United States District Court, W.D. Kentucky, Bowling Green Division
MARTIN RICO MURILLO, et al. PLAINTIFFS
TRACY DILLARD, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court
matter comes before the Court on Defendant's Objection to
Magistrate Judge's Pretrial Discovery Order (DN 79). For
the following reasons, the objection is
an action to recover alleged unpaid minimum wages in
violation of the Fair Labor Standards Act, 29 U.S.C.
§§ 201-219, as well as claims of breach of contract
and retaliation. (Third Am. Compl. ¶¶ 96-107, DN
57). Plaintiffs are Mexican nationals who received permission
from the U.S. Department of Labor to enter the United States
to work under the H-2A visa program. (Third Am. Compl. ¶
9). Defendants own a farm in Monroe County, Kentucky, and
they employed Plaintiffs to perform agricultural work
including the planting and harvesting of tobacco. (Third Am.
Compl. ¶¶ 13, 17-18, 27-28, 37-38, 42-43). The
parties dispute whether the work was actually performed and
whether Plaintiffs are entitled to the wages to which they
the course of discovery, Defendants moved for a protective
order to prevent the depositions of Plaintiffs from occurring
in Mexico arguing that Plaintiffs failed to show it was undue
hardship or burden to require them to be deposed in Kentucky
and that any hardship or burden would outweigh any prejudice
to Defendants. (Defs.' Mot. Protective Order 5-6, DN 66).
The Magistrate Judge denied the motion after weighing the
burden and hardship against the parties in light of the
circumstances of this case, and Defendants have objected to
that ruling because they believe it would pose an undue
hardship for their counsel to have to travel to Mexico for
depositions due to their current financial condition. (Mem.
Op. & Order, DN 76; Defs.' Obj., DN 79).
Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331 and 28 U.S.C. § 1337(a). In addition, the
Court has supplemental jurisdiction over Plaintiffs'
state law claims. See 28 U.S.C. § 1367(a).
STANDARD OF REVIEW
objections are made to rulings by a magistrate judge
involving nondispositive matters, the district judge
“must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.” Fed.R.Civ.P. 72(a). “When
reviewing a pretrial order regarding non-dispositive issues,
a district court judge may only reconsider the order
‘where it has been shown that the magistrate's
order is clearly erroneous or contrary to law.'”
DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 340
(S.D.N.Y. 2009) (quoting 28 U.S.C. § 636(b)(1)(A)). A
sister court has explained that standard as follows:
A magistrate judge's finding is clearly erroneous when,
although there may be some evidence to support it, the
reviewing court, after considering the entirety of the
evidence, is “left with the definite and firm
conviction that a mistake has been committed.” A ruling
is contrary to law if the magistrate judge has misinterpreted
or misapplied applicable law. The burden of showing that a
ruling is “clearly erroneous or contrary to law rests
with the party filing the appeal.”
Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D.N.J.
2008) (internal citations omitted) (citation omitted).
Defendants' objection, they argue that they had proven
that it would be to be an undue burden and expense if they
were compelled to travel to Mexico to take Plaintiffs'
depositions. (Defs.' Obj. 3-6). They argue that the
Magistrate Judge failed to properly consider the impact on
them of having Defendants to travel to Mexico and depose
Plaintiffs. (Defs.' Obj. 3-6).
Court has reviewed the Magistrate Judge's Memorandum
Opinion and Order, as well as Defendants' objection. This
Court recognizes the general proposition that “a
plaintiff will be required to make himself or herself
available for examination in the district in which suit was
brought because the plaintiff selected the forum.”
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