Cajero Torres v. Sushi Sushi Holdings Inc.

Background

Plaintiffs asserted claims under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), including claims that the defendants failed to pay minimum wage and overtime. The defendants denied the claims. The individual defendants, Igor Grinberg and Angeline Herrera, said they could not pay their original retained counsel or any other lawyer. The court found those statements credible and treated the defendants as unable to afford counsel.

The case was close to trial, and no party had filed a motion asking the court to resolve the claims before trial. The individual defendants disputed, among other things, whether Herrera had a managerial role that could make her an employer under the FLSA or NYLL. They also described evidence they believed showed they were not liable. The court noted that little fact discovery had been taken and that the parties had sharply conflicting positions about the basic facts.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a federal court may ask a lawyer to volunteer to represent a person who cannot afford counsel in a civil case. The court cannot require a lawyer to take the case or provide public funds to pay the lawyer. Under the Second Circuit’s Hodge standard, the court first considers whether the person can afford legal services and whether the claims or defenses appear likely to have substance. If those requirements are met, the court also considers factors such as the person’s ability to investigate facts and present the case, whether conflicting evidence will require cross-examination, the complexity of the legal issues, and whether a volunteer lawyer would likely produce a fairer result.

Court’s analysis

The court concluded that the individual defendants met the financial-need requirement. It also found that their defenses appeared likely to have substance because the case was about to proceed to trial and the defendants identified evidence supporting their position. The court determined that the remaining factors favored seeking volunteer counsel: conflicting evidence would likely make cross-examination important, and the impending trial would make it difficult for the defendants to present their case without legal assistance. The court said that representation could help sharpen the issues and shape the examination at trial.

Ruling

Judge Paul A. Engelmayer directed the Clerk of Court to attempt to locate pro bono counsel—that is, a lawyer willing to volunteer—to represent Igor Grinberg and Angeline Herrera at the scheduled trial. The court emphasized that volunteer counsel might not be found, that the litigation would continue, and that the defendants should be prepared to proceed without counsel if no lawyer accepted the case. The court did not guarantee that counsel would be secured and did not require the defendants to accept a volunteer lawyer if one offered to represent them.