United States District Court, M.D. Louisiana
DAVID DEROUEN, SR.
SRG, LLC d/b/a Popeye's
RULING AND ORDER ON MOTION TO APPOINT COUNSEL IN CASE
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
the court is a Motion to Appoint Counsel in a Case on
Appeal. For the reasons that follow, the Motion to
Appoint Counsel is DENIED.
David Derouen, Sr. (“Plaintiff”), filed a
Complaint in this matter on June 28, 2016 against the SRG,
LLC d/b/a Popeye's alleging age discrimination and
retaliation in violation of federal and state
laws. That same date, Plaintiff filed a Motion
to Proceed In Forma Pauperis (the “IFP
Motion”). At that time, Plaintiff was represented by
counsel. The undersigned granted Plaintiff's IFP Motion
on June 30, 2016.
1, 2017, counsel for Plaintiff filed a Motion to Withdraw as
Attorney, which indicates that Plaintiff terminated the
representation of prior counsel. On June 7, 2017 the Motion
to Withdraw as Attorney was granted permitting
Plaintiff's prior counsel to withdraw from the
2, 2017 (while the Motion to Withdraw as Attorney was
pending), this Motion to Appoint Counsel in a Case on Appeal
was filed. The Motion to Appoint Counsel simply
states, “Judge deGravelles to appointed [sic] attorney
for Mr. Derouen.” Attached to the Motion to Appoint
Counsel is the Motion to Withdraw as Attorney. Plaintiff also
filed a Motion for Leave to Appeal in forma pauperis (the
“Appeal IFP Motion”).
June 2, 2017, Plaintiff filed a Notice of
Appeal. The Notice of Appeal states plaintiff
seeks to appeal from a “settlement order” entered
on June 2, 2017. A review of the docket in this matter
shows there is no settlement order of any kind. The only
references to a settlement are the deadline in the Scheduling
Order for parties to request a conference with the assigned
magistrate judge and the deadline to submit an affidavit of
settlement efforts to the district judge. Additionally,
there has not been any dispositive ruling in this matter.
Accordingly, plaintiff has no appeal of right, nor has
plaintiff sought or been granted a permissive appeal. For
these reasons, the undersigned denied Plaintiff's request
to institute an appeal in forma pauperis and
certified in writing that the appeal was not taken in good
faith pursuant to 28 U.S.C. § 1915(a)(3).
28 U.S.C. § 1915(e)(1), a court “may request an
attorney to represent any person unable to afford
counsel.” Under § 1915(e)(1), “federal
courts are given the power to request that an attorney
represent an indigent plaintiff.” Cole v.
Sheriff's Office of Lafayette Parish, 2011 WL
1752086, *4 (W.D. La. April 6, 2011). In light of the fact
Plaintiff's request to institute an appeal in this matter
in forma pauperis was denied, Plaintiff is not
proceeding in forma pauperis for purposes of appeal
and, therefore, Plaintiff is not entitled to appointment of
counsel for purposes of the appeal.
were Plaintiff's request for appointment of appeal
counsel to be considered under § 1915(e)(1), counsel
would not be appointed. “[T]he court is not required to
make this request in the absence of ‘exceptional
circumstances.'” Id. (citing Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982)). See
also, Branch v. Cole, 686 F.2d 264, 266 (5th
Cir. 1982) (“The existence of exceptional circumstances
will turn on the quality of two basic factors - the type and
complexity of the case, and the abilities of the individual
determining whether a plaintiff is entitled to have a court
request that counsel assist him in suit, numerous factors are
considered, including: (1) the type and complexity of the
case; (2) whether the indigent plaintiff is capable of
adequately presenting his case; (3) whether the indigent
plaintiff is in a position to investigate adequately the
case; and (4) whether the evidence will consist largely of
conflicting testimony so as to require skill in presentation
of the evidence and cross examination. Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). Courts
should also consider whether appointment of counsel would be
a service to the parties and the court “by sharpening
the issues in the case, shaping the examination of witnesses,
and thus shortening the trial and assisting in a just
determination.” Id. Finally, the court may
consider plaintiff's efforts, if any, to secure private
counsel. Id. See also, Cole v.
Sheriff's Office of Lafayette Parish, 2011 WL
1752086, *5 (W.D. La. April 6, 2011). The plaintiff
“ultimately bears the burden of persuasion as to the
necessity of such an appointment.” Margin v. Social
Sec. Admin., 2009 WL 3673025, *1 (E.D. La. Oct. 28,
2009) (citing Caston v. Sears, Roebuck & Co.,
556 F.2d 1305, 1309 (5th Cir. 1977), overruled on other
grounds, Holt v. Ford, 862 F.2d 850 (11th Cir.
has not provided any information here to permit an analysis
of the Ulmer factors. Therefore, Plaintiff has not
met his burden of establishing that this is an
“exceptional circumstance” necessitating that the
court request an attorney to represent him.
IT IS HEREBY ORDERED that the Motion to Appoint Counsel in a
Case on Appeal is DENIED.
 R. Doc. 23.