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    Doc 37 Doc 37 Document Transcript

    • Case 1:11-cv-20120-PAS Document 37 Entered on FLSD Docket 05/31/2011 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CASE NO.: 11-20120-CIV-SEITZ/SIMONTON TRAIAN BUJDUVEANU, Plaintiff, vs. DISMAS CHARITIES, INC., ANA GISPERT, DEREK THOMAS and ADAMS LESHOTA Defendants. _________________________________________/ DEFENDANTS DISMAS CHARTIES, INC., ANA GISPERT, DEREK THOMAS AND ADAMS LESHOTA’S BRIEF IN RESPONSE TO PLAINTIFF’S MOTION FOR APPOINTMENT OF PRO BONO COUNSEL Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Adams Lashanda, incorrectly identified as Adams Leshota (collectively “Defendants”) by and through their undersigned counsel and file their Brief in Response to Plaintiff Traian Bujduveanu’s (“Plaintiff”) Motion to Appoint Pro Bono Counsel and alleges as follows: 1. Plaintiff has again file a Motion for the Appointment of Pro Bono Counsel. (Docket number32). This represents the Plaintiff’s fourth attempt to have the Court appoint legal counsel for the Plaintiff. (See Docket numbers 8, 13 and 21) The Court should deny this fourth attempt for the reasons previously set forth in the Courts prior Orders. (Docket numbers 18 and 28) PROCEDURAL POSTURE 2. On January 31, 2011 Plaintiff filed his first Motion to Appoint Counsel. (Docket number 8) The Plaintiff contended that he needed legal assistance to obtain the return of his
    • Case 1:11-cv-20120-PAS Document 37 Entered on FLSD Docket 05/31/2011 Page 2 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON property. However, the property is available for the Plaintiff to pick up at Dismas, as it always has been. 3. On March 25, 2011, Plaintiff filed his second Motion to Appoint Counsel. (Docket number 13) 4. On March 30, 2011, the Magistrate Judge denied Plaintiffs Motions to Appoint Counsel. (Document number 18) The Court ruled that the Plaintiff failed to satisfy the requirements of 29 U.S.C. 1915(d) as the case was not legally complex or exceptional to warrant the appointment of counsel. The Court stated that the appointment of counsel in civil cases is warranted only in exceptional circumstances. (emphasis supplied.) The Court further found that the Plaintiff, based upon his filings, was able to represent himself as was demonstrated by his ability to conduct research and provide legal allegations without the assistance of counsel. However, the Court raised concerns about the merit, strength and viability of the Plaintiff’s claims. 5. Following the denial of his Motions, the Plaintiff moved for reconsideration on April 8, 2011 (Docket number 21). The fact that the Plaintiff knew how to file and did file a Motion for Reconsideration again demonstrated Plaintiff’s ability to conduct research and provide legal allegations without the assistance of counsel. In his brief, the Plaintiff cited legal cases and statutes further demonstrating his ability to represent himself. 6. On May 20, 2011, United District Court Judge Patricia Seitz denied Plaintiff’s Motion for Reconsideration of his Motion for Appointment of Counsel. (Docket number 28) At the time of the Court’s May 20, 2011 Order, the Plaintiff had filed his complaint and Defendants had filed their Motion to Dismiss. Again, the Court noted that the exceptional circumstances in 2
    • Case 1:11-cv-20120-PAS Document 37 Entered on FLSD Docket 05/31/2011 Page 3 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON this civil case do not rise to the level of exceptional to merit the appointment of counsel. As the Plaintiff failed to provide any newly discovered evidence, change in the law or clear error committed by the Magistrate, who denied his first two motions for the appointment of counsel, the District Court Judge denied Plaintiff’s Motion for Reconsideration and the Appointment of Counsel. ARGUMENT The Plaintiff has now filed his fourth attempt to move for the appointment of counsel on May 23, 2011. (Docket number 32) In essence this Motion represents a Motion for Reconsideration of the Plaintiff’s Prior Motion for Reconsideration. Both the Magistrate and District Court previously denied the Plaintiff’s Motions. The Plaintiff’s latest attempt for reconsideration (of a prior Motion and Order for reconsideration) should similarly be denied. First, the Motion is improper because, as the Court properly stated, “a motion to reconsider will not be granted absent an intervening change in the law, availability of newly discovered evidence or to correct clear error or prevent manifest injustice.” (Docket number 28, page 1 of 2) The Plaintiff’s fourth attempt to obtain pro bono counsel raises the same issues and arguments previously raised and rejected by the Court. The Plaintiff, as he did in his Motion for Reconsideration (Docket Number 21) again contends that he is not financially able to obtain counsel, Dismas is allegedly a company with money and Dismas should be punished for their alleged wrongdoings. The Court should deny Plaintiff’s Motion for the same reasons set forth in the Magistrate and District Court Judge’s previous orders. (Docket numbers 18 and 28) Second, the Plaintiff has again failed to satisfy the requirements of 29 U.S.C. 1915(d) as this case is not legally complex or exceptional to warrant the appointment of counsel. The Court 3
    • Case 1:11-cv-20120-PAS Document 37 Entered on FLSD Docket 05/31/2011 Page 4 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON stated that the appointment of counsel in civil cases is warranted only in exceptional circumstances. (emphasis supplied.) The Plaintiff, based upon his past and present filings, is clearly able to represent himself as is demonstrated by his ability to conduct research, cite cases and provide legal allegations without the assistance of counsel. The mere fact that Defendants now have counsel does not mean the Court has to appoint counsel for the Plaintiff. The fact that Plaintiff contacted 40 law firms and the Florida Bar and was unable to find assistance (Docket number 13) speaks more to the questionable merits of the lawsuit, as was recognized by the Magistrate in the prior Order denying Plaintiff’s Motion for Appointment of Counsel (Docket number 18), than it does to any alleged exceptional issues in this lawsuit. Accordingly, Plaintiff’s fourth attempt to have counsel appointed must be denied as Plaintiff cannot satisfy the requirements for the appointment of pro bono counsel in a civil matter. WHEREFORE, Defendants Dismas Charities, Inc., Ana Gispert, Derek Thomas and Adams Lashanda, incorrectly identified as Adams Leshota respectfully request that Plaintiff’s Motion be denied and that the Court grant any further relief it deems appropriate. EISINGER, BROWN, LEWIS, FRANKEL, & CHAIET, P.A. Attorneys for Defendants 4000 Hollywood Boulevard Suite 265-South Hollywood, FL 33021 (954) 894-8000 (954) 894-8015 Fax BY: /S/ David S. Chaiet____________ DAVID S. CHAIET, ESQUIRE FBN: 963798 4
    • Case 1:11-cv-20120-PAS Document 37 Entered on FLSD Docket 05/31/2011 Page 5 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 31th day of May, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are authorized to receive electronically Notices of Electronic Filing. __/s/ David S. Chaiet_______________ DAVID S. CHAIET, ESQUIRE Florida Bar No. 963798 5
    • Case 1:11-cv-20120-PAS Document 37 Entered on FLSD Docket 05/31/2011 Page 6 of 6 CASE NO.: 11-20120-CIV-SEITZ/SIMONTON SERVICE LIST Traian Bujduveanu v. Dismas Charities, Inc., et al. Case No..: 11-20120-CIV-SEITZ/SIMONTON United States District Court, Southern District of Florida Traian Bujduveanu Pro Se Plaintiff 5601 W. Broward Blvd. Plantation, FL 33317 Tel: (954) 316-3828 Email: orionav@msn.com 6