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Seguros v. World Jet of Delaware, Inc.

United States District Court, S.D. Florida, Miami Division

August 28, 2017

ZUMA SEGUROS, CA, Plaintiff,
v.
WORLD JET OF DELAWARE, INC., Defendant.

          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.

         Defendant 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= "FN1');">1">1');">1]

         Plaintiff 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.

         Zuma 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].[2] After reviewing the parties' filings and the record, the Undersigned denies World Jet's motion for the reasons stated below.

         Background

         On 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].

         The 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.

         As an initial point, it is clear to the Court that Mr. Vazquez is a necessary fact witness in this case.[3] Plaintiff's claims are for breach of contract and fraudulent inducement arising out of an aircraft sale gone bad.[4] [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].

         World 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].

         World 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].

         If this 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 advocate.

         Analysis

         Defendant'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. 2-3].

         The 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, 5].[5] Therefore, Plaintiff's ...


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