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Carter v. Spirit Aerosystems, Inc.

United States District Court, D. Kansas

August 31, 2017

MARK ANTHONY CARTER, Plaintiff,
v.
SPIRIT AEROSYSTEMS, INC., Defendants.

          ORDER

          GWYNNE E. BIRZER United States Magistrate Judge

         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. Defendant 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.

         I. 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.

         A. Legal Standards

         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 the client.
(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 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 Smit ...


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