Bothwell v. Republic Tobacco Co.

• Decision Date: 15 December 1995
• Docket Number: No. 4:CV94-3093.,4:CV94-3093.
• Parties: Earl BOTHWELL, Plaintiff, v. REPUBLIC TOBACCO CO., et al., Defendants.
• Court: U.S. District Court — District of Nebraska

912 F. Supp. 1221

Earl BOTHWELL, Plaintiff, v. REPUBLIC TOBACCO CO., et al., Defendants.

No. 4:CV94-3093.

United States District Court, D. Nebraska.

December 15, 1995.

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MEMORANDUM AND ORDER

PIESTER, United States Magistrate Judge.

Before me for consideration is a motion (filing 50), submitted by plaintiff's appointed counsel, Paula Metcalf, seeking reconsideration and vacation of my order appointing her to represent plaintiff in this case (filing 49). For the reasons set forth below, I shall grant the motion and vacate my order of appointment.

BACKGROUND

In March 1994 plaintiff Earl Bothwell, who at the time was incarcerated at the Hastings Correctional Center, submitted to this court a request to proceed in forma pauperis (filing 1), a civil complaint (filing 3), and a motion for appointment of counsel (filing 4). I provisionally granted plaintiff's request to proceed in forma pauperis, pending receipt of trust account statements from his correctional institution. (Filing 2.) I then ordered that plaintiff's complaint be filed. (Id.)

In his complaint plaintiff alleged that he "immediately ceased" purchasing and smoking factory-manufactured cigarettes after Congress enacted the Federal Cigarette Labeling and Advertisement Act of 1969 ("FCLAA"), 15 U.S.C. § 1333 et seq, which mandated that a warning label be conspicuously placed on packages of such cigarettes. (Filing 3, at 3.) Plaintiff alleged that he thereafter switched to "roll your own" cigarettes, which were not covered by the FCLAA. (Id.) Defendants Republic Tobacco Company and Brown & Williams Tobacco Corporation produce and distribute the shredded, "loose" tobacco which plaintiff used in making his "roll your own" cigarettes. (Id. at 2-3.) Plaintiff alleged that he switched to the defendants' products on the belief that, because the government had not mandated warning labels on loose tobacco and because the defendants had not voluntarily issued such warnings, those products were not harmful or hazardous. (Id. at 3-4.) Plaintiff alleged that in 1986 he became aware that he suffered from emphysema, asthma, heart disease, and "bronchial and other respiratory diseases." (Id. at 4.) He later learned that the loose tobacco products he had been using "were stronger that sic factory-produced cigarettes and were twice as harmful and deadly." (Id. at 5.)

Upon consideration of the complaint I noted that plaintiff had raised two claims under this court's diversity jurisdiction. (Filing 5.) Specifically, I noted that plaintiff's complaint raised claims under the following theories of Nebraska tort law: (1) failure to warn under a negligence theory; and (2) fraudulent misrepresentation. (Id.) I concluded that it did not appear that those claims were preempted by the FCLAA. (Id.) However, I further concluded that plaintiff had failed to state a claim upon which relief could be granted. (Id.) I deferred ruling on plaintiff's motion for appointment of counsel and granted plaintiff leave to file an amended complaint. (Id.)

Subsequently, plaintiff submitted institutional trust account statements (filing 7), paid the $120 filing fee (filing 8), and filed an amended complaint (filing 8). I reviewed the amended complaint and noted that plaintiff had raised the following claims: (1) failure to warn; (2) strict liability; (3) breach of implied warranty of fitness; (4) fraudulent misrepresentation; and (5) FCLAA labeling claim. (Filing 10.) I concluded that plaintiff had failed to state a claim upon which relief could be granted with respect to claims (1), (4), and (5). (Id.) I thus recommended dismissal of those claims pursuant to Federal Rule of Civil Procedure 12(b)(6).¹ (Id.) I further concluded that the defendants should respond to plaintiff's strict liability and breach of implied warranty of fitness claims (claims (2) and (3)). (Id.) I granted plaintiff's request for appointment of counsel and ordered issuance of summons. (Id.)

Following a series of motions to withdraw and appointments of substitute counsel, I appointed Paula Metcalf as plaintiff's counsel. (Filing 24.) Metcalf then filed a "Statement of Appeal" (filing 27) of my appointment order and sought to stay enforcement of that order. (Filing 31.) The Honorable Richard G. Kopf granted the motion for stay and remanded the matter to me for consideration of the issues raised in the Statement of Appeal. (Filing 33.) On remand, I noted that because plaintiff was apparently no longer incarcerated, his eligibility to proceed in forma pauperis was in question. (Filing 35.) I ordered Metcalf to confer with plaintiff regarding his financial status and to submit the pertinent information to the court. (Id.) In response to that order, Metcalf submitted a motion to reconsider and vacate (filing 36), a motion to stay (filing 38), and a statement of appeal (filing 39). Judge Kopf granted the motion to stay and the statement of appeal, "thereby relieving Metcalf of any obligation to comply" with my order to confer with the plaintiff. (Filing 40.) Judge Kopf also directed plaintiff to provide the court with information regarding his whereabouts and financial status. (Filing 41.)

Thereafter, plaintiff submitted a letter informing the court of his present address, stating that he was unable to afford counsel, and requesting appointment of same. (Filing 43.) I then granted plaintiff twenty days to file a financial affidavit and a statement concerning his efforts to obtain counsel. (Filing 44.) As plaintiff failed to comply with my order in a timely fashion I denied plaintiff's request for appointment of counsel and granted him thirty days to either obtain an attorney or notify the court of his intention to proceed pro se. (Filing 45.) Plaintiff subsequently notified the court that he wished to proceed in forma pauperis, indicating that he was physically unable to work and that he was receiving Supplemental Security Income. (Filing 46.) I granted plaintiff provisional leave to proceed in forma pauperis subject to receipt of further information concerning plaintiff's financial status. (Filing 47.) Plaintiff provided the necessary information (filing 48) and I granted him leave to proceed in forma pauperis. (Filing 49.)

Additionally, I re-appointed Paula Metcalf to represent plaintiff. (Filing 49.) Metcalf then filed a motion requesting that I reconsider and vacate that order. (Filing 50.) Metcalf also filed a "Statement of Appeal" (filing 51) and a motion for a stay of the appointment order (filing 52). Judge Kopf granted the motion for stay and held the appeal in abeyance pending resolution of the motion for reconsideration. (Filing 53.) I then invited several interested parties to submit amicus curiae briefs on the questions raised in the motion for reconsideration and deferred my ruling on that motion. (Filing 55.) Metcalf and the amici have since submitted briefs.²

DISCUSSION

In her brief in support of her motion to reconsider and vacate, Metcalf contends that my order appointing her as counsel is "contrary to law and clearly erroneous" because "a federal court has no statutory or inherent authority to force an attorney to take an ordinary civil case for no compensation." (Metcalf's Brief, at 8-15.)

Statutory Authority

Insofar as concerns statutory authority, Metcalf is correct. Plaintiff in this case is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(d). In Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), the United States Supreme Court held, in a 5-4 decision, that section 1915(d)³ does not authorize a federal court to require an unwilling attorney to represent an indigent litigant in a civil case. Id. at 300-08, 109 S.Ct. at 1817-22. In so holding, the Court focused on the language of section 1915(d), which provides that a court may "request" an attorney to accept a court appointment. Id. at 300-07, 109 S.Ct. at 1817-21. The Court examined other statutes and reasoned that, when Congress wanted to require compulsory service, it knew how to do so explicitly.⁴ The Court concluded that by using the term "request," Congress was demonstrating its desire not to require such service of attorneys who are appointed to represent indigent litigants.⁵Id. However, the Court in Mallard left open the question of whether federal courts possess the inherent power to require an unwilling attorney to accept an appointment:

nor do we express an opinion on the question whether the federal courts possess inherent authority to require lawyers to serve. Although respondents and their amici urge us to affirm the Court of Appeals' judgment on the ground that the federal courts do have such authority, the District Court did not invoke its inherent power in its opinion below, and the Court of Appeals did not offer this ground for denying Mallard's application for a writ of mandamus. We therefore leave that issue for another day.

Id. at 310, 109 S.Ct. at 1823.

Inherent Authority

After conducting an extensive review of authority and commentary addressing this issue, I am convinced that a federal district court does possess the inherent power to compel an unwilling attorney to accept a civil appointment.⁶ The origin and scope of that power are discussed below.

Since its inception the federal judiciary has maintained that federal courts possess inherent powers which are not derived from statutes or rules. See United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812) ("our courts no doubt possess powers not immediately derived from statutes"); Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962) (stating that inherent powers are "governed not by rule or statute"). These inherent powers vest in the courts upon their creation. Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227, 5 L.Ed. 242 (1821) ("courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence,...