Case 1:16-cv-06287-KPF Document 106 Filed 04/18/19 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOMINGO CASTILLO MARCELINO,
Plaintiff,
-v.-

16 Civ. 6287 (KPF)
ORDER

374 FOOD INC., et al.,
Defendants.
KATHERINE POLK FAILLA, District Judge:
BACKGROUND

On March 27, 2018, the Court issued an Opinion and Order detailing its
findings of fact and conclusions of law after the bench trial in the instant
matter. (Dkt. #59). At the conclusion of the Opinion, the Court solicited
additional briefing from the parties concerning, among other things, the
propriety of sanctions against Plaintiff or Plaintiff’s counsel. Thereafter, the
Court received several applications from the defense, some of which addressed
whether Plaintiff’s counsel should be disqualified. More recently, Plaintiff’s
counsel has retained ethics counsel for advice in this matter, and by separate
order on this date, the Court is permitting the appearance of ethics counsel in
this case.
By letter dated April 17, 2019, ethics counsel advised the Court that
Plaintiff’s counsel wished to be relieved from the case, and offered to make a
formal motion in that regard. (Dkt. #104). In light of (i) Defendants’ prior
arguments that Plaintiff’s counsel should be disqualified and (ii) the Court’s
oral decision yesterday on Defendants’ motion to disqualify ethics counsel, the

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Court agrees that relieving Plaintiff’s counsel is appropriate and will not require
a formal motion. Separately, counsel requests that pro bono counsel be
appointed to represent Plaintiff on a going-forward basis. That request is
addressed in the remainder of this Order.
DISCUSSION
A.

Applicable Law
The in forma pauperis statute provides that the courts “may request an

attorney to represent any person unable to afford counsel.” 28 U.S.C.
§ 1915(e)(1). Unlike in criminal cases, in civil cases, there is no requirement
that courts supply indigent litigants with counsel. Hodge v. Police Officers, 802
F.2d 58, 60 (2d Cir. 1986). Instead, the courts have “broad discretion” when
deciding whether to grant an indigent litigant’s request for representation. Id.
Even if a court does believe that a litigant should have a lawyer, under the in
forma pauperis statute, a court has no authority to “appoint” counsel, but
instead, may only “request” that an attorney volunteer to represent a litigant.
Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 301–310
(1989). Moreover, courts do not have funds to pay counsel in civil matters.
Courts must therefore grant applications for counsel sparingly, and with
reference to public benefit, in order to preserve the “precious commodity” of
volunteer-lawyer time for those litigants whose causes are truly deserving.
Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989).
In Hodge, the Second Circuit set forth the factors a court should consider
in deciding whether to grant a litigant’s request for counsel. See 802 F.2d at
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61-62. Of course, the litigant must first demonstrate that he or she is indigent,
see Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994), for
example, by successfully applying for leave to proceed in forma pauperis. The
court must then consider whether the litigant’s claim “seems likely to be of
substance,” “a requirement that must be taken seriously.” Id. at 60-61. If
these threshold requirements are met, the court must next consider such
factors as:
the indigent’s ability to investigate the crucial facts,
whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to
the fact finder, the indigent’s ability to present the case,
the complexity of the legal issues[,] and any special
reason in that case why appointment of counsel would
be more likely to lead to a just determination.
Id.; see also Cooper, 877 F.2d at 172 (listing factors courts should consider,
including litigant’s efforts to obtain counsel). In considering these factors,
district courts should neither apply bright-line rules nor automatically deny
the request for counsel until the application has survived a dispositive motion.
See Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Rather, each
application must be decided on its own facts. See Hodge, 802 F.2d at 61.
B.

Discussion
The Court accepts the representation of ethics counsel and Plaintiff’s

counsel that Plaintiff qualifies for in forma pauperis status, which
representation accords with the Court’s observations during this case.
Accordingly, the Court finds that Plaintiff qualifies as indigent, and grants leave
for him to proceed without prepayment of fees going forward.
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Next, the Court finds that the issues for which Plaintiff now seeks
representation are “likely to be of substance.” Hodge, 802 F.2d at 61-62. After
all, the Court has concluded that Plaintiff perjured himself at trial, and is
seriously considering the imposition of sanctions against Plaintiff and/or his
trial counsel. The Court believes strongly that Plaintiff should be represented
in the remaining stages of this case. For similar reasons, the Court finds that
the other Hodge factors weigh in favor of granting Plaintiff’s application. The
Court has made very serious factual findings and Plaintiff is now exposed to
very serious consequences, including significant financial penalties. Put
simply, in this case, representation would “lead to a quicker and more just
result by sharpening the issues and shaping examination.” Hodge, 802 F.2d at
61.
CONCLUSION
For the foregoing reasons, the request of Plaintiff’s counsel to be relieved
is GRANTED and the coordinate request that the Court request provision of pro
bono counsel for Plaintiff is also GRANTED. The Court clarifies that there is no
court funds with which to retain counsel, and that the Court is dependent on
volunteer lawyers. Due to a scarcity of such attorneys, some time may pass
before an attorney is appointed for Plaintiff. If an attorney takes case, the
attorney will contact Plaintiff directly, and it will be Plaintiff’s choice whether to
be represented by that attorney.
Given the procedural posture of the case, the Court is staying the matter
to the extent that it will not entertain further motion practice until new counsel
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is located for Plaintiff. The Court also directs that outgoing Plaintiff’s counsel
provide a copy of this Order to Plaintiff and translate it for him into his native
Spanish. The Court expects that, until new counsel appears for Plaintiff,
outgoing Plaintiff’s counsel will keep Plaintiff aware of any developments in the
case.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal by
Plaintiff from this Order would not be taken in good faith and therefore IFP
status is denied for the purpose of an appeal. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: April 17, 2019
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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