Gavel v. Wow Payments LLC

Background

Holly Gavel sued WOW Payments LLC, Eugene Gold, and Kofi Korang. She alleged that Korang sexually harassed her during her employment with WOW Payments. Her claims arose under the New York City Human Rights Law and the New York Employers Liability Act, and included civil assault, battery, and negligent infliction of emotional distress.

Gavel moved for default judgment against Korang. On October 15, 2020, Judge Lewis J. Liman granted that motion as to Gavel’s claims under the New York City Human Rights Law and for assault and battery. He denied it as to the New York Employers Liability Act and negligent infliction of emotional distress claims. The case was then referred for an inquest, meaning a process to determine damages.

Korang’s participation and request for counsel

Korang later filed an answer and applied for free legal counsel. The court denied his first application. He filed a second application on October 3, 2022.

The court noted that Korang had repeatedly failed to appear or participate. He did not appear at a November 2, 2022 conference, and mailings sent to the address listed in the court record were returned as undeliverable. The court gave him one final opportunity to appear, move to set aside the default judgment, or contest Gavel’s damages submission. Korang took no action by the stated deadline, and the mailing of that order was also returned as undeliverable.

Legal standard

The court explained that federal judges have broad discretion to appoint volunteer counsel for an indigent civil litigant. Under the standard used by the United States Court of Appeals for the Second Circuit, the court first considers whether the person’s position appears likely to have substance. If that threshold is met, the court also considers the person’s ability and efforts to obtain counsel, ability to handle the case without assistance, the need for factual investigation, the complexity of the legal issues, and the need for cross-examination.

Ruling

Magistrate Judge Valerie Figueredo denied Korang’s application for free legal counsel. The court gave four reasons: Korang had repeatedly failed to appear or participate and had not provided a correct mailing address; the case file did not show that the merits of his position were so apparent that counsel was compelled; he had not explained his financial ability to obtain counsel or described his efforts to retain counsel; and the legal issues were not so complex that he could not handle them himself.

The Clerk of Court was directed to terminate the motion at ECF No. 42. The court stated that it would issue a Report and Recommendation concerning the damages inquest based on Gavel’s submissions. This order did not determine the amount of damages.