Lincoln Provision, Inc. v. Puretz, et al.

Filing 50

MEMORANDUM AND ORDER denying 43 the Defendants' Objection to Magistrate Judges Order. Magistrate Judge Gossetts Memorandum and Order denying Defendants Motion to Disqualify Plaintiffs Counsel (Filing No. 42) is affirmed in all respects. Ordered by Judge Laurie Smith Camp. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LINCOLN PROVISION, INC.,
Plaintiff,
vs.
ARON PURETZ, PMP LLC, and
HASTINGS ACQUISITION, LLC,
nominal defendant,
Defendants.

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CASE NO. 8:10CV344

MEMORANDUM
AND ORDER

This matter is before the Court on the Defendants’ Objection (Filing No. 44) to the
Memorandum and Order of Magistrate Judge F.A. Gossett (Filing No. 42). For the reasons
discussed below, the Objection will be denied, and Judge Gossett’s Memorandum and
Order will be affirmed.
STANDARD OF REVIEW
In an appeal from a magistrate judge's order on a non-dispositive pretrial matter, a
district court may set aside any part of the order shown to be clearly erroneous or contrary
to law. 28 U.S.C. § 636(b)(1)(A).
DISCUSSION
The Defendants moved to disqualify Plaintiff’s counsel, David Domina, on the theory
that Domina is a necessary witness in this action; and Judge Gossett denied the motion.
The Defendants object to Judge Gossett’s Memorandum and Order, specifically taking
issue with his finding that: “[A]ny evidence sought to be elicited from Domina is available
elsewhere. It is not apparent that there is relevant, disputed information that Domina
possesses, which others do not.” (Memorandum and Order, Filing No. 42, at 5.)

Defendants note that Domina participated in unsuccessful negotiations for an
operating agreement between the parties, and that the facts of the negotiation process are
relevant, if not central, to issues in this case. In the Defendants’ Brief, they note that they
will call as a witness Robert Rimberg, the lawyer who participated in the negotiation
process on behalf of the Defendants, and that Domina was the only lawyer participating
in the negotiations on behalf of the Plaintiff. (Defendants’ Brief, Filing No. 44, at 3, 6.) The
Defendants contend that the negotiation process collapsed due to the Plaintiff’s
overreaching and sharp practices, and that “[s]ubstantial evidence supporting these
contentions [is] found in or framed by multiple telephone conversations in which only
Domina was present.” (Id. at 4.) Defendants add that “negotiations were crystallized in
telephone conversations between the two attorneys during which, from Puretz’s point of
view, a lack of fair dealing and good faith were most poignantly shown.” (Id.) While is it
apparent that a telephone “conversation” must involve more than one person, and while
it appears that Rimberg is competent to testify to what was said in those conversations, the
Defendants “seek corroboration from Domina as a fact witness on those same telephone
conversations and related matters.” (Id. at 6.)
Defendants refer the Court to no authority suggesting that a party has a right to call
adverse counsel as a witness for the purpose of corroborating the testimony of its own
witnesses. Defendants then suggest that “there will be [a] tremendous awkwardness” if
Domina questions Rimberg on these subjects in the presence of the jury, and that this
Court “may reasonably feel obliged to place limitations on [the] factual testimony and
arguments directed toward Domina’s role in the negotiation process in order to preserve

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decorum in the courtroom as well as properly pay homage to the separate roles of
advocate and witness in a jury trial.” (Id. at 6-7.)
Having reviewed and considered the pleadings (Filing No. 1, Attachment 1; Filing
No. 6); the initial Motion, Briefs, and Indexes of Evidence (Filing Nos. 30, 31, 35, 37, 40,
41); Judge Gossett’s Memorandum and Order (Filing No. 42); as well as the Objection
(Filing No. 43); and the Briefs on the Objection (Filing Nos. 44, 49); this Court concludes
that no part of Judge Gossett’s Memorandum and Order is clearly erroneous or contrary
to law, and, further, this Court is in full agreement with Judge Gossett’s well-reasoned
analysis. At this time, there is no persuasive evidence before the Court indicating that
Domina has non-privileged information that is not readily available through other witnesses.
As to the telephone conversations, Rimberg can testify to what Domina said and how he
said it. There does not appear to be any issue as to inadmissible hearsay. While it
appears that the Plaintiff may be at some disadvantage not being in a position to call
Domina as a witness, that is the Plaintiff’s choice. As to awkwardness, decorum, and
homage, the Court will maintain each at its appropriate level at the time of trial.
CONCLUSION
Magistrate Judge Gossett’s Memorandum and Order denying the Defendants’
Motion to Disqualify Plaintiff’s Counsel is not clearly erroneous nor contrary to law and is
affirmed.
IT IS ORDERED:
1.

The Defendants’ Objection to Magistrate Judge’s Order (Filing No. 43) is
denied; and

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2.

Magistrate Judge Gossett’s Memorandum and Order denying Defendants’
Motion to Disqualify Plaintiff’s Counsel (Filing No. 42) is affirmed in all
respects.

DATED this 4th day of August, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

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