Nielsen v. Dave & Busters Inc.
- Vyskocil
- 1:23-cv-05824
- U.S. District Court · Southern District of New York
- 4
In Nielsen v. Dave & Buster’s, Inc., Judge Vyskocil denied counsel without prejudice and ordered service in Nielsen’s employment-discrimination case.
Junious Nielsen’s request for volunteer counsel was denied without prejudice, while the court arranged service of his employment-discrimination complaint on Dave & Buster’s, Inc. The order also denied fee-free status for an appeal from this order.
What happened
In Nielsen v. Dave & Buster’s, Inc., Junious Nielsen brought an employment-discrimination case alleging that Dave & Buster’s, Inc. failed to hire him because of his race and national origin. He sued under federal and New York laws.
Nielsen had permission to proceed without paying court fees in advance. The court directed the Clerk and U.S. Marshals Service to issue the summons and serve Dave & Buster’s, Inc. The court extended the service deadline to 90 days after the summons is issued.
Judge Mary Kay Vyskocil denied Nielsen’s request for free legal representation without prejudice because the case was still too early for the court to evaluate its merits. The court also denied fee-free status for any appeal from this order.
The detailed version
- Nielsen v. Dave & Busters Inc. · No. 1:23-cv-05824
- Vyskocil
- Aug. 2, 2023
Background
Junious Nielsen, proceeding without a lawyer, filed an employment-discrimination action against Dave & Buster’s, Inc. He alleges that the company failed to hire him because of his race and national origin. The complaint invokes 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and the New York State Human Rights Law.
The court had previously granted Nielsen permission to proceed without prepaying filing fees. In this order, the court addressed service of process and Nielsen’s application asking the court to request a volunteer lawyer.
Service of Process
Because Nielsen was allowed to proceed without prepaying fees, the court stated that he could rely on the court and the U.S. Marshals Service to serve Dave & Buster’s, Inc. The Clerk of Court was instructed to issue a summons, complete a U.S. Marshals Service process form with the defendant’s address, and deliver the necessary paperwork to the Marshals Service.
The court explained that the usual 90-day service period could not properly begin before the court reviewed the complaint and ordered the summons issued. It therefore extended the time for service until 90 days after the summons is issued. If service is not completed within that period, Nielsen should ask for more time. The court also stated that Nielsen must notify the court in writing if his address changes and that the action may be dismissed if he fails to do so.
Request for Volunteer Counsel
Nielsen asked the court to request free legal representation. Courts consider factors including the apparent strength of the case, the plaintiff’s efforts to find a lawyer, and the plaintiff’s ability to investigate and present the case without assistance. The court stated that the merits of the case receive the most attention, but that it was too early to evaluate the merits here.
Disposition
The court denied Nielsen’s request for volunteer counsel without prejudice to renewing it later. The court also directed the Clerk to mail Nielsen an information package and to arrange for service through the Marshals Service. Finally, the court certified that an appeal from this order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.