Cheng v. Cash

Background

Sheng-Wen Cheng applied for counsel on February 26, 2024. The court had previously allowed Cheng to proceed without paying filing fees after finding, based on his application, that he could not afford an attorney. Cheng is incarcerated.

In his Second Amended Complaint, Cheng alleges that Lukas Cash defrauded him after receiving $105,000 for business advice, public-relations and marketing services, and mentoring. Cheng alleges that Cash caused him to default on contracts with other firms, caused the bankruptcy of his companies, and caused his incarceration. Cheng asserts claims including fraudulent inducement, fraudulent concealment, conversion, unjust enrichment, breach of contract, breach of fiduciary duty, negligent misrepresentation, interference with contractual and prospective business relationships, and emotional-distress claims. These are allegations described in the opinion, not findings that Cash committed those acts.

The Marshals Service served Cash by mail, and Cash signed confirmation that he received the summons and complaint on October 10, 2023. Cash did not appear or answer by the original deadline. The court later extended his deadline and treated Cheng’s default-judgment motion as properly filed. After learning that an order about the motion had not been mailed to Cash as directed, the court extended Cash’s opposition deadline and postponed the default-judgment hearing. Cheng then sought counsel.

Legal Standard

Under 28 U.S.C. § 1915(e)(1), a court may ask an attorney to represent a person who cannot afford counsel. In civil cases, an indigent litigant does not have an automatic right to a free lawyer. The court instead has broad discretion to request that an attorney volunteer.

The court applied factors identified by the Court of Appeals for the Second Circuit, including whether the claim appears likely to have substance, the litigant’s ability to investigate facts and present the case, the complexity of the legal issues, the need for questioning witnesses, efforts to find counsel, and whether counsel would help produce a fair result.

Court’s Analysis

The court found that Cheng had made substantial efforts to obtain a lawyer by sending letters to multiple law firms and submitting their rejection letters. The court also recognized that Cheng had shown some ability to gather facts and address the issues through his filings.

The court nevertheless noted that Cheng had no internet access while incarcerated and no friends or family to assist him. It also considered the default-judgment posture of the case and the possibility that Cash might also be without a lawyer. The court concluded that representation could lead to a faster and fairer result by clarifying the issues and organizing the examination of witnesses.

Disposition

The court granted Cheng’s application for counsel. It directed the Clerk of Court to attempt to locate pro bono counsel—an attorney volunteering legal services—to represent Cheng for the limited purpose of default-judgment motion practice. The court emphasized that it cannot pay counsel in civil cases, that finding a volunteer could take a long time, and that no volunteer is guaranteed to accept the case.

The court adjourned the March 28, 2024 default-judgment hearing indefinitely while the Clerk worked to locate counsel. It also certified that any appeal from the order would not be taken in good faith and denied permission to appeal without paying filing fees. The Clerk was directed to mail the order to Cheng and terminate Docket No. 35.