In Re: Lindsay
- Paul Engelmayer
- 1:21-cv-11006
- U.S. District Court · Southern District of New York
- 3
In Lindsay v. Preuss, Magistrate Judge Parker granted one final briefing extension but denied Lindsay’s request for appointed counsel.
Heather Jeanne Lindsay must meet the new briefing deadlines if she continues the appeal; her request for appointed counsel was denied. Krista M. Preuss is the appellee affected by the revised briefing schedule.
What happened
In In Re: Lindsay, Heather Jeanne Lindsay appealed a bankruptcy matter and had not filed her opening brief after receiving two earlier extensions. The court granted one final extension, setting the opening-brief deadline for January 17, 2023, followed by deadlines for the appellee’s opposition and Lindsay’s reply.
Lindsay also asked the court to appoint a lawyer, citing a civil-case counsel statute after initially applying under a statute for criminal cases. The court treated the request as one under the civil appointment statute and noted that Lindsay was already receiving advice from a New York Legal Assistance Group clinic representative. The court found that she had not shown she was unable to obtain counsel herself.
Magistrate Judge Katharine H. Parker denied the request for appointed counsel, terminated both motions, and warned that missing the briefing deadline could lead to dismissal for failure to pursue the case or follow court deadlines.
The detailed version
- In Re: Lindsay · No. 1:21-cv-11006
- Paul Engelmayer
- Dec. 30, 2022
Background
Heather Jeanne Lindsay, representing herself, filed a bankruptcy appeal on December 22,
- Her opening brief was initially due March 4,
- After two extensions, the deadline was December 28,
- Instead of filing the brief on that date, Lindsay requested another 20-day extension, citing difficulty obtaining a lawyer and a medical emergency involving her niece.
Briefing Extension
The court granted one final extension and retroactively set Lindsay’s opening-brief deadline for January 17, 2023. Krista M. Preuss’s opposition brief was due February 14, 2023, and Lindsay’s reply was due March 14, 2023. The court warned that failing to file the opening brief could result in dismissal for failure to pursue the case or comply with court-ordered deadlines.
Request for Appointed Counsel
Lindsay also applied for counsel under 18 U.S.C. § 3006A(g), a statute concerning appointment of lawyers in criminal matters. Because this was a civil bankruptcy appeal, the court treated her application as a request under 28 U.S.C. § 1915(e)(1), which allows a court to appoint counsel for an indigent party in appropriate civil cases. The court explained that it first considers whether the party’s position appears substantial and must first determine whether the party cannot obtain counsel independently.
The court found that Lindsay had not shown she was unable to obtain counsel. According to the opinion, the New York Legal Assistance Group Pro Se Clinic had assigned her representatives, and a current representative was advising her. Although Lindsay complained that the current representative had not contacted her promptly, the court stated that Lindsay also appeared not to have made meaningful efforts to follow up. The court emphasized that pursuing claims with reasonable diligence, including following up with counsel when necessary, remained Lindsay’s responsibility.
Ruling
Magistrate Judge Katharine H. Parker denied Lindsay’s request for assignment of counsel. The clerk was directed to terminate the motions at ECF Nos. 15 and 16 and mail copies of the order to the parties.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.