Joe Hand Promotions, Inc. v. Tribelhorne et al

Filing 22

MEMORANDUM AND ORDER denying without prejudice 21 Motion for Appointment of Counsel. Signed by Magistrate Judge Kenneth G. Gale on 6/23/2011.Mailed to pro se party Tasha Tribelhorn by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOE HAND PRODUCTS, INC.,
Plaintiff,
vs.
TASHA TRIBELHORN, et al.,
Defendants.

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Case No. 11-2041-CM-KGG

ORDER ON APPLICATION FOR APPOINTMENT OF COUNSEL
Plaintiff filed its federal court Complaint on January 25, 2011, alleging that
Defendant Tasha Tribelhorn and the other defendants engaged in an unauthorized
exhibition of a UFC broadcast. (See Doc. 1.) Plaintiff subsequently filed a motion
for default judgment against all Defendants, including Tribelhorn. (Doc. 13.) Ms.
Tribelhorn has now filed a Motion for Appointment of Counsel. (Doc. 21.)
DISCUSSION
Unlike in a criminal case, there is no constitutional right to appointment of
counsel in a civil case. Durre v. Dempsey, 869 F .2d 543, 547 (10th Cir.1989).
In the Court’s discretion, however, counsel may be
appointed in a civil action to represent a person
proceeding in forma pauperis. See 28 U.S.C. § 1915(e)
(“[t]he court may request an attorney to represent any
person unable to afford counsel.”). The appointment of
counsel under Section 1915(e) is a matter within the

sound discretion of the district court. Miller v. Glanz,
948 F.2d 1562, 1572 (10th Cir.1991). In determining
whether to appoint counsel, the district court may
consider a variety of factors, including: (1) the merits of
the litigant's claim, (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. Long v. Shillinger, 927 F.2d 525, 527
(10th Cir.1991) (citing Maclin v. Freake, 650 F.2d 885,
886 (7th Cir.1981) (per curiam)).
Barnett ex rel. Barnett v. Northwest School, 00-2499-KHV, 2000 WL 1909625,
*1 (D.Kan. 2000).
As an initial matter, Ms. Tribelhorn has failed to provide the Court with the
requisite affidavit of financial status – despite the fact that the form motion she
signed references the affidavit at least two times and clearly states that “I
understand I am required to establish that I am financially unable to retain my own
counsel.” (See Doc. 21.) This lack of financial information mandates that the
Court cannot appoint counsel to Defendant Tribelhorn at this time. There are,
however, other deficiencies with Defendant’s motion.
Defendant also has not fulfilled her duty in regard to engaging in a
reasonable search for counsel. (Doc. 3, at 1-2.) According to her motion, Ms.
Tribelhorn has contacted five attorneys and/or law firms regarding representation.
(See Doc. 3, nos. 2-6.) She first lists, however, the Wichita Bar Association as a
“lawyer” she has contacted. Although the membership of the Bar Association
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consists of attorneys, it not a law firm and does not provide legal representation.
The Court surmises that Ms. Tribelhorn may have contacted the Bar Association
for lawyer referrals, which is entirely appropriate. The call to the Bar Association
does not, in and of itself, constitute an attempt to contact a lawyer for
representation.
Even without reviewing Defendant’s financial information or without
requiring her to contact an additional attorney, the Court finds that the fourth
Castner factor, her capacity to prepare and present the case without the aid of
counsel, weighs against the appointment of counsel. 979 F.2d at 1421. Here, the
Court must look to the complexity of the legal issues and Plaintiff’s ability to
gather and present crucial facts. Id., at 1422. The Court notes that the factual and
legal issues in this case are not unusually complex. See Kayhill v. Unified Govern.
of Wyandotte, 197 F.R.D. 454, 458 (D.Kan. 2000) (court denying application for
appointment of counsel for a plaintiff in case alleging employment discrimination
on the basis of race, religion, sex, national origin, and disability requiring the
navigation of the various corollary federal statutory and regulatory schemes).
According to the allegations contained in Plaintiff’s Complaint – which are
uncontroverted in Defendant’s filing – Ms. Tribelhorn appears to be a business
owner who was responsible for certain supervisory activities on the date and at the
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location in question. (See Doc. 1, at 2-3.) With this being the only relevant
information presented to the Court on this issue, the Court surmises that Defendant
is an articulate individual with the ability to gather and present facts crucial to her
defense. Although Ms. Tribelhorn is not trained as an attorney, and while an
attorney might present her defense more effectively, this fact alone does not
warrant appointment of counsel. Further, she has done nothing to distinguish
herself from the countless other individuals who represent themselves in state and
federal courts across the country on a daily basis. The Court therefore concludes
that Defendant should be able to defend herself without counsel and DENIES her
motion.
Although the Court is denying the motion, it is doing so without prejudice.
The Court will consider revisiting this issue upon renewed motion in the future
should Defendant provide the Court with the requisite financial affidavit, proof that
she contacted an additional attorney, and sufficient evidence of a compelling need
for a court-appointed attorney.
IT IS THEREFORE ORDERED that Defendant’s application for
appointment of counsel (Doc. 21) is DENIED without prejudice as discussed
above.
Dated at Wichita, Kansas, on this 23rd day of June, 2011.

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S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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