PELLECCHIA v. PRINCETON UNIVERSITY BOARD OF TRUSTEES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARK J. PELLECCHIA,

Civ. No. 23-21828 (GC)(JBD)

Plaintiff,

v. MEMORANDUM ORDER

PRINCETON UNIVERSITY BOARD

OF TRUSTEES,

Defendant.

This matter comes before the Court by way of a motion filed by pro se

plaintiff Mark J. Pellecchia for the appointment of pro bono counsel pursuant to

28 U.S.C. § 1915(e)(1). [Dkt. 9.] For the reasons set forth below, Pellecchia’s motion

is denied without prejudice.

I. PROCEDURAL HISTORY

On October 30, 2023, Pellecchia filed a complaint against defendant

Princeton University Board of Trustees (“Princeton”) in the Superior Court of New

Jersey, Mercer County. Pellecchia asserted various tort claims and alleged that

Princeton caused him to suffer psychological distress. [Dkt. 1] at 7-19. Princeton

removed the action to this Court on November 2, 2023. [Dkt. 1.]

On December 4, 2023, Princeton moved to dismiss Pellecchia’s complaint.

[Dkt. 5.] After Pellecchia failed to respond timely to that motion, the Court, on

January 8, 2024, ordered Pellecchia to submit a response to Princeton’s motion by

January 26, 2024. [Dkt. 8.] Pellecchia thereafter filed the instant motion to

appoint pro bono counsel on January 12, 2024 [Dkt. 9], and his opposition to

Princeton’s motion to dismiss on January 19, 2024. [Dkt. 10.] Princeton filed its

reply on January 22, 2024. [Dkt. 11.] Princeton’s motion to dismiss remains

pending before this Court.

On May 16, 2024, Pellecchia filed a motion for “injunction from harassment”

[Dkt. 14], which the Court denied on May 21, 2024 for failure to state a plausible

basis for injunctive relief. [Dkt. 15.] Pellecchia then filed a similar motion for

“injunction from e-harassment” on May 31, 2024. [Dkt. 16.] The Court denied

Pellecchia’s second injunction request on June 5, 2024 for the same reason it denied

his first. [Dkt. 18.]

II. DISCUSSION

Although there is no constitutional right to counsel for litigants in a civil

matter, 28 U.S.C. § 1915(e)(1) provides the Court with the discretion to “request an

attorney to represent any person unable to afford counsel.” See Parham v. Johnson,

126 F.3d 454, 457 (3d Cir. 1997) (citations omitted). However, “[b]efore the court is

justified in exercising its discretion in favor of appointment, it must first appear

that the claim has some merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155

(3d Cir. 1993) (citations omitted). Where the Court has determined, as a threshold

matter, “that the plaintiff's claim has arguable merit in fact and law,” the Court

then must consider six additional factors (the “Tabron factors”) to determine

whether a matter warrants the appointment of pro bono counsel. Id.; see also

Parham, 126 F.3d at 457. The Tabron factors are: (1) the ability of the plaintiff

“to present his or her case”; (2) the difficulty and complexity of the legal issues in

the matter; (3) the amount of factual investigation required and the plaintiff's

ability to pursue that factual investigation, and whether the claims will require

extensive discovery and compliance with complex discovery rules; (4) whether the

issues will rely heavily on testimony and thus turn on credibility determinations;

(5) whether expert witness testimony will be required; and (6) whether the plaintiff

can attain and afford to retain counsel. Tabron, 6 F.3d at 156; Parham, 126 F.3d at

457.

The Court must weigh these factors against the extreme value of a pro bono

lawyer’s time, remaining mindful that “[v]olunteer lawyer time is a precious

commodity . . . . Because this resource is available in only limited quantity, every

assignment of a volunteer lawyer to an undeserving client deprives society of a

volunteer lawyer available for a deserving cause. We cannot afford that waste.”

Tabron, 6 F.3d at 157 (second alteration in original) (quoting Cooper v. A. Sargenti

Co., 877 F.2d 170, 172 (2d Cir. 1989)). Thus, “appointment of counsel remains a

matter of discretion . . . and the determination must be made on a case-by-case

basis.” Id. at 157-58.

As a threshold matter, the Court typically begins by determining whether the

claims have “some merit in fact and law.” Id. at 155. The merits of Pellecchia’s

claims, however, will be addressed when the Court resolves Princeton’s pending

motion to dismiss. [Dkt. 5.] Thus, the Court instead proceeds directly to apply the

six Tabron factors. See Markferding v. Markferding, Civ. No. 21-13368 (MCA),

2021 WL 5711591, at *1 (D.N.J. Dec. 1, 2021); Nadal v. Christie, Civ. No. 13-5447

(RBK), 2013 WL 6331058, at *2-3 (D.N.J. Dec. 4, 2013); Clayton v. Clement, Civ. No.

06-5426 (RMB), 2007 WL 1741758, at *2 (D.N.J. June 14, 2007).

The first Tabron factor—the plaintiff’s ability to present his own case—

requires the Court to “consider the plaintiff’s education, literacy, prior work

experience, and prior litigation experience,” as well as whether the plaintiff is able

to understand English. Tabron, 6 F.3d at 156. Here, as evidenced by his filings,

Pellecchia appears to be able to read, write, understand English, and to understand

the legal process. For example, Pellecchia has thus far filed a complaint in the

Superior Court of New Jersey, an opposition to Princeton’s motion to dismiss

[Dkt. 10], two motions for injunctive relief, and the instant motion to appoint pro

bono counsel. [Dkt. 9.] Pellecchia is also the plaintiff in a matter pending before

the United States District Court for the District of Colorado. See [Dkt. 14] at 2;

Pellecchia v. Fidelity Investments, Civ. No. 23-635 (PAB) (D. Colo.). Overall, these

filings indicate, at least at this stage, that Pellecchia is literate and able to present

his case. See Burt v. Hicks, Civ. No. 20-19459 (NLH), 2021 WL 3207729, at *3

(D.N.J. July 29, 2021). This factor thus weighs against appointing counsel.

The second Tabron factor requires the Court to consider “the difficulty of the

particular legal issues,” especially where the law is not clear. Tabron, 6 F.3d at

156. Pellecchia asserts various tort claims involving alleged harassment by

Princeton. See [Dkt. 1] at 7-19. At this juncture, the legal issues in this case

appear straightforward. Nevertheless, it is too early in the litigation to determine

whether they are sufficiently complex to warrant the appointment of pro bono

counsel. Thus, this factor weighs against the appointment of pro bono counsel at

this time. See Jenkins v. D’Amico, Civ. No. 06-2027 (JAP), 2006 WL 2465414, at *1-

2 (D.N.J. Aug. 22, 2006) (noting, where the plaintiffs’ complaint was recently filed,

that “the factual and legal issues ‘have not been tested or developed by the general

course of litigation, making [a number of factors] . . . particularly difficult to

evaluate,’” and determining that the plaintiffs had not demonstrated the complexity

of legal issues, or most of the other Tabron factors, at that early stage of the

proceedings) (first alteration in original) (quoting Chatterjee v. Philadelphia Fed’n of

Teachers, 2000 WL 1022979, at *1 (E.D. Pa. July 18, 2000)).

As for the third factor, the Court considers “the degree to which factual

investigation will be necessary and the ability of the plaintiff to pursue such

investigation.” Parham, 126 F.3d at 457. Here, Pellecchia argues that he requires

pro bono counsel to assist with, inter alia, following procedure, conducting

depositions, and “storage of case evidence.” [Dkt. 9] at 3. Because this matter is

still at the pleading stage and discovery has not yet begun, it is too early to know

the extent of investigation required or whether such investigation necessitates

assistance of counsel. See Nadal, 2013 WL 6331058, at *3 (stating, where the

matter had not progressed to discovery and there was a pending motion to dismiss,

that “[e]ven if [p]laintiff must engage in discovery, unless and until he is faced with

issues that impede his ability to do so, he cannot show that this factor weighs in

favor of requesting pro bono counsel”). Moreover, as he has not indicated otherwise,

Pellecchia presumably has access to the ordinary discovery tools made available to

litigants by the Federal Rules of Civil Procedure. See Hohsfield v. Staffieri, Civ. No.

21-19295 (RK), 2024 WL 2956479, at *2 (D.N.J. June 11, 2024); Archie v. Mercer

Cnty. Courthouse, Civ. No. 19-20976 (ZNQ), 2021 WL 5422289, at *3 (D.N.J.

Oct. 26, 2021) (finding that non-incarcerated plaintiff was able to conduct necessary

factual investigation through “ordinary discovery methods”). Accordingly, this

factor does not weigh in favor of appointing counsel at this time.

Likewise, it is too early in the proceedings to determine the fourth Tabron

factor, which “will only weigh in favor of the appointment of counsel where the trial

is expected to be ‘solely a swearing contest.’” Burt, 2021 WL 3207729, at *4 (quoting

Montgomery v. Pinchak, 294 F.3d 492, 505 (3d Cir. 2002)). This factor does not

weigh in favor of appointing counsel at this time. See id. (determining the fourth

factor to be neutral because the court could not answer whether the case would turn

on credibility at that time).

Neither does Pellecchia assert, nor can the Court determine, that expert

witness testimony will be required, rendering the fifth Tabron factor neutral as

well.

Finally, as for the sixth Tabron factor, whether the plaintiff can attain and

afford to retain counsel, Pellecchia asserts in his motion that despite “[m]ultiple

calls to several law firms,” he has been unable to secure representation, in that the

“one firm that was willing to assist was not affordable.” [Dkt. 9] at 3. Pellecchia

further asserts that he is “under financial attack” and facing impending eviction.

[Dkt. 14] at 1-2. Aside from these assertions, Pellecchia has not provided specific

financial information to aid the Court in determining his ability to retain counsel.

Thus, this factor does not weigh in favor of appointing pro bono counsel.

On the whole, the Tabron factors do not warrant appointing counsel at this

time. The Court will therefore deny Pellecchia’s motion for the appointment of pro

bono counsel without prejudice. The Court notes that pro bono counsel may be

appointed at any stage of the litigation. Tabron, 6 F.3d at 156. Should any of

Pellecchia’s claims remain intact after the Court decides Princeton’s pending motion

to dismiss, Pellecchia may renew his motion for the appointment of pro bono

counsel, explaining with specificity why the Tabron factors weigh in favor of

appointing pro bono counsel.

II. CONCLUSION

For the foregoing reasons,

IT IS on this 16th day of July, 2024,

ORDERED that Pellecchia’s motion for the appointment of pro bono counsel

[Dkt. 9] is DENIED without prejudice; and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Order on

Pellecchia by regular U.S. mail.

J. BRENDAN DAy

UNITED STATES MAGISTRATE JUDGE