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Ojelade v. Unity Health Care, Inc.

United States District Court, District Circuit

August 27, 2013

FOLASHADE J. OJELADE, Plaintiff,
v.
UNITY HEALTH CARE, INC., Defendant. Re Document Nos. 3, 9, 10, 13

MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge

DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL; DENYING DEFENDANT’S MOTION TO STRIKE RETURN OF SERVICE; DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT; AND DENYING DEFENDANT’S MOTION TO STRIKE SUPPLEMENTAL RETURN OF SERVICE

I. INTRODUCTION

This litigation arises out of an employment discrimination dispute between the plaintiff, proceeding pro se, and her former employer. After the defendant moved to dismiss the complaint, the plaintiff filed a motion for appointment of counsel. Because the plaintiff has not sufficiently demonstrated her need for court-appointed counsel, the Court will deny the motion without prejudice.

There are also several service-related motions pending before the Court. After the defendant’s initial motion to dismiss complained of insufficient service of process pursuant to Federal Rules of Civil Procedure 4 and 12(b)(5), the plaintiff attempted to re-serve her complaint via certified mail and filed two affidavits of service. The defendant moves to strike both affidavits. The plaintiff moves for default judgment based on the defendant’s failure to respond to the complaint. Because the plaintiff did not properly effect service in accordance with Federal Rule of Civil Procedure 4(c)(2), the Court will grant the motions to strike and deny the motion for default. However, the Court will, sua sponte, grant the plaintiff a 60-day extension to effect service of process.

II. FACTUAL BACKGROUND

On December 6, 2012, Folashade J. Ojelade (“Plaintiff”) filed a pro se complaint against her former employer, Unity Health Care, Inc. (“Defendant”), alleging employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, failure to accommodate under the Americans with Disabilities Act and the Rehabilitation Act, violation of the Family and Medical Leave Act, and wrongful termination under D.C. law. See Compl., ECF No. 1. Defendant then filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b), which is pending before the Court. See Def.’s Mot. Dismiss, ECF No. 2. Plaintiff now seeks court-appointed counsel, alleging in her single-page motion that she has “not been able to obtain a permanent job” since her employment with Defendant ended. See Pl.’s Mot. Appt. Counsel, ECF No. 3.

Defendant’s motion to dismiss complains of, inter alia, insufficient service of process under Federal Rules of Civil Procedure 4 and 12(b)(5) on the basis that the documents were served via mail, but the envelope was not addressed to an individual who is authorized to receive service. See Def.’s Mem. Supp. Mot. Dismiss 5, ECF No. 2. Acknowledging the defect, see Pl.’s Resp. Mot. Dismiss, ECF No. 4, Plaintiff mailed the summons and complaint to Defendant’s counsel on April 18, 2013. See Return Serv. Ex. 1, ECF No. 8-1. The postal tracking information indicates that the documents were delivered on April 19, 2013. See Id . On May 3, 2013, Plaintiff filed an affidavit and return of service with evidence of the April mailing. See Return Serv., ECF No. 8. On June 12, 2013, Plaintiff filed a supplemental affidavit and return of service asserting that she again mailed the summons and complaint to Defendant’s counsel on June 6, 2013. See Supp. Return Serv., ECF No. 12. Plaintiff complains that she did not receive a signed return receipt and moves for default judgment on that basis. See Return Serv., ECF No. 8; Pl.’s Mot. Default J., ECF No. 10. Defendant moves to strike both of Plaintiff’s affidavits. See Def.’s Mot. Strike Return Serv., ECF No. 9; Def.’s Mot. Strike Supp. Return Serv., ECF No. 13.

III. PLAINTIFF’S MOTION TO APPOINT COUNSEL

A. Legal Standard

A civil plaintiff is not guaranteed counsel. See Gaviria v. Reynolds, 476 F.3d 940, 943 (D.C. Cir. 2007). However, federal courts are authorized by statute to “request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1) (2006); accord Willis v. FBI, 274 F.3d 531, 532 (D.C. Cir. 2001). In determining whether it is appropriate to appoint counsel to a pro se litigant proceeding in forma pauperis, [1] courts in this district consider the following factors:

(i) the nature and complexity of the action;
(ii) the potential merit of the pro se party’s claims;
(iii) the demonstrated inability of the pro se party to retain counsel ...

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