United States District Court, D. Maine
ALAN J. PERRY, et al., Plaintiffs
JULIET ALEXANDER, et al., Defendants PETER TINKHAM, et al., Plaintiffs
LAURA PERRY, et al., Defendants
ORDER ON PLAINTIFF'S MOTION TO CLARIFY
C. NIVISON U.S. MAGISTRATE JUDGE.
10, 2017, a jury was selected for the trial in this matter,
which trial was to commence on July 31, 2017. On July 26,
2017, counsel for Defendants Juliet Alexander and Peter
Tinkham notified the court that the matter had been resolved.
The trial scheduled to begin on July 31 was thus cancelled,
and the parties were ordered to file a stipulation of
dismissal within 30 days. (ECF No. 184.)
the parties reported a dispute had arisen regarding some of
the settlement terms. On August 8, 2017, Defendants'
counsel moved to withdraw as counsel for Defendants. (Motion,
ECF No. 190.) After a hearing on the motion, the Court
granted the motion. (Order, ECF 197.) The Court also denied a
subsequent motion to reconsider the order granting
counsel's request to withdraw. (Order, ECF No. 212.)
parties then filed competing motions for sanctions related to
the settlement. (Plaintiffs' Motion, ECF No. 203;
Defendants' Motion, ECF No. 202.) On September 25, 2017,
the Court scheduled a hearing on the pending motions for
sanctions to be held on October 27, 2017. (Order, ECF No.
October 6, 2017, the Court held a telephonic conference to
discuss various issues regarding the October 27 hearing on
the motions for sanctions. During the conference, Defendant Juliet
Alexander appeared pro se; Defendant Peter Tinkham did not
participate. Following the conference, the Court issued an
order to govern the pre-hearing process, including the
designation of witnesses. (Order, ECF No. 211.) On October
11, 2017, Defendants filed a motion in limine (ECF No. 214)
with an accompanying cover letter (ECF No. 214-1), in which
filings Defendants asked the Court to cancel the hearing.
(Motion, ECF No. 214, ¶ 90.) On October 13, 2017, the
Court issued a procedural order, through which order the
Court denied Defendants' request to cancel the hearing.
(Order, ECF No. 216.)
October 24, 2017, Defendants filed a motion entitled,
“Motion to Clarify the Civil Litigant's
Constitutional Right to Counsel.” (Motion, ECF No.
218.) In the motion, Defendants write in part that they
“have no intention” of appearing at the October
27 hearing “without counsel.” (Motion, ¶
16.) In addition, in the cover letter by which Defendants
filed the motion, Defendants assert that they will not be
present for the October 27 hearing. (Letter at 1, ECF No.
218-1.) Defendants represent they have attempted without
success to obtain counsel. (Motion, ¶¶ 17 - 19.)
Defendants further write: “Defendants would appreciate
a court order compelling the federal tort bar to provide
competent representation at its own or at the Court's
expense.” (Motion, ¶ 22.)
Court will address Defendants' request for the Court to
appoint counsel to represent them.
Defendants have a right to have legal representation during
the hearing, “[t]here is no absolute constitutional
right to a free lawyer in a civil case.” DesRosiers
v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The in forma
pauperis statute, however, provides that a court “may
request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). The Court is
thus authorized to appoint counsel if a party demonstrates
that the party is “indigent and that exceptional
circumstances were present such that a denial of counsel was
likely to result in fundamental unfairness impinging on [the
party's] due process rights.” DesRosiers,
949 F.2d at 23.
Defendants have filed several motions to proceed in forma
pauperis, and the Court has denied each motion. Defendants,
therefore, have not established that they are indigent. The
authority under the in forma pauperis statute to appoint
counsel thus is inapplicable.
Defendants established that they are indigent, they are not
entitled to court appointed counsel as the case does not
present the exceptional circumstances necessary for an
appointment. To determine whether exceptional circumstances
exist, “a court must examine the total situation,
focusing, inter alia, on the merits of the case, the
complexity of the legal issues, and the litigant's
ability to represent himself.” DesRosiers, 949
F.2d 24. For example, the presence of “readily mastered
facts and straightforward law” would
“strongly” suggest that a request for counsel
“should be denied in a civil case.” Id.
hearing scheduled for October 27 is to consider evidence and
argument relevant to the parties' motions for sanctions.
The central issue in both motions is whether the parties
reached a binding agreement to settle this action. In their
motion, which Defendants filed pro se, Defendants recite
detailed facts they believe to be relevant to the disputed
issues regarding the settlement. Based on their filings,
Defendants have demonstrated a knowledge of the relevant
facts. In addition, the legal principles that govern the
resolution of the motions are relatively straight forward.
Finally, Defendants' filings throughout this matter
suggest that they are capable of representing themselves.
Under the circumstances, therefore, the appointment of
counsel would not be warranted even if Defendants establish
that they are indigent.
referenced above, Defendants have asserted that they do not
intend to appear for the October 27 hearing. The Court
intends to proceed with the hearing as scheduled. Defendants
are cautioned that their failure to appear for the hearing
could preclude not only their opportunity to be heard further
on the motions for sanctions, but also could preclude their
opportunity to prosecute ...