Lytle et al v. Hall et al

Filing 90

MEMORANDUM DECISION AND ORDER denying 74 Motion to Appoint Counsel. Signed by Magistrate Judge Daphne A. Oberg on 1/6/21 (alt)

Case 2:19-cv-00619-TC-DAO Document 90 Filed 01/06/21 PageID.1118 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

JOHN LYTLE, JASON WILLIAMS,
CHERYL LOVEALL, and JUST
BREATHE, LLC,

MEMORANDUM DECISION AND
ORDER DENYING MOTION IN
REGARDS TO THE APPOINTMENT OF
LEGAL COUNSEL (DOC. NO. 74)

Plaintiffs,
Case No. 2:19-cv-00619-TC-DAO
v.
Judge Tena Campbell
MARTIN HALL, CHANGING TIDES
GROUP, PAUL STRACY WOOTTEN, and
DE-SADEL SA LTD,

Magistrate Judge Daphne A. Oberg

Defendants.

Before the court is pro se Defendant Martin Hall’s Motion in Regards to the Appointment
of Legal Counsel (“Mot.,” Doc. No. 74). Mr. Hall seeks appointment of a pro bono attorney to
represent him and his company, Defendant Changing Tides Group LTD (CTG), in this case. Mr.
Hall argues a pro bono appointment is necessary due to his legal inexperience; his lack of
knowledge regarding court procedures, rules, and case law; his inability to travel from his
residence in South Africa to appear in court in person because of the COVID-19 pandemic; and
his inability to pay for counsel due to financial difficulties caused by the COVID-19 pandemic.
(Mot. 3–4, Doc. No. 74.)
While defendants in criminal actions have a constitutional right to representation by an
attorney, (U.S. Const. amend. VI; Fed. R. Crim. P. 44), “[t]here is no constitutional right to
appointed counsel in a civil case,” Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989).
Indigent parties in civil actions who cannot obtain counsel may apply for the appointment of
counsel under 28 U.S.C. § 1915, which allows a court to “request an attorney to represent any
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person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). “The appointment of counsel in a
civil case is left to the sound discretion of the district court.” Shabazz v. Askins, 14 F.3d 533,
535 (10th Cir. 1994). The applicant bears the burden of convincing the court his claim merits the
court’s appointing counsel. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). When
deciding whether to appoint counsel, the court considers a variety of factors, including “the
merits of the litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s
ability to present his claims, and the complexity of the legal issues raised by the claims.” Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams v. Meese, 926 F.2d 994,
996 (10th Cir. 1991)).
As an initial matter, an artificial entity is not a “person” for purposes of 28 U.S.C. § 1915.
Rowland v. California Men’s Colony, 506 U.S. 194, 196 (1993). Therefore, CTG is not entitled
to appointment of counsel under this statute.
Further, even assuming Mr. Hall is unable to afford counsel, 1 appointment of counsel is
not warranted at this time based on consideration of the other factors set forth above. As to the
merits of the case, Mr. Hall’s multiple attempts to dismiss the case have thus far been denied.
(See Doc. Nos. 44 and 65.) Because Mr. Hall has not yet filed an answer, it is not clear whether
he has any meritorious defenses to Plaintiffs’ claims. Moreover, the factual and legal issues
raised in this case do not appear to be unduly complex. Additionally, Mr. Hall has demonstrated
an ability to present his own defenses by filing multiple motions to dismiss and other procedural
motions in this case. Finally, Mr. Hall’s inability to appear in person is no obstacle to his
defense at this time because, due to the COVID-19 pandemic, all civil hearings in the District of

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Mr. Hall has not submitted sufficient information regarding his income and finances to support
a finding that he is unable to afford counsel in this case.
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Utah are being conducted remotely absent exceptional circumstances. See General Order 20-030
¶ 11 (Oct. 29, 2020), available at
https://www.utd.uscourts.gov/sites/utd/files/General%20Order%2020-030.pdf.
For these reasons, the court DENIES Mr. Hall’s motion to appoint counsel.
DATED this 6th day of January, 2021.
BY THE COURT:

________________________________
Daphne A. Oberg
United States Magistrate Judge

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