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Murillo v. Dillard

United States District Court, W.D. Kentucky, Bowling Green Division

June 2, 2017

MARTIN RICO MURILLO, et al. PLAINTIFFS
v.
TRACY DILLARD, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Greg N. Stivers, Judge United States District Court

         This 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 OVERRULED.

         I. BACKGROUND

         This 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 claim.

         During 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).

         II. JURISDICTION

         This 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).

         III. STANDARD OF REVIEW

         When 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).

         IV. DISCUSSION

         In 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).

         The 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.” McGinley v. Barratta, No. ...


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