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Smith v. Jones

March 27, 2008

DONALD E. SMITH, PLAINTIFF,
v.
JONES, GREGG, CREEHAN & GERACE, LLP., RICHARD B. SANDOW, ESQ., DAVID M. HUNTLEY, ESQ., BYRON W. KING, ESQ., JOHN P. CORCORAN, JR., ESQ., RAYMOND M. ROBERTS, ESQ., MICHAEL A. CARR, ESQ., ANTHONY W. SAVEIKIS, ESQ., STOCKEY & KELLY, WILLIAM E. STOCKEY, ESQ., THE DOLAN GROUP, LLC., JOHN S. DOLAN, CPA, DAGNON & DENNEHY, JOHN M. DAGNON, CPA, PNC FINANCIAL SERVICES GROUP, JOEL GOLD, ESQ., LAZARUS M. PALNICK, ESQ., CHARLES DATZ, CLYDE H. SLEASE, ESQ., THOMAS E. CUNNINGHAM, BERNADETTE J. CUNNINGHAM, CHRISTIN S. MILLER, DAVID K. MILLER, RICHARD J. BARKO, AND STACIE L. BARKO, DEFENDANTS.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM ORDER

Pending now before the Court are the MOTION FOR APPOINTMENT OF ATTORNEY (Document No. 4) and MOTION FOR SERVICE OF SUMMONS (Document No. 5) filed by Plaintiff Donald E. Smith, who is pro se. The Court has previously granted Plaintiff's motion to proceed in forma pauperis under 28 U.S.C. § 1915. The motions will be addressed seriatim.

Motion to Appoint Counsel

Pursuant to 28 U.S.C. § 1915(e)(1), the Court "may" request an attorney to represent a party who otherwise could not afford counsel. However, "[i]ndigent civil litigants possess neither a constitutional nor a statutory right to appointed counsel." Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). The decision is within the broad discretion of the Court and may occur at any point in the process. Id.

As a threshold matter, the Court must assess whether the claimant's case has some arguable merit in fact and law. Id. (citing Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)). If a claimant overcomes this hurdle, additional factors that must be evaluated include:

1. the 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 the plaintiff to pursue investigation;

4. the 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.

Id. at 499 (citing Tabron). These factors are not exhaustive and the Court "should exercise care in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases." Id.

The Court harbors significant doubts as to Plaintiff's ability to overcome the threshold hurdle. The Complaint is extraordinarily lengthy and its chronological allegations are exhaustive. However, the gravamen of the complaint concerns control over a closely-held corporation, which Defendants allegedly drove into bankruptcy. Plaintiff asserts twelve causes of action, primarily based on state law. This Court cannot exercise subject matter jurisdiction on the basis of diversity of citizenship. The only possible grounds for federal question jurisdiction are Count XI, which purports to assert a civil RICO claim, and Count XII, which alleges a violation of 42 U.S.C. § 1985. As explained by the Supreme Court in Bell Atlantic Corp. v. Twombly, --- U.S. ----, 127 S.Ct. 1955, 1964 (2007), Plaintiff must state a "plausible" claim for relief.

There are four basic elements that a plaintiff must establish to prove any civil RICO action: (1) the existence of a RICO enterprise; (2) the existence of a pattern of racketeering activity; (3) a nexus between the defendant, the pattern of racketeering activity or the RICO enterprise; and (4) resulting injury to the plaintiff's business or property. Rosenberg v. JCA Assoc., 2007 WL 1038893 (D.N.J. 2007). Because Plaintiff is ...


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