Paolucci v. Render, Kamas Law Firm and all partners from 1995 to the present

Filing 34

MEMORANDUM AND ORDER denying 19 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 2/14/2013.Mailed to pro se party Barbara Paolucci by certified mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BARBARA PAOLUCCI,
Plaintiff,
vs.
RENDER, KAMAS LAW FIRM, et al.,
Defendants.

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Case No. 12-1253-MLB-KGG

ORDER ON MOTION TO APPOINT COUNSEL
Plaintiff Barbara Paolucci filed a federal court Complaint based on diversity
jurisdiction alleging legal malpractice against the Defendants resulting from
representation she allegedly received in a class action lawsuit.1 In conjunction with
her Complaint, Plaintiff also filed a Request to Proceed In Forma Pauperis (IFP
Application, Doc. 1), which the Court previously granted. (See Doc. 7.)
Plaintiff has now filed a Motion for Appointment of Counsel (Doc. 19). The
Tenth Circuit has identified four factors to be considered when a court is deciding
whether to appoint counsel for an individual: (1) plaintiff’s ability to afford
counsel, (2) plaintiff’s diligence in searching for counsel, (3) the merits of

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Plaintiff states that her legal malpractice lawsuit was initially filed in the
Supreme Court of the State of New York, but that she “lost a motion to dismiss based on
long arm jurisdiction,” which was subsequently upheld on appeal. (Doc. 2, at 3.) She
contends that she has “been advised that this is the venue [she] need[s] to persue [sic]”
and that she intends to find counsel. (Id., at 2, 4.)

plaintiff’s case, and (4) plaintiff’s capacity to prepare and present the case without
the aid of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985)
(listing factors applicable to applications under the IFP statute); Castner v.
Colorado Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992) (listing
factors applicable to applications under Title VII). Thoughtful and prudent use of
the appointment power is necessary so that willing counsel may be located without
the need to make coercive appointments. The indiscriminate appointment of
volunteer counsel to undeserving claims will waste a precious resource and may
discourage attorneys from donating their time. Castner, 979 F.2d at 1421.
Initially, the Court is not convinced that Plaintiff has diligently searched for
counsel. (See Doc. 19, at 1-3.) Although Plaintiff has contacted more than the
requisite number of attorneys, she has only inquired about pro bono representation.
It is possible that some of the attorneys contacted may have considered
representing Plaintiff on a contingency basis had she posed her inquiry in this
manner. Regardless, this will not be the determinative factor in the Court’s
analysis.
In regard to the second Castner factor, Plaintiff’s financial need, the Court
previously found that she qualified for IFP status. (See Doc. 7.) This the Court is
satisfied that Plaintiff could not afford counsel.
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As for the third Castner factor, the merits of Plaintiff’s claims, the Court
sees no specific concerns on the face of Plaintiff’s federal court Complaint. (Doc.
1.) The Court notes Defendant’s contention that Plaintiff’s claims are meritless.
(See Doc. 22, at 5-6.) The Court finds, however, that Defendant’s contentions raise
numerous factual issues and rely significantly on subjective opinion. While not
expressing an opinion as to the validity of any potential dispositive motion, based
on the information currently presented, the Court is not prepared to say that
Plaintiff’s claims are meritless as a matter of law.
In considering the final Castner factor – Plaintiff’s capacity to represent
herself – the Court must look to the complexity of the legal issues and Plaintiff’s
ability to gather and present crucial facts. 979 F.2d at 1422. The Court notes that
the factual and legal issues in this malpractice case are not unusually complex. Cf.
Kayhill v. Unified Govern. of Wyandotte, 197 F.R.D. 454, 458 (D.Kan. 2000)
(finding that the “factual and legal issues” in a case involving a former employee’s
allegations of race, religion, sex, national origin, and disability discrimination were
“not complex”).
The Court sees no basis to distinguish Plaintiff from the many other
untrained individuals who represent themselves pro se in Courts throughout the
United States on any given day. To the contrary, Plaintiff has shown her ability to
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represent herself through the filing of her federal Court Complaint and continued
motion practice in this case. Further, in addition, Plaintiff apparently has
represented herself in a plethora of litigation in her home state of New York.
(See Doc. 22-2.) Although Plaintiff is not trained as an attorney, and while an
attorney might present her case more effectively, this fact alone does not warrant
appointment of counsel – especially in light of her extensive experience navigating
the court system.
The Court therefore finds that Plaintiff appears to be an articulate individual
with the ability to gather and present facts crucial to her case. As such, her Motion
to Appoint Counsel is DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Appointment of
Counsel (Doc. 19) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 14th day of February, 2013.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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