Mazen Shahin and Nina Shahin v. City of Dover and Cheryl A. Bundek, City of Dover Tax Assessor ( 2018 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
417 S. State Street
JOSEPH R. SLIGHTS III Dover, Delaware 19901
VICE CHANCELLOR Telephone: (302) 739-4397
Facsimile: (302) 739-6179
Date Submitted: August 24, 2018
Date Decided: September 26, 2018
Mazen Shahin, Ph.D. William W. Pepper, Sr., Esquire
Nina Shahin, CPA Schmittinger and Rodriguez, P.A.
103 Shinnecock Road 414 South State Street
Dover, DE 19904 Dover, DE 19901
Re: Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
Dear Dr. and Mrs. Shahin and Mr. Pepper:
I have Plaintiffs’ Application for Appointment of Attorney Under Provisions
of 6 Del. C. § 4613(b), dated May 17, 2018, and Plaintiffs’ Motion-Request for a
Prompt Decision on Their Formal Request for Appointment of Professional
Attorney, dated July 19, 2018, (together “the Application”). Defendants oppose the
Application. I also have Defendants’ Motion to Dismiss for lack of subject matter
jurisdiction (the “Motion”). Plaintiffs oppose the Motion. Having considered these
submissions, Plaintiffs’ Application is denied and Defendants’ Motion is granted.
I explain my reasoning below.
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
Page 2
I. BACKGROUND
Plaintiffs filed their complaint on May 17, 2018, in which they allege
Defendants discriminated against them on the basis of their national origin when
assessing property taxes due on Plaintiffs’ home in Dover, Delaware.1 In the
simultaneously filed Application, Plaintiffs ask the Court to “appoint an attorney to
file a formal [c]omplaint on their behalf” under the Delaware Fair Housing Act
(“DFHA”), specifically 6 Del. C. §§ 4613(a) and (b).2 According to Plaintiffs, they
have made extensive efforts to find counsel over the course of the past year but have
been unable to convince a lawyer to take their case.3 Based on their inability to
secure legal counsel and their “negative experience[s]” with the Delaware legal
1
Compl. ¶ 2.
2
Appl. 2. See also Mot. 1; Compl. ¶ 9. I note the Application purports to be brought
pursuant to 6 Del. C. §§ 4643(a) and (b). 6 Del. C. § 4643 does not exist. In paragraph
nine of the Complaint and in the Application, Plaintiffs reference 6 Del. C. §§ 4613(a) and
(b) in support of their argument. Because Section 4613 does exist and is applicable,
I assume Plaintiffs mistakenly referenced Section 4643 in the Application and intend,
instead, to invoke Section 4613.
3
Appl. 1.
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
Page 3
system, Plaintiffs now ask the Court to appoint counsel to represent them.4
Importantly, Plaintiffs do not purport to be unable to pay for counsel; indeed, they
make clear that they are able and willing to compensate their attorney.5
On July 5, 2018, Defendants, together the City of Dover and the City
Assessor, Cheryl Bundek, filed the Motion.6 On August 6, 2018, Plaintiffs made a
combined filing including their Objections to the Motion and their Answering Brief.7
This is not Plaintiffs’ first time bringing suit regarding the tax assessment on
their Kent County residence. Counting only their formal assessment appeals, this is
Plaintiffs’ third suit.8 Following the 2010 City of Dover tax assessment, Plaintiffs
informally appealed to the authority conducting the assessment to no avail. Plaintiffs
then unsuccessfully appealed to the City Board of Assessment Appeals
4
Appl. 1–2.
5
Appl. 1.
6
See Opening Br. in Supp. of Defs.’ Mot. to Dismiss (“Opening Br.”).
7
See Pls.’ Objections to the Defs.’ Att’y’s Mot. to Dismiss Pls.’ Compl. and Their
Answering Br. (“Answering Br.”).
8
Opening Br. at *2.
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
Page 4
(the “Board”).9 Next, Plaintiffs filed their first formal appeal with the Superior Court
of Delaware. The court affirmed the Board’s decision. Plaintiffs then appealed to
the Supreme Court of Delaware. The Supreme Court affirmed the Superior Court’s
judgment.10 Plaintiffs responded by filing a discrimination lawsuit under the federal
Fair Housing Act against the City of Dover in the United States District Court. That
case was dismissed for lack of subject matter jurisdiction; the Third Circuit
affirmed.11
Following Dover’s 2014 reassessment,12 Plaintiffs again unsuccessfully
appealed that assessment to the Board, then the Superior Court, and then the
9
Id.
10
Id. Shahin v. City of Dover, Bd. of Assessment, No. CIV.A.K10A-06-002JTV, 2011
WL 704490, at *1 (Del. Super. Ct. Feb. 28, 2011), aff’d sub nom. Shahin v. City of Dover,
31 A.3d 77 (Del. 2011).
11
See Shahin v. City of Dover, No. CV 12-604-LPS, 2014 WL 1092385 (D. Del. Mar. 14,
2014), aff’d, Shahin v. City of Dover, 615 F. App’x 739 (3d Cir. 2015).
12
I note Defendants maintain that this assessment occurred in 2015. See Opening Br. at *2.
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
Page 5
Supreme Court.13 On February 9, 2016, Plaintiffs filed a complaint against the City
of Dover alleging housing discrimination with the federal Department of Housing
and Urban Development (“HUD”) in Philadelphia.14 HUD referred the complaint
to the Delaware Human Relations Commission. The Commission determined there
was insufficient evidence to support a case of discrimination.15
II. ANALYSIS
A. The Application
Plaintiffs seek appointment of counsel under 6 Del. C. § 4613(a). That statute
permits an “aggrieved person” to “commence a civil action in the county in which
the discriminating housing practice is alleged to have occurred.” 16 Under 6 Del. C.
13
Compl. ¶¶ 5, 6; Mazen v. City of Dover Bd. of Assessment Appeals, No. CV K15A-08-
004 WLW, 2016 WL 520996 (Del. Super. Ct. Jan. 22, 2016), aff’d sub nom. Shahin v. City
of Dover Bd. of Assessment Appeals, 149 A.3d 227 (Del. 2016).
14
Compl. ¶ 7.
15
Id. see App. at 5–12.
16
6 Del. C. § 4613(a). 6 Del. C. § 4602(2) defines “aggrieved person” as “any person who:
a. Claims to have been injured, directly or indirectly, by a discriminatory housing practice;
b. Believes that such person will be injured, directly or indirectly, by a discriminatory
housing practice that is about to occur; or c. Is associated with a person having a protected
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
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§ 4613(b)(1), “[u]pon application by a person alleging . . . a discriminatory housing
practice,” the court “may [a]ppoint an attorney for such person.”17 Section 4613(a)
does not, however, require the court to appoint counsel and there is no constitutional
right to appointment of counsel in a civil case—even when a party is deemed to be
indigent.18
I have been unable to find cases addressing the circumstances under which
appointment of counsel under Section 4613(a) is warranted, particularly where the
plaintiff acknowledges that he is able to afford legal counsel. With regard to indigent
party applications under similar statutes or circumstances,19 our state and federal
status under this chapter and claims to have been injured, directly or indirectly, as a result
of a discriminatory housing practice against such person having the protected status.”
17
6 Del. C. § 4613(b)(1) (emphasis added). I note “court” within the DFHA refers to
“the [Delaware] Superior Court [] unless otherwise designated.” Id. § 4613(8).
18
Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N. C., 452 U.S. 18, 26–27 (1981); Jenkins
v. Dover Police Comm’r, 2002 WL 663912, at *1 (Del. Super. Ct. Apr. 5, 2002) (“Neither
the United States Constitution nor the Delaware Constitution entitles a civil litigant to
counsel as a matter of right.”).
19
See, e.g., Aranga v. Krapf, 2018 WL 1377103, at *3 (D. Del. Mar. 19, 2018) (denying
appointment of counsel in employment discrimination claim under American with
Disabilities Act, 42 U.S.C. §§ 12101, et seq.); Scott v. Nemours/Alfred I. duPont Hosp. for
Children, 2017 WL 1843891, at *3 (D. Del. May 8, 2017) (denying appointment of counsel
for employment discrimination claim). Cf. House v. Hous. & Urban Dev., 2006
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C.A. No. 2018-0352-JRS
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courts have considered certain factors in determining whether to appoint counsel to
prosecute a “claim [that] has arguable merit in fact and law.”20
Even if I were to find that those same factors applied in the case of a non-
indigent plaintiff, a proposition that I sincerely doubt to be true,21 I would still find
appointment of counsel not warranted here. Plaintiffs have ably presented their
WL 3779762, at *8–9 (D. N.J. Dec. 20, 2006) (denying plaintiff’s “informal request” to
appoint counsel in a housing discrimination claim).
20
Aranga, 2018 WL 1377103, at *2 (factors include: “(1) the plaintiff’s ability to present
his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which
factual investigation will be necessary and the ability of the plaintiff to pursue
investigation; (4) the plaintiff’s capacity to retain counsel on his own behalf; (5) the extent
to which a case is likely to turn on credibility determinations; and (6) whether the case will
require testimony from expert witnesses.”); see also Wood v. Collison, 2014 WL 4653153,
at *1 (Del. Super. Ct. Sept. 18, 2014) (same) (citing Parham v. Johnson, 126 F.3d 454,
456–57 (3d Cir. 1997)); Tabron v. Grace, 6 F.3d 147, 155–56, 157 n.5 (3d Cir. 1993).
21
I can see no basis in the applicable statute, the common law or the Delaware or United
States Constitutions to require a private civil attorney to accept the representation of a
paying client when that attorney has otherwise determined that the engagement should be
declined. While I need not invoke such terms as “involuntary servitude” or “subjugation”
to describe the scenario in which a court imposes its authority upon a professional to require
him to accept a paying client and a cause that he does not wish to accept, I cannot help but
wonder what legal challenges that professional might advance in response to such an
“appointment” (if the court were brazen enough to order it). Cf. Schmidt v. Hobbs, 1988
WL 31989, at *1 (Del. Super. Ct. Mar. 17, 1988) (declining to compel an expert to testify
on behalf of a party who had not engaged him and for whom he had not agreed to testify,
noting that such an order would “involve a form of involuntary servitude”); Winchester v.
Hertrich, 658 A.2d 1016, 1020 (Del. Super. Ct. 1995) (same).
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
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claims thus far and made court filings while appearing pro se22; their claims do not
appear to be so legally or factually complex as to necessitate the assistance of
counsel23; Plaintiffs are not met with significant barriers or an inability to conduct a
factual investigation24; they have not alleged the need for expert discovery; and the
case is unlikely to turn on credibility determinations.25 Moreover, Plaintiffs do not
suffer from a lack of capacity to seek counsel, as evidenced by their substantial
22
See Evans v. Cook, 2008 WL 4296560, at *2 (D. Del. Sept. 19, 2008) (finding that the
plaintiff had “demonstrated an ability to present his own case, as demonstrated by” the fact
that he “made a number of pro se filings against Defendant which outline his claims against
Defendant clearly and articulately.”) (citing Tabron, 6 F.3d at 156).
23
Cf. Piserchia v. Bergen Cty. Police Dep’t, 2013 WL 4436183 (D. N.J. Aug. 15, 2013)
(granting plaintiff’s motion to appoint counsel because his claims against twenty-one
defendants were legally complex).
24
See Montgomery v. Pinchak, 294 F.3d 492, 503 (3d Cir. 2002) (discussing incarceration
as a legitimate barrier to factual investigation and the ability to understand and comply
with complex discovery rules with the caveat that counsel should not be “appointed in
every potentially meritorious claim by an indigent prisoner where some investigation may
be required.”).
25
See Skinner v. Holman, 2008 WL 2937250, at *2 (D. Del. July 29, 2008) (stating that
even if the case “turn[s] on credibility determinations, that factor alone does not determine
whether counsel should be appointed.”) (citing Parham, 126 F.3d at 460).
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
Page 9
efforts to obtain counsel to date.26 Under these circumstances, I find appointment of
counsel unwarranted.27
B. The Motion
Unlike the standards governing a Rule 12(b)(6) motion to dismiss for failure
to state a claim, the standards governing a Rule 12(b)(1) motion to dismiss for lack
of subject matter jurisdiction are far more demanding of the non-movant. The
burden is on the plaintiff to demonstrate that subject matter jurisdiction exists. In
deciding whether the plaintiff has met that burden, the Court need not accept the
plaintiff’s factual allegations as true and is free to consider facts not alleged in the
complaint.28
26
See Rogers v. Dep’t of Public Safety, 2007 WL 1145294, at *1 (D. Del. Apr. 13, 2007)
(denying appointment of counsel for a plaintiff bringing an employment discrimination
claim, noting that plaintiff was not proceeding in forma pauperis and “presented no
financial hardship and any other argument as to why counsel should be appointed”).
27
It seems to me an extraordinary proposition that a court could call upon an attorney to
represent a party when that party is financially capable of affording representation but has
been unable, for other reasons, to find an attorney willing to represent them. In any event,
I am satisfied that such an order, if ever appropriate, is not justified in this matter.
28
Appriva S’holders Litig. Co. v. ev3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007).
Shahin v. City of Dover and Cheryl A. Bundek
C.A. No. 2018-0352-JRS
September 26, 2018
Page 10
This Court is a court of limited jurisdiction. Its subject matter jurisdiction is
limited to instances where: “(1) one or more of the plaintiff[’s] claims for relief is
equitable in character; (2) the plaintiff requests relief that is equitable in nature; or
(3) subject matter jurisdiction is conferred by statute.”29 “Whenever it appears by
suggestion of the parties or otherwise that the Court lacks jurisdiction of the subject
matter, the Court shall dismiss the action.”30 Plaintiffs allege the Court has
jurisdiction over this dispute because, under the DFHA, the Delaware Division of
Human Relations and the Delaware Attorney General are entitled to initiate
proceedings under the statute in the Court of Chancery.31
The statute’s grant of power to the state authorities to seek equitable relief in
this Court does not extend to private parties. The DFHA states that an action by a
private party for actual and punitive damages should be brought in the Superior
29
Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004).
30
Ct. Ch. R. 12(h)(3).
31
Compl. ¶ 1; see 6 Del. C. § 4600 et. seq.
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Court.32 Because Plaintiffs do not make a prayer for equitable relief or invoke an
equitable right, an action in this Court is not proper.33
C. Conclusion
For the foregoing reasons, the Application is DENIED and the Motion is
GRANTED.
IT IS SO ORDERED.
Very truly yours,
/s/ Joseph R. Slights III
32
6 Del. C. § 4613(c)(1).
33
6 Del. C. § 4613(c)(2). Plaintiffs maintain that, in addition to their flawed view of a
statutory right to commence this action in the Court of Chancery, they have come here
because the Superior Court and the Supreme Court, in the past, have treated them unfairly
and, therefore, to initiate proceedings again in those courts would be the “sign of a serious
physiological disorder.” Compl. ¶ 1. While much could be said in response to this
argument, it will suffice to say that I reject it as a basis to invoke this Court’s subject matter
jurisdiction.