Judy Enders/maden v. SUPER FRESH Judy Enders/Maden; David Maden

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1496
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JUDY ENDERS/MADEN
v.
SUPER FRESH
Judy Enders/Maden; David Maden*,
Appellants
*Pursuant to Rule 12(a), FRAP
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 05-00669)
District Judge: Honorable Joseph J. Farnan, Junior
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Submitted Pursuant to Third Circuit LAR 34.1(a)
SEPTEMBER 1, 2009
Before: MCKEE, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed: September 3, 2009)
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OPINION
_________
PER CURIAM

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I.
In September 2005, Appellant Judy Enders-Maden filed suit against Super Fresh
Food Markets, Inc. (“Super Fresh”), her former employer. Enders-Maden alleged that
while employed at Super Fresh she was sexually harassed by her supervisor, that she was
given disparate treatment with respect to scheduling, wages and full-time employment
status because of her gender, and that, after taking eighteen months of medical leave, her
employment was terminated because of her gender. Super Fresh moved for summary
judgment. Instead of filing a response to Super Fresh’s motion, Enders-Maden filed her
second motion for appointment of counsel, along with a discovery request. The District
Court denied the counsel motion, denied Super Fresh’s summary judgment motion as
premature, and granted Enders-Maden’s discovery request.
A short period of discovery followed, at the end of which Super Fresh renewed its
motion for summary judgment. After Enders-Maden twice failed to respond to Super
Fresh’s renewed motion for summary judgment, the District Court granted the motion.
Enders-Maden’s husband, David Maden, who is neither a party to the suit nor an attorney,
then filed a “motion for change of venue.” The District Court construed the motion as a
notice of appeal on behalf of Enders-Maden as to its orders denying Enders-Maden’s
motions for appointment of counsel and its order granting summary judgment for Super
Fresh.

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Before briefing commenced, the Clerk of this Court issued an order informing
Enders-Maden that since her husband “does not appear to be a licensed attorney, it is
hereby ORDERED that each Appellant personally sign any and all future submissions in
this case that are intended to be filed on that individual’s behalf.” Notwithstanding this
order, David Maden filed a brief on behalf of Enders-Maden that only bore his signature.
Super Fresh then filed its brief.
II.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review the
District Court’s decision to deny counsel to Enders-Maden for abuse of discretion.
Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002). A district court abuses its
discretion when its decision “rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.” Id.
We exercise plenary review of the District Court’s order granting summary
judgment. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007). Summary judgment
is proper where “the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the movant
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). We may affirm the
District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d
798, 805 (3d Cir. 2000).

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Insofar as David Maden alleges that Super Fresh terminated Enders-Maden’s1
employment because of her postpartum depression, we observe that this fact was not
alleged before the District Court and does not relate to Enders-Maden’s contentions that
she was sexually harassed by her supervisor and discriminated against by Super Fresh
because of her gender.
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III.
As a preliminary matter, we observe that Enders-Maden has failed to comply with
the Clerk’s order concerning its requirement that her personal signature appear on the
opening brief. This conduct has effectively deprived the Court of any reviewable basis to
question the judgment below. But even if we could excuse David Maden’s improper
attempt to represent Enders-Maden on appeal, the opening brief that he filed is wholly
insufficient to demonstrate a genuine issue of material fact in Enders-Maden’s case.1
Indeed, most of the brief relates only tangentially to the claims Enders-Maden raised in
her complaint. At no point does the brief allege any specific errors by the District Court.
In short, we have been provided with no basis for vacating the District Court’s order
granting Super Fresh’s motion for summary judgment.
We also conclude that the District Court did not abuse its discretion when it denied
Enders-Maden’s motions for appointment of counsel. Specifically, we agree with the
District Court as to Enders-Maden’s inability to make the threshold showing of arguable
merit in her case. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). Nor did the
District Court abuse its discretion when it refused to let David Maden act as Enders-
Maden’s legal representative. See Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir.

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2007) (per curiam) (“[28 U.S.C. § 1654] does not permit ‘unlicensed laymen to represent
anyone else other than themselves’”) (quotation omitted); cf. Osei-Afriye v. The Medical
College of Pennsylvania, 937 F.2d 876 (3d Cir. 1991) (non-lawyer appearing pro se may
not act as attorney for his children).
IV.
Accordingly, we will affirm the judgment of the District Court.

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