Estate of BG Petroleum v. BG Petroleum, LLC (In re BG Petroleum, LLC)

619 B.R. 320

IN RE: BG PETROLEUM, LLC, Debtor.

The Estate of BG Petroleum By and through Chapter 7 Trustee, Lisa Swope, and Timco, Ltd., Plaintiffs,

v.BG Petroleum, LLC, et al., Defendants.

Bankruptcy No. 13-70334-JAD

Adversary No. 19-07014-JAD

United States Bankruptcy Court, W.D. Pennsylvania.

Signed September 03, 2020.

Matthew M. Herron, The Debt Doctors, LLC, Nicholas A. Miller, Herron Business Law, Pittsburgh, PA, Mitchell Jay Rotbert, Rotbert Business Law P.C., Gaithersburg, MD, for Plaintiffs.

Kevin J. Petak, Spence Custer Saylor Wolfe & Rose, LLC, Johnstown, PA, for Defendants Simmons Realty Company, Inc., Sunco Enterprises, Inc., Bedford County Oil Company, Inc., Clinton D. Simmons, Robert K. Simmons, The Estate of Loretta M. Simmons, Thomas Watters, Ladonna Watters.

Kevin J. Petak, James R. Walsh, Esq., Spence Custer Saylor Wolfe & Rose, LLC, Johnstown, PA, for Defendant Nyle and Joan Mellott.

Samuel R. Grego, Dickie, McCamey & Chilcote, Pittsburgh, PA, for Defendants William J. Miller, Jr., Mary O. Miller, Attilio S. DeMarco, Diane N. DeMarco, MW Family Holdings, LLC, DeMarco Famiglia Holdings, LLC, Breezewood Venture, LLC, Bedford Holdings, LLC, Breezewood Leasing Company, LLC, PA HR Services, LLC, Breezewood Enterprises, LLC, Bedford Asset Leasing Company, LLC, Bedford Asset Leasing Company, LLC, 4355 Business 220, LLC, 201 Jefferson Street, LLC, 720 Lincoln Highway, LLC, Tristar Petroleum, LLC.

Gerald P. Dever, Severna Park, MD, pro se.

Unknown Entities, pro se.

John Doe 1-20, pro se.

MEMORANDUM ORDER

The Honorable Jeffery A. Deller, United States Bankruptcy Judge

On September 1, 2020, defendant Mr. Gerald P. Dever filed with the Court a letter dated August 28, 2020.

The letter is relatively short, and within the letter Mr. Dever states: "I can no longer represent myself with respect to the subject case." He further writes that, despite filing pleadings and participating in the case, "[t]his proceeding now requires legal knowledge that only an attorney possesses."

The letter further states that Mr. Dever does not have the financial means for an attorney and therefore "cannot represent myself further in these proceedings." The letter closes by Mr. Dever agreeing that he will "continue to participate in the proceeding as outlined in [the Court's] case management order."

Having received this letter, the question presented is whether the Court should take any action with respect to it? For example, should the letter be deemed or construed to be an agreement by Mr. Dever that the plaintiffs may obtain an uncontested judgment against him? Alternatively, should the letter be construed as requesting something else?

The U.S. Supreme Court has held that a pro se pleading, "however in artfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).

With this standard in mind, the Court is not required to assume the role of advocate on behalf of a pro se party. Merryfield v. Jordan, 584 F.3d 923, 924 n. 1 (10th Cir. 2009). Nonetheless, courts applying the liberal pleading requirement have concluded that courts interpret a pro se pleading as raising the "strongest argument that [it] suggest[s]." Caro v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010) (citing Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d. Cir. 2006) and Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ).

As one court observed, "[i]mplicit in the right of self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

With due consideration of these precepts, the Court is not inclined to treat the letter as an invitation by Mr. Dever for entry of an uncontested judgment against him. The Court reaches this conclusion because Mr. Dever has filed an extensive answer to the third amended complaint, and nothing in the letter reflects an agreement or admission by Mr. Dever that judgment should be entered against him.

A fair construction of the letter is that Mr. Dever is asking that the Court appoint pro bono counsel to represent his interests in this civil action. Unfortunately, this request must be denied because, unlike defendants in criminal cases, aggrieved defendants in a civil actions have no Constitutional right to counsel. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). As the Third Circuit Court of Appeals held:

The Supreme Court has not recognized nor has the court of appeals found a constitutional right to counsel for civil litigants. See, e.g., Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.1993) ("Appointment of counsel in a civil case is not a constitutional right.") (internal quotations and citations omitted); Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.1990) (same); United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir.1986) ("There is normally ... no constitutional right to counsel in a civil case."). Additionally, civil litigants do not even have a statutory right to appointed counsel. Tabron v. Grace, 6 F.3d 147, 153 (3d Cir.1993).

Parham, 126 F.3d at 456-57.

Notwithstanding the fact that a civil litigant has no Constitutional right to counsel, 28 U.S.C. § 1915(e)(1) states that the "court may request an attorney to represent any person unable to afford counsel."¹ At present, however, the Court is not inclined to make such a request. There are a number of reasons for the Court's decision in this regard.

First, Mr. Dever has not made the threshold showing that he is indigent. For example, he has not filed the requisite affidavit(s) required by 28 U.S.C. § 1915(a). Therefore, Mr. Dever has not alleged sufficient facts demonstrating that he is eligible to proceed in forma pauperis and has not supplied the Court with a sufficient record demonstrating that Mr. Dever has standing to ask that the Court make the extraordinary request to appoint civil counsel.²

Second, assuming for sake of argument that Mr. Dever is indigent and has standing to file such a motion asking for appointment of counsel, nothing in Mr. Dever's letter articulates the merits of such a request pursuant to the standards elucidated by the Third Circuit Court of Appeals in Parham v. Johnson, supra. and Tabron v. Grace, supra.

Third, even if Mr. Dever's letter contained a sufficient basis meriting the Court "requesting" that counsel represent Mr. Dever, the Court is not aware of any attorney who is willing to undertake representation of Mr. Dever on a pro bono basis.³ In fact, while various bar associations have volunteer attorneys who are willing to undertake pro bono or reduced fee representations,⁴ nothing in Mr. Dever's letter reflects whether there are any volunteer attorneys who are willing to enter an appearance on his behalf and the Court does not have a stand-by panel of volunteer attorneys at its disposal. Under these circumstances, the Court is not in a position to grant Mr. Dever's motion.

Finally, the Court's decision is particularly appropriate in light of Mallard v. United States District Court for the S. Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), where the Supreme Court held that § 1915 does not authorize a federal court to require an unwilling attorney to represent an indigent civil litigant because the operative word in the statute is "request" and not some other compulsory word such as "shall" or "must."

For all of the foregoing reasons, the Court hereby denies without prejudice⁵ Mr. Dever's request for appointment of counsel.

SO ORDERED, this 3rd day of September, 2020.

1 It has also been held that this statute does not authorize expenditure of federal funds to appoint civil counsel. See Dep't Banking & Finance, State of Nebraska v. Copple, 84 B.R. 163, 164 (Bankr.D.Neb.1988).

2 In the course of issuing this Memorandum Order, the Court recognizes that parties appearing pro se are afforded a greater amount of leniency in comparison to counseled litigants. See e.g. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) ; see also Compton v. Moschell (In re Moschell), 607 B.R. 487, 494–95 (Bankr. W.D. Pa. 2019). Such leniency is not without limitation. See United States v. Gregg, C.A. No. 12-322, 2013 WL 6498249, at *4 (W.D. Pa. Dec. 11, 2013) ("However, the Court may not be co-opted by a pro se litigant to perform tasks normally carried out by hired counsel.... Providing assistance or ‘[e]xtending too much procedural leniency to a pro se litigant risks undermining the impartial role of the judge in the adversary system.;’ " (citations omitted)). For example, courts have noted that the special solicitude afforded to pro se litigants can be lessened where the litigant has prior legal experience. See, e.g. Tracy v. Freshwater, 623 F.3d 90, 102-03 (2d Cir. 2010). Indeed, the United States Supreme Court has held that trial court judges have "no...