Gadekan v. United States Department of Agriculture et al

Filing 5

MEMORANDUM AND ORDER that the 3 Motion to Appoint Counsel is denied. Plaintiff shall have until January 29, 2013, to retain counsel. If Plaintiff fails to retain counsel, this case will be dismissed without prejudice and without further noti ce for failure to state a claim upon which relief may be granted. The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: Check for appearance by counsel on January 29, 2013, and dismiss if not filed. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN A. GADEKAN, for himself and as
Personal Representative of Lola Gadeken
Estate, Arnold W. Gadeken Estate, Arnold
W. Gadeken Residuary Trust,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,
Defendants.

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4:12CV3208

MEMORANDUM
AND ORDER

This matter is before the court on Plaintiff’s Motion to Appoint Counsel. (Filing No. 3.) In
his Motion, Plaintiff requests the appointment of counsel for himself and for the two estates and the
trust on behalf of which he seeks to bring this action. (Id.)
The court notes that, while Plaintiff John A. Gadekan may proceed pro se on his own behalf,
“‘[w]hen an estate has beneficiaries or creditors other than the administratrix or executrix, the action
cannot be described as the litigant’s own, because the personal interests of the estate, other survivors,
and possible creditors will be affected by the outcome of the proceedings.’” Jones v. Corr. Med.
Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005) (quoting Pridgen v. Andresen, 113 F.3d 391, 393 (2d
Cir. 1997); see also Shepherd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002) (citing Iannaccone v.
Law, 142 F.3d 553, 558 (2d Cir. 1998) (“[B]ecause pro se means to appear for one’s self, a person
may not appear on another person’s behalf in the other’s cause. A person must be litigating an
interest personal to him.”). Thus, where a pro se plaintiff is not the sole beneficiary and creditor of
an estate, proceeding pro se constitutes the unauthorized practice of law and the matter should not
be allowed to proceed without the estate obtaining counsel. Jones, 401 F.3d at 952. It is clear from
Plaintiff’s Motion, and from the Complaint, that he is not the sole beneficiary or creditor of the two
estates he seeks to represent and therefore may proceed in this action only through counsel.1

1

For example, Plaintiff states that there are unpaid real estate taxes on land owned by the estates
(filing no. 3 at CM/ECF p. 3), and the entire Complaint references various financial and other interests that
the United States Department of Agriculture and the Farm Service Agency has in the land held by the estates
(filing no. 1).

Additionally, the court cannot routinely appoint counsel in civil cases. In Davis v. Scott, 94
F.3d 444, 447 (8th Cir. 1996), the Eighth Circuit Court of Appeals explained that “[i]ndigent civil
litigants do not have a constitutional or statutory right to appointed counsel. . . . The trial court has
broad discretion to decide whether both the plaintiff and the court will benefit from the appointment
of counsel . . . .” Id. (quotation and citation omitted). No such benefit is apparent here. Plaintiff’s
Motion to Appoint Counsel is denied. However, on the court’s own motion, Plaintiff will be
permitted an additional 60 days to obtain counsel. If Plaintiff fails to retain counsel, this matter will
be dismissed without prejudice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until January 29, 2013, to retain counsel. If Plaintiff fails to
retain counsel, this case will be dismissed without prejudice and without further notice for failure
to state a claim upon which relief may be granted.
2.
The Clerk of the court is directed to set a pro se case management deadline in this
case using the following text: Check for appearance by counsel on January 29, 2013, and dismiss
if not filed.
DATED this 3rd day of December, 2012.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The
court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.