Acosta v. Vladyslav et al

Filing 14

MEMORANDUM AND ORDER denying #9 Motion to Deny Counsel. Signed by Magistrate Judge Brooks G. Severson on 1/7/25. Mailed to pro se party Daniel Bertram Acosta by regular mail. (df)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANIEL BERTRAM ACOSTA,
Plaintiff,
v.

Case No. 24-1217-DDC-BGS

AMERILAND TRANSPORT, INC., et al.,
Defendants.
MEMORANDUM & ORDER DENYING PLAINTIFF’S MOTION
NOW BEFORE THE COURT is the “Motion to Denied Counsils Motion for Dismiss”
[sic] filed by the pro se Plaintiff in the above-captioned case.1 (Doc. 9.) For the reasons stated
below, Plaintiff’s motion is DENIED.
Plaintiff succinctly argues that Defendants “[h]ave lost the right to obtain counsel”
because they filed to file a motion for entry of appearance within 14 days of some unspecified
event. (Id.) Plaintiff therefore contends that current counsel for Defendants “must withdraw” its
representation. Attached to the motion, Plaintiff includes a document from the United States
Court of Appeals for the Federal Circuit, which states that
[w]ithin 14 days after a new case is docketed, counsel must file an
Entry of Appearance. For counsel retained after the case is
docketed, counsel must file an Entry of Appearance within 14 days
after being retained or admitted to the Federal Circuit’s bar. See
Fed. Cir. R. 47.3(b)(1).
(Id., at 2.) As an initial matter, the Court notes that this case is pending in the United States District
Court for the District of Kansas, not the United States Court of Appeals for the Federal Circuit. As
such, this rule is inapplicable to this Court.

1

The time for Plaintiff to file a reply in support of his motion has not expired. The Court finds, however,
that a reply would not be helpful to its determination of the issues presented.

As Defendants correctly point out, D. Kan. Local Rule 5.1 governs an attorney’s entry of
appearance in United States District Court for the District of Kansas. (Doc. 13, at 2.) The rule
does not include a 14 day deadline for an attorney to enter an appearance, nor does it state that the
failure to do so constitutes a waiver of right to counsel. Rather, Rule 5.1(c) provides that:
(c) Entry of Appearance by Attorneys. An attorney enters his or her
appearance by:
(1) signing and filing a formal entry of appearance; or
(2) signing the initial pleading, motion, or notice of
removal filed in the case. Entries of appearance must
comply with subsection (b) of this rule.
D. Kan. Rule 5.1(c) (emphasis added).
Defense counsel “entered their appearance by signing the Motion to Dismiss and related
pleadings which were not due under the federal rules until twenty-one (21) days after service of
the summons.” (Doc. 13, at 2 (citing Fed. R. Civ. P. 12(a)(1)(A).) Defendants assert that
Plaintiff’s argument “must be rejected” because it “is not supported by, and is in fact inconsistent
with the applicable rules of civil procedure.” The Court agrees. Plaintiff’s motion is, therefore,
DENIED.
IT IS SO ORDERED.
Dated January 7, 2025, at Wichita, Kansas.
/s/ Brooks G. Severson
Brooks G. Severson
United States Magistrate Judge