United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER, United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Appointed Counsel (ECF No. 29). For the
reasons outlined below, Plaintiff's motion is
15, 2017, Plaintiff filed this case, acting pro se and
seeking to proceed without prepayment of the filing fee. He
claims defendant Evelyn Wattley, and her company, KiaTraxx
L.L.C., unlawfully acquired his confidential and proprietary
trade secret information. He further contends this
misappropriation of his intellectual property caused him
severe economic and other damages. He seeks not only monetary
damages but injunctive relief to protect his proprietary
interests. Plaintiff further claims defendant Harry R.
Holladay, attorney to defendant Wattley during the timeframe
at issue, wrongfully advised her to take the actions which
harmed Plaintiff. (see Complaint, ECF No. 1, and
Supplement, ECF No. 7).
11, 2017, the Court granted his motion to proceed in
forma pauperis (Order, ECF NO. 8), and pursuant to 28
U.S.C. § 1915(d), the clerk's office undertook the
task of serving Defendants with the summons and Complaint,
utilizing the address information provided by
Plaintiff. On July 25, 2017, returns of service were
filed for all three defendants (see ECF Nos. 9-12).
and Ms. Wattley responded to Plaintiff's Complaint by
filing a joint motion to dismiss (Motion, ECF No. 14).
However, defendant Holladay is involved in a dispute with
Plaintiff over the sufficiency of service on him, and the
issue of whether a clerk's entry of default (ECF No. 23)
entered against Holladay should be set aside (see
Motions, ECF Nos. 25, 26 and related briefing). Those issues
are currently pending before U.S. District Judge Eric F.
Plaintiff's Motion for Appointment of Counsel (ECF Nos.
now asks the Court to appoint him counsel for the purpose of
assisting him in defending Holladay's claim regarding
insufficient service (Motion, ECF No. 29). He acknowledges he
is not entitled to counsel as a matter of right, but contends
that the appointment of counsel to assist him regarding
solely the issue of Holladay's alleged insufficient
service and disputed default would further the interests of
justice. Although the motion is unopposed by Defendants, the
Court reviews the motion on its merits.
Plaintiff acknowledges in his Motion, although a criminal
defendant has a constitutional right to representation by an
attorney, there is no similar constitutional right to counsel
in a civil action such as this one. Some statutes, however,
provide the court with discretion to appoint counsel for a
civil litigant. For example, both the Americans with
Disabilities Act, 42 U.S.C. § 12117(a), and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1),
provide discretionary authority for appointing counsel
“in such circumstances as the court may deem
just.” If a plaintiff sues under a statute which
provides no authority for appointment of counsel, general
authority for requesting counsel under 28 U.S.C. §
1915(e)(1) may govern.
28 U.S.C. § 1915(e)(1), in its discretion, the
“court may request an attorney to represent any person
unable to afford counsel.” When evaluating whether to
appoint counsel, the court considers multiple factors,
including (1) the merits of the litigant's claims, (2)
the nature of the factual issues raised in the claims, (3)
the litigant's ability to present his claims, and (4) the
complexity of the legal issues raised by the
claims. The court also considers the movant's
diligence in attempting to secure counsel. Thoughtful and
prudent care in appointing representation is necessary so
that willing counsel may be located. The court has an obligation
not to make indiscriminate appointments on every occasion
that a plaintiff seeks court-ordered counsel,  particularly in
light of the expanding federal court dockets, increased
filings by pro se parties, and decreasing number of attorneys
willing to accept appointments.
Court is satisfied that Plaintiff is unable to afford
counsel, as evidenced in his financial affidavits (ECF Nos.
2, 7) and the earlier Order permitting him to proceed in
forma pauperis (Order, ECF No. 8). Therefore, the Court
possesses the authority under 28 U.S.C. § 1915(e)(1) to
request an attorney to assist him, after evaluating the
factors outlined above.
careful consideration, however, the Court declines to appoint
counsel for the following reasons. First, Plaintiff failed to
demonstrate diligence in seeking counsel on his own, as
required by both the Tenth Circuit and this Court.
“Although not required to ‘exhaust the legal
directory, ' a plaintiff must demonstrate that he or she
has made a ‘reasonably diligent effort under the
circumstances to obtain counsel.'” In the
District of Kansas, a party is typically required to first
contact at least five attorneys to determine whether they
would represent him, before ...