Opinion
05 Civ. 9920 (KMW) (HBP).
July 6, 2006
MEMORANDUM OPINION AND ORDER
By motion dated December 11, 2005 (Docket Item 7) plaintiff moves for pro bono counsel. For the reasons set forth below, the motion is denied without prejudice to renewal.
In a civil case, such as this, the Court cannot actually "appoint" counsel for a litigant. Rather, in appropriate cases, the Court submits the case to a panel of volunteer attorneys. The members of the panel consider the case, and each decides whether he or she will volunteer to represent the plaintiff. If no panel member agrees to represent the plaintiff, there is nothing more the Court can do. See generally Mallard v. United States District Court, 490 U.S. 296 (1989). Thus, even in cases where the Court finds it is appropriate to request volunteer counsel, there is no guarantee that counsel will actually volunteer to represent plaintiff.
The factors to be considered in ruling on a motion for pro bono counsel are well settled and include "the merits of plaintiff's case, the plaintiff's ability to pay for private counsel, [plaintiff's] efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel."Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1986). Of these, "[t]he factor which command[s] the most attention [is] the merits." Id. Accord Odom v. Sielaff, 90 Civ. 7659 (DAB), 1996 WL 208203 (S.D.N.Y. April 26, 1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful service if they appoint a volunteer lawyer to a case which a private lawyer would not take if it were brought to his or her attention. Nor do courts perform a socially justified function when they request the services of a volunteer lawyer for a meritless case that no lawyer would take were the plaintiff not indigent.Cooper v. A. Sargenti Co., supra, 877 F.2d at 174. See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) ("`In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance.'").
For purposes of resolving the present motion, I am willing to assume that plaintiff lacks the financial resources to retain counsel. Nevertheless, his application entirely fails to address any of the other factors relevant to determining whether a case should be added to the list of cases circulated to the pro bono panel. First, it does not appear that plaintiff has made any efforts on his own to secure pro bono counsel or counsel willing to represent him on a contingent fee basis. Second, it doe not appear, at least at this preliminary stage, that plaintiff's case has sufficient merit to be the added to the list of cases circulated to the pro bono panel. This case is one of a number of unsuccessful cases plaintiff has commenced alleging infringement of a design patent that he holds for a folding cellular telephone. I have reviewed the drawings of plaintiff's design and compared them to defendant's accused telephone. Given the limited scope of protection afforded a design patent, it appears, at least preliminarily, that defendant has a far stronger case than plaintiff; there appear to be substantial differences between the non-functional features of plaintiff's design and defendant's design.
Other cases in which plaintiff has unsuccessfully asserted his patents include Kyocera Wireless Co. v. President Elecs., Ltd., No. 06-1131, 2006 WL 1153583 (Fed. Cir. May 2, 2006);Colida v. Sharp Elecs. Corp., 125 Fed. Appx. 993 (Fed. Cir. 2005); Colida v. Qualcomm Inc., 128 Fed. Appx. 765 (Fed. Cir. 2005); Colida v. Sanyo N. Am. Corp., 118 Fed. Appx. 501 (Fed. Cir. 2004); Kyocera Wireless Corp. v. President Elecs., Ltd., 116 Fed. Appx. 282 (Fed. Cir. 2004); Colida v. Matsushita Elec. Corp. for Am., 114 Fed. Appx. 383 (Fed. Cir. 2004); Colida v. Ericsson, Inc., 93 Fed. Appx. 220 (Fed. Cir. 2004); Colida v. Sony Corp., 70 F.3d 130 (Fed. Cir. 1995); Colida v. Sony Corp. of Am., 04 Civ. 2093 (RJH), 2005 WL 267231 (S.D.N.Y. Feb. 3, 2005); Colida v. NEC USA, Inc., 03 Civ. 9025 (RJH) (JCF), 2005 WL 267417 (S.D.N.Y. Feb. 3, 2005), aff'd without opinion, 141 Fed. Appx. 913 (Fed. Cir. 2005).
Accordingly, plaintiff's motion for pro bono counsel is denied without prejudice to renewal. Any renewed motion should be accompanied by an affidavit addressing the merits of plaintiff's claim.
SO ORDERED