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Shahin v. City of Dover

Court of Chancery of Delaware

September 26, 2018

City of Dover and Cheryl A. Bundek

          Date Submitted: August 24, 2018

          William W. Pepper, Sr., Esquire Schmittinger and Rodriguez, P.A.

         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.

         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 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 (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 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. § 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 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 claims thus far and made court filings while appearing pro se[22]; their claims do not appear to be so legally or factually complex as to necessitate the assistance of counsel[23]; Plaintiffs are not met with significant barriers or an inability to conduct a factual investigation[24]; 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 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]

         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 ...

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