United States District Court, S.D. Florida, Miami Division
ORDER ON DEFENDANT'S MOTION TO STRIKE WITNESS
FROM PLAINTIFF'S AMENDED TRIAL WITNESS DISCLOSURE OR
ALTERNATIVELY TO STRIKE GERARDO VAZQUEZ AS A WITNESS
Jonathan Goodman UNITED STATES MAGISTRATE JUDGE.
World Jet of Delaware, Inc. (“Defendant” or
“World Jet”) filed a motion [ECF No. 60] to
strike Plaintiff Zuma Seguros, CA's
(“Plaintiff” or “Zuma”) amended trial
witness disclosure, which adds Gerardo Vazquez as a witness.
[ECF No. 59]. Defendant takes issue with this amendment
because Mr. Vazquez is Plaintiff's
current lawyer. In the words of
Lewis Carroll, this case keeps getting “curiouser and
curiouser.”[1');">1" name="FN1');">1" id=
waited almost 1');">16 months after the Complaint was filed, and
after Defendant filed its summary judgment motion, to notify
the Court that Mr. Vazquez may need to act as both an
advocate and fact witness in this case. The Court must
resolve this critical advocate-witness issue before it can
rule on Defendant's dispositive summary judgment motion.
filed a response to World Jet's motion to strike, and
World Jet filed a reply to Zuma's response. [ECF Nos. 66;
71');">1]. World Jet also filed a notice that included additional
arguments in support of its motion to strike based on the
deposition testimony of Zuma's director, Jesus Camargo.
[ECF No. 77]. After reviewing the parties' filings
and the record, the Undersigned denies World
Jet's motion for the reasons stated below.
September 1');">12, 201');">16, Plaintiff filed its original witness
disclosure. [ECF No. 46]. On November 8, 201');">16, Plaintiff
filed its amended trial witness disclosure, which added Mr.
Vazquez as a witness. [ECF No. 59].
potential for Plaintiff's lawyer to act as a necessary
fact witness in this case was not raised as an issue until
almost 1');">16 months after the complaint was filed. But now that
it has been raised, the Court is tasked with deciding a
fundamental inquiry: whether to permit a disclosure amendment
that would allow a current lawyer to testify on behalf of his
client at trial.
initial point, it is clear to the Court that Mr. Vazquez is a
necessary fact witness in this case. Plaintiff's claims are
for breach of contract and fraudulent inducement arising out
of an aircraft sale gone bad. [ECF No. 1');">1]. Zuma claims that on
February 1');">14, 201');">14 (a date Zuma says is indicative of an
agreed-upon extension for payment), Mr. Vazquez, on
Zuma's behalf, attempted to make a final payment to World
Jet for the aircraft. [ECF No. 61');">1, pp. 7-9, 1');">19-24]. Plaintiff
claims that Mr. Vazquez did not ultimately make the actual
payment because Mr. Whittington denied Mr. Vazquez access to
the aircraft's maintenance and log books. [ECF No. 61');">1,
pp. 7-9, 1');">19-24]. Because of this, Mr. Vazquez found that
World Jet materially breached its contract with Zuma. [ECF
Nos. 1');">1, p. 6; 61');">1, pp. 2');">p. 29-30].
Jet argues that Zuma was never assigned the rights to
purchase the aircraft. [ECF No. 55, pp. 6-9]. Alternatively,
World Jet argues that, if such an assignment exists, then Mr.
Vazquez's attempted payment was untimely because February
1');">14, 201');">14 was not the agreed-upon closing date. Therefore,
World Jet contends, Zuma defaulted on its contract with World
Jet (assuming that an assignment had been made). [ECF No. 55,
pp. 1');">11');">1-1');">13; 55-1');">1, p. 6].
Jet also argues that there was no contract provision stating
that a buyer's access to the log books and maintenance
records was a condition precedent to payment. [ECF No. 55-1');">1,
pp. 6-7]. In fact, Mr. Whittington's affidavit
specifically contends that Mr. Vazquez contacted him not for
“the purpose of paying money or inspecting the log
books and maintenance records of the Aircraft, but
rather” to “take physical possession and custody
of the log books and maintenance records.” [ECF No.
55-1');">1, pp. 5-6].
case goes to trial, then the jury should be able to consider
Mr. Vazquez's testimony in determining whether World Jet
breached a contract. However, the Court's finding that
Mr. Vazquez's testimony is necessary is an entirely
different inquiry than permitting
his testimony based on his current status as Plaintiff's
opposition to the amended trial witness disclosure (i.e., its
motion to strike a witness) is based on two arguments: (1');">1)
untimeliness of the new witness disclosure, and (2) violation
of Rule 4-3.7, Florida Bar Rules of Professional Conduct
(because Mr. Vazquez could bolster his client's testimony
and present an uncomfortable impeachment scenario for World
Jet's counsel during cross-examination). [ECF No. 60, pp.
Court agrees with World Jet that, at the time it filed
its motion to strike, Zuma's amended trial witness
disclosure was untimely. The original trial scheduling report
had a September 9, 201');">16 cut-off date for witness disclosures
-- but the amended list was filed on November 8, 201');">16. [ECF
No. 38, p. 5]. However, after World Jet's motion to
strike was fully briefed, the Undersigned entered two amended
trial scheduling orders, where the first amended order
extended the expert disclosures and reports deadlines. [ECF
Nos. 68; 81');">1]. The first amended report moved the trial date
to June 6, 201');">17 and gave the parties until December 1');">16, 201');">16
to file their trial witness disclosures. [ECF No. 68, pp. 1');">1,
Therefore, Plaintiff's ...