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Camick v. Holladay

United States District Court, D. Kansas

September 14, 2017

HARRY R. HOLLADAY, ESQ., et al., Defendants.


          GWYNNE E. BIRZER, United States Magistrate Judge

         This matter is before the Court on Plaintiff's Motion for Appointed Counsel (ECF No. 29). For the reasons outlined below, Plaintiff's motion is DENIED.

         I. Background

         On May 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).

         On July 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.[1] On July 25, 2017, returns of service were filed for all three defendants (see ECF Nos. 9-12).

         KiaTraxx 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. Melgren.

         II. Plaintiff's Motion for Appointment of Counsel (ECF Nos. 29)

         Plaintiff 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.

         A. Legal Standard

         As 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.[2] 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.”[3] 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.[4]

         Under 28 U.S.C. § 1915(e)(1), in its discretion, the “court may request an attorney to represent any person unable to afford counsel.”[5] 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.[6] The court also considers the movant's diligence in attempting to secure counsel.[7] Thoughtful and prudent care in appointing representation is necessary so that willing counsel may be located.[8] The court has an obligation not to make indiscriminate appointments on every occasion that a plaintiff seeks court-ordered counsel, [9] particularly in light of the expanding federal court dockets, increased filings by pro se parties, and decreasing number of attorneys willing to accept appointments.[10]

         B. Discussion

         The 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.

         After 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.'”[11] 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 ...

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