May v. Garcia et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LYNDSAY MAY,
Plaintiff,
vs. 	Case No. 25-2543-EFM-ADM
ERIC GARCIA and UNION HORSE
DISTILLING CO.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court as to Plaintiff Lyndsay May’s “Response to motion
filed out of time” (Doc. 20). Plaintiff appears to have filed this document in response to the Court’s
text entry Order filed on December 3, 2025. That Order (Doc. 18) struck Plaintiff’s response to
Defendants’ motion to dismiss (Doc. 17) because it was filed out of time. Plaintiff’s “Response”
states that she has medical and financial issues that have prevented her from moving forward with
her case. She also states that she has attempted to retain counsel multiple times but has not been
able to do so. Plaintiff asks the Court for assistance in finding an attorney. Thus, the Court
construes her “Response” as a motion for leave to file out of time and a motion for appointment
of counsel.
To the extent Plaintiff seeks leave to file a response, the Court denies her request. The
Court explained in its December 3, 2025 Order that a motion for leave to file out of time must
contain an explanation as to why the response was not timely filed and a copy of the response to
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Defendants’ motion to dismiss. While Plaintiff’s current “Response” explains why she needs
additional time, she does not attach a copy of her proposed response to Defendants’ motion to
dismiss. Therefore, the Court cannot grant her additional time to file a response to Defendants’
motion.
The Court also denies Plaintiff’s request to appoint counsel. There is no constitutional right
to have counsel appointed in civil cases.1 “[A] district court has discretion to request counsel to
represent an indigent party in a civil case” pursuant to 28 U.S.C. § 1915(e)(1).2 The decision
whether to appoint counsel “is left to the sound discretion of the district court.”3
The Court must consider the following four factors in deciding whether to appoint counsel
for an individual: (1) the plaintiff’s ability to afford counsel, (2) the plaintiff’s diligence in
searching for counsel, (3) the merits of the plaintiff’s case, and (4) the plaintiff’s capacity to
prepare and present the case without the aid of counsel.4 When deciding whether to use its
appointment power, the Court must be thoughtful and prudent “so that willing counsel may be
located without the need to make coercive appointments.” 5
Under the first factor, the Court notes that Plaintiff is currently unemployed. However, she
has not sought leave to proceed in forma pauperis in this case, and she has not offered any other
1 Beaudry v. Corrs. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003).
2 Commodity Futures Trading Comm'n v. Brockbank, 316 F. App’x 707, 712 (10th Cir. 2008) (citing Johnson
v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006)).
3 Shabazz v. Askins, 14 F.3d 533, 535 (10th Cir. 1994) (citation omitted).
4 Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1421 (10th Cir. 1992).
5 Id. (citation omitted).
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information as to why she cannot afford counsel. Therefore, the Court finds this factor to be
neutral.
The second factor relates to Plaintiff’s diligence in searching for counsel. Plaintiff must
show that she “made a reasonably diligent effort under the circumstances to obtain an attorney.”6
The Court typically requires the plaintiff to confer with at least five attorneys, not merely contact
them.7 Plaintiff’s “Response” indicates that she conferred with ten attorneys about her case. Thus,
the Court finds that Plaintiff has diligently searched for counsel.
The third factor is the viability of Plaintiff’s claims in federal court. After reading
Defendants’ motion to dismiss, the Court has serious concerns as to whether Plaintiff’s claims will
survive the motion. This factor does not weigh in favor of Plaintiff’s request for counsel.
The final factor is Plaintiff’s ability to prepare and present the case without aid of counsel.
The Court sees no basis to distinguish Plaintiff from the many other untrained plaintiffs who
represent themselves pro se on various types of claims throughout the United States. Plaintiff may
not be trained as an attorney, but this does not warrant the appointment of counsel. Considering
all the factors, the Court denies Plaintiff’s request for appointment of counsel.
IT IS THEREFORE ORDERED that Plaintiff’s “Response to motion filed out of time”
(Doc. 20) is construed as both a Motion for Leave to File Out of Time and a Motion for
Appointment of Counsel. Plaintiff’s Motion for Leave to File Out of Time is DENIED
WITHOUT 	PREJUDICE, 	and 	her 	Motion 	to 	Appoint 	Counsel 	is 	DENIED 	WITH
PREJUDICE.
6 Martinez v. Pickering, 2022 WL 1604616, at *2 (D. Kan. May 20, 2022).
7 Williams v. Long, 2021 WL 4439445, at *2 (D. Kan. Sept. 28, 2021).
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IT IS SO ORDERED.
Dated this 18th day of December, 2025.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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