AAA Cooper Transportation v. Wes-Pak, Inc., et al

Filing 48

ORDER directing that: (1) Defendant's 44 Objection to Testimony by J. David Kuntz is OVERRULED; (2.) Plaintiff's Request that Defendant make Mr. Westerman and Mr. Lessel available for deposition is REFERRED to the Magistrate Judge. Signed by Honorable Judge W. Harold Albritton, III on 9/16/11. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION

AAA COOPER TRANSPORTATION,
Plaintiff,
v.
WES-PAK., AND.,
VIMY RIDGE PARTNERS. LLC,
Defendant.

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Civil Action No. 1:11-CV-181-WHA-CSC
(wo)

ORDER
This matter is before the court on Defendant Vimy Ridge’s Objection to Testimony by J.
David Kuntz (Doc. #44).
The Defendant timely filed his Objection on September 7, 2011, pursuant to the August,
30, 2011 Order issued by this court. That Order cancelled the evidentiary hearing previously set
for August 30, 2011 at 2:00 p.m. It further ordered the Defendant to file an objection to
testimony by J. David Kuntz by September 7, 2011, and the Plaintiff to file a response to that
objection by September 14, 2011. The Plaintiff timely filed his Response in Opposition to
Defendant Vimy Ridge Partners, LLC, to Testimony of J. David Kuntz (Doc. # 46) on September
14, 2011.
The Defendant contends that Rule 3.7 of the Alabama Rules of Professional Conduct
prohibits J. David Kuntz from testifying at the evidentiary hearing to determine this court’s
personal jurisdiction over Defendant Vimy Ridge. Rule 3.7 generally prohibits a lawyer from
testifying at a trial in which he is also an advocate for one of the parties. See Alabama Rules of
Prof’l Conduct 3.7. Even though the text of the rule uses the word “trial,” the Defendant cites an

assortment of cases in support of its contention that this rule applies to pre-trial evidentiary
hearings as well. See Robinson v. Howell, 726 So. 2d 283, 285 (Ala. Civ. App. 1998)
(explaining that testifying as a witness and serving as counsel for one party “is generally not
recommended, because of concerns about professional ethics,” but choosing not to disqualify the
counsel or penalize the party at all); see also Inglett & Co., Inc. v. Everglades Fertilizer Co., Inc.,
255 F.2d 342, 349 (5th Cir. 1958)1 (noting the difficulty that a lawyer faces when an attorney has
“to drop his garments of advocacy and take on the somber garb of an objective fact-stater”); Am.
Plastic Equip., Inc. v. Toytrackerz, LLC, No. 07-2253-DJW, 2009 WL 902424, at *6 (D. Kan.
March 31, 2009) (finding that the defendant’s attorney of record was a necessary witness for trial
and should be precluded from testifying at trial and at evidentiary hearings since such testimony
could later be used at trial and would reveal the attorney’s dual role of witness and advocate;
however, the court did not disqualify the attorney from helping in pre-trial matters unbeknownst
to the jury); Brotherhood Ry. Carmen of U.S. and Canada v. Delpro Co., 549 F. Supp. 780 (D.
Del. 1982) (interpreting Delaware’s Lawyer’s Code of Professional Responsibility, a pre-cursor
to the Rules of Professional Conduct, and finding that a lawyer-witness that ought to testify, at
trial or at a pre-trial hearing, to material issues of the litigation would be due to be disqualified);
Cottonwood Estates, Inc. v. Paradise Builders, Inc., 624 P.2d 296, 300 (Ariz. 1981) (explaining
that allowing an attorney to testify at trial as a witness can create appearances of impropriety,
confusion in the jury, and ineffectiveness in the system).
The Plaintiff, armed with an informal opinion from the Office of General Counsel from
Alabama State Bar written at the request of the Plaintiff, argues that his testimony does not
1

In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit
adopted as binding precedent the decisions of the former Fifth Circuit issued before October 1,
1981.

violate Rule 3.7 because the facts Mr. Kuntz will testify to have no bearing on the statutory fraud
claim between the Plaintiff and the Defendants. Furthermore, the informal opinion from the
Alabama State Bar notes that the dual role of attorney and witness is unlikely to confuse a factfinder in an evidentiary hearing to determine jurisdiction and that the Plaintiff’s case is only
strengthened by the fact that Mr. Kuntz’s testimony is allegedly unrelated to the statutory fraud
claim. The Plaintiff also distinguishes Robinson v. Howell–the only Alabama state case cited by
Defendant Vimy Ridge–from the present case. In that case, the court simply cautioned that a
lawyer should be wary when serving in a dual role during a Rule 60(b) hearing, but the court
found in favor of the dual-role attorney’s party and did not disqualify the attorney. Robinson,
726 So. 2d at 285.
This court finds the informal opinion of the General Counsel instructive and the case law
cited by the Defendant to be distinct from the present matter. The cases cited by the Defendant
dealt with attorneys that were likely to testify at trial, had testified at trial, or knew information
that was essentially necessary to trial on the merits. None of those scenarios has presented itself
in this case, and therefore, the Defendant’s Objection is due to be overruled. Nothing in this
Order should be read to preclude Defendant Vimy Ridge from objecting on other grounds to any
of the testimony sought from Mr. Kuntz during the hearing, or from later moving to disqualify
counsel at trial, if deemed appropriate..
Also, the Plaintiff raises a discovery issue in its Response in Opposition to Defendant
Vimy Ridge Partners, LLC, to Testimony of J. David Kuntz (Doc. # 46). The Plaintiff alleges
that Defendant Vimy Ridge has made two witnesses, Mr. Lessel and Mr. Westerman, unavailable
for depositions at this time. The court will refer this discovery issue to the appropriate
Magistrate Judge for determination.

It is hereby ORDERED
1.) Defendant’s Objection to Testimony by J. David Kuntz (Doc. #44) is OVERRULED.
2.) Plaintiff’s Request that Defendant make Mr. Westerman and Mr. Lessel available for
deposition is REFERRED to the Magistrate Judge.

Done this 16th day of September, 2011.

/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE