Carter v. Spirit Aerosystems, Inc.
MEMORANDUM AND ORDER granting 13 Plaintiff's Motion to Appoint Counsel; Randall K. Rathbun provisionally appointed for Mark Anthony Carter; granting 17 Plaintiff's Motion for Extension of Time to File amended complaint - deadline e xtended to June 23, 2017; granting 19 Defendant's Motion for Extension of Time to File Motion to Compel- deadline extended to July 31, 2017. The status conference currently set for July 19, 2017 at 11:00 a.m. will proceed in person in Courtroom 326. See Memorandum and Order for details. Signed by Magistrate Judge Gwynne E. Birzer on 5/22/17.Mailed to pro se party Mark Anthony Carter by regular mail (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK ANTHONY CARTER,
SPIRIT AEROSYSTEMS, INC.,
Case No. 16-1350-EFM-GEB
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Appointment of Counsel
(ECF No. 13); Plaintiff’s Motion for Extension of Time (ECF No. 17); and Defendants’
Motion for Extension of Time to File Motion to Compel (ECF No. 19). For the reasons
outlined below, all Motions are GRANTED.
Nature and Posture of the Case
On September 9, 2016, Plaintiff Mark Anthony Carter filed this case against his
former employer, Spirit Aerosystems, Inc., claiming he was unlawfully terminated from
his job in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.
Plaintiff asserts Defendant excluded him from working overtime, harassed him,
threatened him with a job assignment he was physically unable to perform, and subjected
him to various types of harassment, in part due to his own disabling conditions and due to
his wife’s disability. He claims after his internal discrimination complaint to Spirit’s
EEO department, he began receiving negative performance reviews and disciplinary
action, ultimately leading up to his termination.
Plaintiff was permitted to file his case in forma pauperis (ECF No. 4), and after
Defendant filed its Answer, the Court held an in-person Scheduling Conference on
February 28, 2017 (ECF No. 15). During the conference, Plaintiff made an oral motion
to amend his Complaint, which the Court granted (ECF No. 15, at 10), and Plaintiff’s
deadline to file his amended pleading was set for April 14, 2017. In the course of the
February 28 conference, Plaintiff suggested to the Court that he was uncomfortable
proceeding pro se, and anticipated seeking appointment of counsel.
Immediately following the conference, Plaintiff filed his Motion for Appointment
of Counsel and Declaration of Good Faith Efforts to Obtain Counsel (ECF No. 13). That
motion is currently unopposed. One day prior to his deadline for amendment, Plaintiff
then submitted his Motion for Extension of Time (ECF No. 17), seeking to extend the
deadline for amendment of his Complaint and his deadline to respond to Defendant’s first
set of discovery requests, until after the Court enters a decision on the appointment of
counsel. The Court considers Plaintiff’s requests below.
Motion for Appointment of Counsel (ECF No. 13)
There is no constitutional or statutory right to counsel in an employment
discrimination action.1 Under 42 U.S.C. § 2000e–5(f)(1), “[u]pon application by the
complainant and in such circumstances as the court may deem just, the court may appoint
See Sandle v. Principi, 201 F. App'x 579, 582 (10th Cir. 2006) (citing Castner v. Colo. Springs
Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992)).
an attorney for such complainant.”2 Likewise, for a party who proceeds in forma
pauperis, 28 U.S.C. § 1915(e)(1) provides discretionary authority to “request an attorney
to represent any person unable to afford counsel.”3 “The discretion granted to the district
court [under the statute] is extremely broad.”4 In determining whether to grant Plaintiff’s
request, this Court is guided by the Tenth Circuit’s decision in Castner v. Colorado
In Castner, the Tenth Circuit identified four factors which are relevant to the
district court’s discretionary decision whether to appoint counsel: (1) Plaintiff’s financial
inability to pay for counsel; (2) his diligence in attempting to secure counsel; (3) the
existence or nonexistence of meritorious allegations of discrimination; and (4) his
capacity to present the case without counsel.6 By approving Plaintiff’s request to proceed
in forma pauperis, (ECF No. 4), the Court accepts the veracity of his affidavit of poverty
and inability to afford legal counsel. The Court also accepts Plaintiff’s statement that he
has conferred with at least six attorneys who have either declined this case or whom
Plaintiff cannot afford to hire.
But the Court presently does not have sufficient
information to fully evaluate factors 3 and 4.
After review of the pleadings, and observing Plaintiff’s appearance at the February
28, 2017 conference, the Court provisionally appoints attorney Randall K. Rathbun, of
Lister v. City of Wichita, Kansas, 666 F. App'x 709, 713 (10th Cir. 2016) (citing 42 U.S.C. §
28 U.S.C. § 1915(e)(1); Jackson v. Park Place Condominiums Ass'n, Inc., No. 13-2626-CMGLR, 2014 WL 494789, at *1 (D. Kan. Feb. 6, 2014).
Lister, 666 F. App'x at 713 (quoting Castner, 979 F.2d at 1420).
979 F.2d 1417 (10th Cir. 1992).
Id. at 1420-21.; see also Lister, 666 F. App'x at 713.
Depew Gillen Rathbun & McInteer, LC, to represent Plaintiff.7 Mr. Rathbun’s initial
responsibility will be to confer with Plaintiff and make such investigation as may be
necessary to assist Plaintiff in the filing of an amended complaint and completion of his
responses to Defendant’s initial written discovery requests (see schedule below).
If, upon completion of his initial investigation, filing of the Amended Complaint,
and service of Plaintiff’s initial discovery responses, Mr. Rathbun does not wish to accept
permanent appointment, he shall notify the court. In doing so, to the extent consistent
with professional responsibility, counsel should report his reasons in order to assist the
Court in making further determinations under factors 3 and 4 of the Castner test.8
IT IS THEREFORE ORDERED that Plaintiff’s motion for the appointment of
counsel (ECF No. 13) is provisionally GRANTED as set forth above.
The clerk is directed to send this order to Plaintiff by U.S. Mail. Mr. Rathbun will
be notified regarding his appointment through the Court’s electronic filing system. Upon
receipt of this order, Plaintiff Mark Carter is ordered to contact Mr. Rathbun at 316262-4000 as soon as possible to schedule an appointment for consultation.
Plaintiff’s Motion for Extension of Time (ECF No. 17)
Plaintiff asks that, due to the perceived complexity of this case and his request for
appointed counsel, the Court extend the April 24, 2017 deadline to file his amended
Under certain circumstances appointed counsel may be reimbursed for reasonable out-ofpocket expenses which the client is unable to pay. See D. Kan. Rule 83.5.3(e)(2) and (f) and
See supra note 6 and accompanying text.
complaint, as well as his deadline to respond to Defendant’s First Interrogatories and
discovery requests (Plaintiff’s Motion, ECF No. 17).
Defendant did not formally
respond, but Defendant’s counsel notified the Court it does not oppose Plaintiff’s motion.
Therefore, the motion (ECF No. 17) is GRANTED as unopposed under D. Kan. Rule
Taking into consideration the provisional appointment of counsel and duties of
counsel described above, Plaintiff’s deadline to file his Amended Complaint is extended
to June 23, 2017.
Likewise, the deadline for his responses to Defendant’s First
Interrogatories and other currently outstanding discovery is extended to June 30, 2017.
Defendant’s Motion for Extension of Time to File Motion to Compel
(ECF No. 19)
In light of Plaintiff’s request to postpone his discovery responses, Defendant filed
a motion to extend its deadline to file any motion to compel regarding those responses.
Although Plaintiff opposes Defendant’s request (see Ex. A, ECF No. 19), the Court
recognizes his opposition as simply seeking to wait for rulings on his own pending
motions prior to conceding any extensions to Defendant.9
Because the Court has now granted Plaintiff’s motions, and Plaintiff will proceed
with provisional counsel, the Court finds no prejudice to Plaintiff by permitting
Defendant to preserve its ability to file any motions regarding Plaintiff’s delayed
discovery responses. Therefore, Defendant’s Motion to Extend Time to File its Motion
Plaintiff’s email correspondence with Defendant’s counsel is included as Ex. A to Defendant’s
Motion, ECF No. 19. Plaintiff’s response reads, in part, “I object on the basis that the court be
able to make its rulings on my last two motions filed before any more proceedings.”
to Compel is GRANTED. Defendant’s deadline to file any motion to compel regarding
its initial interrogatories and requests for production is extended to July 31, 2017.
In light of the above rulings, the status conference currently set for July 19, 2017
at 11:00 a.m will proceed in person, before the undersigned, in Wichita Courtroom 326.
All remaining deadlines, aside from those outlined above, are hereby stayed pending
the July 19 conference.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 22nd day of May, 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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