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ADAMS v. LEVER BROS. CO.

March 12, 1990

CHARLES ADAMS, DEBRA AHERN, JUAN T. BALBOA, JESSE R. BINION, JOHN BRYSON, CRISPIN CUMMINGS, LARRY MARTIN, FRANK McGHEE, WILLIAM MILHOUS, GLORIA PIERCE, EARNEST SPEED, and MARVA WHITE, Plaintiffs,
v.
LEVER BROTHERS COMPANY, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This is an action by several individuals against their former employer for race and sex discrimination in the termination of their employment. Defendant filed a motion for summary judgment on December 8, 1989, which is still pending but is not fully briefed. On January 4, 1990, the Court granted leave to plaintiffs' privately retained counsel, John Gubbins, to withdraw from the case. Pending are motions by most of the plaintiffs for appointment of new counsel. *fn1" For the reasons described below, the Court denies plaintiffs' motions.

 II. THE STANDARD

 In considering whether to appoint counsel, the Court must consider three factors: (1) the plaintiff's financial ability to retain counsel; (2) the plaintiff's diligence in attempting to obtain counsel; and (3) the merits of the plaintiff's claim. Darden v. Illinois Bell Telephone Co., 797 F.2d 497, 500-01 (7th Cir. 1986). Any one of these factors alone may be determinative. Id. at 501. The Court advised plaintiffs of the three factors in open court on January 4, 1990, when the Court instructed them as to how they should apply for appointed counsel if that is how they wished to proceed. The Court shall consider the factors in turn.

 III. FINANCIAL ABILITY

 On January 18, 1990, the Court instructed plaintiffs in open court and by minute order that appointment of counsel would not be considered unless and until plaintiffs completed and submitted in forma pauperis applications. Plaintiffs Charles Adams, John Bryson, Larry Martin, Frank McGhee, William Milhous and Marva White have all completed in forma pauperis applications which demonstrate a financial inability to retain counsel.

 Plaintiff Crispin Cummings submitted an in forma pauperis application which states that he is currently employed and receives a salary of $ 1,358.72 per month. He lists as dependents his wife and four children and states that he makes child support payments on behalf of one of the children. He did not answer the question of how much he contributes to the support of these dependents. The Court assumes, for purposes of this motion, that Cummings is financially unable to retain counsel.

 Plaintiffs Debra Ahern and Ernest Speed did not submit in forma pauperis applications. The Court cannot, therefore, find that they are financially unable to retain counsel.

 The second factor in determining whether appointment of counsel is warranted is a plaintiff's efforts to obtain counsel. The fact that plaintiffs may not be financially able to retain counsel does not establish that they are unable to find counsel at all, for there are attorneys who are willing to accept cases on a contingency-fee basis or pro bono basis. Where a plaintiff does not attempt to seek out such opportunities for representation, denial of a motion for appointment of counsel is appropriate. See, e.g., Hale v. North Little Rock Housing Authority, 720 F.2d 996, 998 (8th Cir. 1983). In this case, none of the plaintiffs answered the question on the appointment of counsel form which calls for the plaintiff to list the attempts which have been made to obtain counsel. *fn2"

 V. MERITS OF PLAINTIFFS' CLAIMS

 Defendant argues that plaintiffs' claims are frivolous and thus do not support the appointment of counsel, relying on the same arguments presented in the pending motion for summary judgment. Because that motion is not fully briefed at this time, the Court will not make a final ruling on the merits of the case. However, the Court must make a preliminary examination of the merits in order to consider the third factor for appointment ...


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