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Guardian Life Insurance Co. v. Weil

October 12, 2010

THE GUARDIAN LIFE INSURANCE CO.
v.
WEIL, ET AL.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Philip G. Reinhard than Assigned Judge P. Michael Mahoney

DOCKET ENTRY TEXT:

Nieves' and Coles' motions to proceed in forma pauperis [27][25] are denied without prejudice. Nieves' and Coles' motions for the appointment of counsel [40][41] are denied. The motion to appoint counsel [39] and motion to appoint a guardian ad litem [46] as to S.O.B., a minor, are granted. The motion to appoint counsel [42] and motion to appoint a guardian ad litem [45] as to Daley are granted. The court appoints Frank A. Perrecone, Ferolie & Perrecone, Ltd., 321 West State Street, Suite 800, Rockford, Illinois 61101, (815) 962-2700, to represent the interests of defendants S.O.B. and Daley.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

This case is an interpleader action brought by the Guardian Life Insurance Company of America ("Guardian") against Stephen M. Weil ("Weil"), Ryann E. Nieves ("Nieves"), Brady T. Coles ("Coles"), S.O.B., a minor ("S.O.B."), and Ronald C. Daley ("Daley"). A dispute arose as to life insurance benefits resulting from the death of Paula Helms, mother to Nieves, Coles, S.O.B. and Daley, and partner of Weil. Helms had designated beneficiaries as follows: Weil (50%), Nieves (12.5%), Coles (12.5%), S.O.B. (12.5%), and Daley (12.5%). Subsequent to her death, Nieves, Coles, and Daley were each distributed their 12.5% ($12,527.98) share, and an additional 12.5% ($12,527.97) was held by Guardian to be paid to a designated legal guardian or to S.O.B. when the minor attains the age of majority. As to the remaining 50% ($50,000), Nieves alleges Weil voluntarily relinquished his claim to the benefits. Weil disputes the allegation and seeks payment of the benefits. In order to avoid multiple litigation and/or multiple liability, Guardian was allowed by order of the court to deposit $50,000 in unpaid insurance benefits plus interest with the clerk of the court.

On July 26, 2010, Nieves and Coles filed motions to appear in forma pauperis [27][25]. On September 20, 2010, Nieves filed pro se motions to appoint counsel [39][40][41][42] on behalf of Nieves, Coles, Daley, and S.O.B. On the same day, Nieves filed motions for the appointment of a guardian ad litem

[45][46] on behalf of Daley and S.O.B., alleging that S.O.B. is a minor and that Daley lacks the capacity to represent himself as a result of a diagnosis of schizophrenia. The court will now address all eight motions.

Nieves' motion to proceed in forma pauperis [27] is denied without prejudice. Nieves represented to the court that she has no more than $500 in cash, checking, or savings accounts and that she is financially responsible for two unemployed relatives and one minor relative. However, Nieves indicated that she has not received more than $200 in the twelve months preceding July 23, 2010 from any source, including life insurance. This conflicts with Guardian's representation to the court that it provided a check in the amount of $12,527.98 to Ryann Esther Nieves subsequent to Helms' death on July 31, 2009. The court does not have sufficient information to resolve the conflicting information at this time, and therefore denies the motion without prejudice.

Coles' motion to proceed in forma pauperis [25] is denied without prejudice. Coles represented that he is unemployed, is no longer receiving unemployment payments, and has a minor sibling residing with him for whom he, along with Nieves, are financially responsible. As with Nieves, Coles has created a similar conflict by representing on his in forma pauperis application that he did not receive a check for $12,527.98 that Guardian says it distributed. Without further information, the court will similarly deny his motion.

As to the motions to appoint counsel, the court notes that civil litigants do not have a constitutional or statutory right to counsel in federal court. Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). However, a party who is unable to afford counsel may request that the court appoint counsel for them pursuant to 28 U.S.C. § 1915(e)(1). Attorneys appointed pursuant to this statute are generally not paid for their services. Once the party makes a preliminary showing that he is unable to afford counsel and that his reasonable efforts to retain private counsel on his own were unsuccessful, it is then discretionary on the part of the court whether appointment of counsel is warranted. See Johnson, 433 F.3d at 1006. That discretion is guided by Local Rule 83.36, which takes the following factors into account:

(1) the potential merit of the claims as set forth in the pleadings;

(2) the nature and complexity of the action, both factual and legal, including the need for factual investigation;

(3) the presence of conflicting testimony calling for a lawyer's presentation of ...


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