (3) the extent of factual discovery, and the plaintiff’s ability to

investigate and to comply with complex discovery rules; (4) the extent the case may turn on

credibility determinations; (5) whether expert testimony will be required; and (6) whether the

plaintiff can afford counsel on his own behalf. Id. at 155-56. This Circuit has also emphasized “that

volunteer lawyer time is extremely valuable” and for that reason, “district courts should not request

counsel under § 1915(d) indiscriminately.” Simpson v. Federal Bureau of Prisons, No. 02-2313,

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2005 WL 2387631 at *3 (M.D. Pa. Sept. 28, 2005) (citing Tabron, 6 F.3d at 157). 

III. DISCUSSION

Judge Dickson previously noted that a determination of the merits was not feasible, because

Defendant’s Answer outright denies all of Plaintiffs’ allegations, and asserts his own counterclaims

supported onlyby general conclusoryallegations. The parties have not presented this Court with any

reason to suggest that the litigation has advanced to a point where a determination of the merits of

Defendant’s defenses is now possible. Accordingly, the Court will move on to a consideration of

the Tabron factors.

Defendant’s Application and Reply focus almost exclusively on his own financial

circumstances, and argue that he is not capable of retaining an attorney on his own. Plaintiffs argue

that Defendant has not presented any actual evidence to this Court suggesting that this is true, and

instead argue that Defendant “has access to a massive stockpile of cash.” While Defendant, in

Reply, has submitted exhibits pertaining to the origin and location of certain funds, these exhibits

do not conclusively answer the question of what funds Defendant presently has access to. At this

stage in the litigation, the Court is unable to determine whether Defendant is in fact incapable of

affording an attorney. While this dispute leaves the question of Defendant’s finances unanswered,

it does indicate that credibility determinations could be important to the outcome of this case. As

Judge Dickson previously noted, however, the credibility issues do not appear to be so complex that

Defendant would not be able to effectively present his own defense. 

In regards to Defendant’s ability to present his case, Judge Dickson noted that Defendant’s

“response to the Complaint and his subsequent requests for documents reflect that he has a sufficient

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understanding of both the Federal Rules of Civil Procedure and the legal issues at hand.” 

Defendant’s recent application provides this Court with no reason to suggest that circumstances have

changed. Rather, Defendant’s filing of ten motions to quash in this matter provides further evidence

that Defendant is capable of litigating this case. This factor thereforeweighs against the appointment

of counsel. 

Further, as Judge Dickson noted, while a factual investigation will be necessary for this case,

and is indeed currently ongoing, Defendant has demonstrated a capacity to conduct such an

investigation sufficiently well. Once again, Defendant’s filing of multiple motions to quash further

indicates his ability to comply with and make use of the discovery rules and process. Accordingly,

this factor does not support the appointment of counsel.

As for the remaining factors, the Court finds that they do not weigh in favor of appointing

counsel. The issues of this case do not appear to be especially complex. Nor does it appear likely

that expert discovery will be necessary, as the parties have not indicated that such testimony will be

required. Finally, in considering these factors, the Court is mindful that volunteer lawyer time is

extremely valuable, and should not be granted indiscriminately. Accordingly, the Court finds that

the balance of the Tabron factors weighs against appointing counsel.

IV. CONCLUSION

For the reasons stated, Defendant’s Motion is denied. An appropriate Order accompanies 

this Opinion.

 S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: April 3 , 2012 

Orig.: Clerk 

cc: All Counsel of Record

Hon. Mark Falk, U.S.M.J.

File 

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