Carter v. Spirit Aerosystems, Inc.
ORDER denying 31 Plaintiff's Motion to Disqualify Counsel; finding as moot 31 Plaintiff's Motion for Protective Order. A status conference is set for October 2, 2017 at 10:00 a.m. via telephone conference call to be initiated by the Court. See Order for additional information and deadlines. Signed by Magistrate Judge Gwynne E. Birzer on 8/31/17. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARK ANTHONY CARTER,
SPIRIT AEROSYSTEMS, INC.,
Case No. 16-1350-EFM-GEB
On August 30, 2017, the Court held an in-person hearing to discuss Plaintiff’s
Motion to Disqualify and Motion for Protective Order (ECF No. 31). Plaintiff Mark
Anthony Carter appeared in person, acting pro se. Defendant Spirit Aerosystems, Inc.,
appeared through counsel Teresa L. Shulda, with Spirit’s in-house counsel, Mindy
McPheeters, also present. Defendant International Association of Machinists and Aerospace
Workers (“IAMAW”) appeared through counsel, Thomas E. Hammond.
Foulston Siefkin LLP appeared through counsel, Jeffrey A. Jordan. After consideration of
the arguments of the parties and the parties’ briefing, the Court announced, at hearing,
Plaintiff’s Motion is DENIED for the reasons outlined below.
Motion to Disqualify (ECF No. 31)
Plaintiff seeks disqualification of defendants’ counsel, Teresa Shulda, and the law
firm of Foulston Siefkin LLP under Kansas Rule of Professional Conduct (“KRPC”) 3.7.
He contends Ms. Shulda may be a witness based upon her earlier role representing Spirit
during Plaintiff’s agency complaints to the U.S. Department of Labor (“DOL”) and Equal
Employment Opportunity Commission (“EEOC”).
Spirit and its counsel oppose
disqualification, arguing KRPC 3.7 does not support disqualification because it limits its
prohibition to advocacy at trial. Spirit further contends none of the factors supporting
disqualification are present.
The other defendants took no formal position, either by
briefing or at hearing, regarding the pending motion.
As the party seeking disqualification, Plaintiff bears the initial burden to provide
enough evidence to establish a prima facie case showing counsel should be disqualified, but
the ultimate burden lies with the responding attorney.1 Plaintiff’s motion relies upon KRPC
3.7, which provides:
(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely
to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on
(b) A lawyer may act as an advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness unless precluded from doing so
by Rule 1.7 or Rule 1.9.
KRPC 3.7. “Under Kansas law, KRPC 3.7(a) requires the opposing party to bear a higher
burden on a disqualification motion, permits the court to delay ruling until it can be
Schneider v. CitiMortgage, Inc., No. 13-4094-SAC, 2014 WL 6632939, at *2 (D. Kan. Nov. 21,
2014) (citing United States v. Oyer, No. 08–2002–CM, 2009 WL 1904308, at *1 (D. Kan. July 1,
2009), Lowe v. Experian, 328 F. Supp. 2d 1122, 1125 (D. Kan. 2004)).
determined that no other witness could testify, and obviates disqualification if the lawyer’s
testimony is merely cumulative.”2
In addition to consideration of Rule 3.7, the District of Kansas applies the Smithson
test, originating from the Western District of Virginia, to determine whether counsel should
be disqualified under KRPC 3.7.3 “Under the Smithson test, a motion for disqualification
should not be granted unless:
(a) the attorney would give evidence that is material to the issue being
(b) such evidence is unobtainable from other sources, and
(c) the testimony is prejudicial or potentially prejudicial to the testifying
Disqualification will not be granted unless all three of the Smithson factors are met.”4
As a threshold issue, it is important to recognize the purpose behind Rule 3.7, which
is to avoid any potential confusion at trial resulting from an attorney acting as both advocate
and a witness.5 This underlying purpose does not extend to pretrial matters, outside the
review of the jury.6 Rule 3.7 “does not apply typically to a lawyer’s ability to perform
pretrial activities.”7 Even if Ms. Shulda were to become a necessary witness later (which
she and Defendants dispute), the rule does not prohibit her from acting as counsel during the
Darnell v. Merch., No. 17-3063-EFM-TJJ, 2017 WL 2618823, at *3 (D. Kan. June 16, 2017)
(citing United States v. Becker, No. 10-40077-02-JAR, 2011 WL 93759, at *3 (D. Kan. Jan. 11,
2011) (quoting ABA/BNA Lawyer's Manual on Prof. Conduct § 61.507)).
Id. (citing Schneider, 2014 WL 6632939, at *2; LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d
740, 751 (1994); Smithson v. U.S. Fid. & Guar. Co., 411 S.E.2d 850, 856 (W. Va. 1991)).
Id. (emphasis added; internal citations omitted).
Id. (citing Schneider, 2014 WL 6632939, at *2; Lowe, 328 F. Supp. 2d at 1126).
Id. at *5 (internal citations omitted).
Schneider, 2014 WL 6632939, at *2.
pretrial process. And, even if Ms. Shulda were prohibited by Rule 3.7 from acting as both
advocate and witness at trial, Rule 3.7(b) specifically permits her law firm, Foulston, to
continue to represent Spirit.
Additionally, none of the Smithson factors are present here. Regarding the first
factor, Ms. Shulda does not appear to possess independent evidence material to Plaintiff’s
underlying employment claims. She was acting as Spirit’s attorney throughout the agency
investigations by the DOL and EEOC.
She does not appear to have independent
information, but only the information she presented on behalf of her client. Similarly,
regarding the second Smithson factor, the evidence which Ms. Shulda would have is
otherwise obtainable from Spirit witnesses, many of whom Plaintiff named in his Rule 26
disclosures. And, most likely, any information Ms. Shulda gained in her own investigations
is either attorney-client privileged or is protected under the work product doctrine. Finally,
regarding the third Smithson factor, it is difficult to see how any information Ms. Shulda
would provide could be prejudicial to her own client, Spirit. Even though Plaintiff claims
she made incorrect statements during the agency investigations, the statement to which he
refers is not prejudicial to Spirit.8
Under KRPC 3.7, Plaintiff fails to meet his initial burden to show a prima facie case
for counsel’s disqualification. The Court finds none of the required Smithson factors present
under these facts, and his motion is DENIED without prejudice to further factual
See Pl.’s Motion, ECF No. 31, at p. 3, and p. 22.
development after the close of discovery. The issue may be revisited at pretrial conference
if Plaintiff raises the issue at that time.9
Plaintiff’s Motion for Protective Order (ECF No. 31)
Along with Plaintiff’s request to disqualify counsel, he asked the Court to enter a
protective order regarding Defendants’ discovery requests. However, he did not expound
upon that statement in his motion.
During the August 30 hearing, Plaintiff explained he was confused about Spirit’s
discovery requests and the effect the disqualification might have on those requests. After
this clarification by Plaintiff, and considering further discussions with the parties at hearing,
the Court finds Plaintiff’s request for protective order MOOT.
Discovery and Scheduling Issues
In light of the earlier stay of deadlines (Order, ECF No. 32), the Court inquired to the
parties regarding the progress of discovery. Defendant Spirit disclosed it had served written
discovery on Plaintiff and had only recently mailed to him a “conferral letter” outlining its
issues with his responses. Plaintiff has not yet received the letter. After discussing the
discovery issues with the parties during the hearing, the Court enters the following orders:
The Court finds information regarding Plaintiff’s cellular phone provider and records
to be relevant to his claims in this case. Therefore, Plaintiff is to respond to Spirit’s
interrogatories regarding his cellular phone within seven days of the filing of this Order.
See Schneider, 2014 WL 6632939, at *3-4 (denying motion to disqualify without prejudice, and
noting it may be appropriate to revisit the issue at the conclusion of discovery, which will permit the
facts to be developed)).
With regard to Defendant’s First Request for Production of Documents, Plaintiff is to
review Defendant’s requests and provide a complete answer to each individual request. If
he possesses responsive documents to each, he must provide copies. If he does not possess
responsive information, or the information has been previously provided, he must describe
the information previously provided and/or certify he has no additional responsive
information in his possession, custody or control. Plaintiff must provide his supplemental
responses to Spirit’s Requests for Production within 30 days of this Order.
Taking into consideration the deadlines established for Plaintiff’s supplemental
discovery responses to Spirit, the Court extends the deadline for Spirit to file any motion to
compel to 45 days from the date of this Order. The previously-entered stay of all other
deadlines remains in place. The Court will convene a status conference to discuss the
progress of the above discovery, and the progress of this case, on October 2, 2017, at 10:00
a.m., by telephone, to be initiated by the Court.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Disqualify (ECF No.
31) is DENIED without prejudice as set forth above. Plaintiff’s Motion for Protective
Order (ECF No. 31) is found to be MOOT.
IT IS SO ORDERED.
Dated at Wichita, Kansas this 31st day of August, 2017.
s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge
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