Velazquez v. El Pollo Regio Ip, LLC, 3:15-cv-3170-M

• Decision Date: 25 May 2017
• Docket Number: No. 3:15-cv-3170-M,3:15-cv-3170-M
• Parties: FRANCISCO VELAZQUEZ, and all others similarly situated under 29 U.S.C. 216 (b), Plaintiff, v. EL POLLO REGIO IP, LLC, EL POLLO REGIO MANAGEMENT, LLC, EL POLLO REGIO, INC., DISTRIBUIDORA EL REGIO, INC., RICARDO CAMARENA, and JUAN J. BAZALDUA,, Defendants.
• Court: U.S. District Court — Northern District of Texas

FRANCISCO VELAZQUEZ,and all others similarly situated under 29 U.S.C. 216 (b), Plaintiff, v. EL POLLO REGIO IP, LLC, EL POLLO REGIO MANAGEMENT,LLC, EL POLLO REGIO, INC., DISTRIBUIDORA EL REGIO, INC.,RICARDO CAMARENA, and JUAN J. BAZALDUA,, Defendants.

No. 3:15-cv-3170-M

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

May 25, 2017

MEMORANDUM OPINION AND ORDER

DefendantsEl Pollo Regio IP, LLC, El Pollo Regio Management, LLC, El Pollo Regio, Inc., Distribuidora El Regio, Inc., Ricardo Camarena, and Juan J. Bazaldua("Mr. Bazaldua"; together, "Defendants") have filed an Emergency Motion for Protective Order Quashing Plaintiff's Notice of Deposition of Juan Bazaldua under Federal Rule of Civil Procedure 26(c)(1).SeeDkt. No. 32(the "MPO").

Chief Judge Barbara M. G. Lynn has referred the MPO to the undersigned United States magistrate judge for determination under 28 U.S.C. § 636(b).SeeDkt. No. 35.

PlaintiffFrancisco Velazquez filed a response, seeDkt. No. 39, and Defendants filed a reply, seeDkt. No. 43.The Court determines that a hearing or oral argument is not necessary.

For the reasons and to the extent explained below, the Court DENIES Defendants' Emergency Motion for Protective Order Quashing Plaintiff's Notice of Deposition of Juan Bazaldua[Dkt. No. 32].

Background

Mr. Velazquez has sued Defendants for violations of the Fair Labor Standards Act("FLSA").SeeDkt. No. 1.

Defendants filed a Partial Motion to Dismiss and/or Alternatively, Motion for More Definite Statement.SeeDkt. No. 11.The Court denied that motion, noting that "DefendantsEPR IP, EPR Mgt., EPR Inc., Camarena, and Bazaldua move to dismiss the Complaint on the sole ground that Plaintiff has failed to sufficiently allege that they were his 'joint employer' for purposes of liability under the FLSA" and ruling, among other things, that Mr. Velazquez's factual allegations in his complaint "are sufficient under Section 203(d) of the FLSA and the economic reality test for the Court to draw a reasonable inference that Defendants Bazaldua and Camarena were Plaintiff's 'employer' under the FLSA."Dkt. No. 17at 3, 6.The Court further explained that

[w]hile Defendants are correct that the Complaint does not allege that either Bazaldua or Camarena possessed the ability to hire or fire employees, or maintained employment records, "a party need not establish each element [of the economic reality test] in every case."Plaintiff has alleged that each individual Defendant had control over theday-to-day operations of one or more of Defendant Companies, as well as control of his work and schedule, and, in the case of Defendant Bazaldua, his pay.These are sufficient alleged facts under the economic reality test for the Court to draw the reasonable inference that Camarena and Bazaldua were Plaintiff's joint employers under the FLSA.

Id. at 6(citations omitted).

Mr. Velazquez noticed Mr. Bazaldua for a deposition on May 22, 2017 in Austin, Texas.SeeDkt. No. 33at 6-7 of 36.The parties dispute the circumstances behind the scheduling and noticing of this deposition, but the Court need not get into those matters because it has already ordered that "[a]ny requirement to comply with the deposition notice of Juan Bazaldua is stayed pending the Court's resolution of" the MPO. Dkt. No. 36.

The basis for Defendants' MPO still at issue lies in their assertions that, "[d]espite the fact that Plaintiff and indeed - all witnesses deposed to date - have confirmed that [Distribuidora El Regio, Inc.] was Plaintiff's only employer during the relevant period of time, Plaintiff has brought his claims against multiple entities and individuals, including Mr. Juan Bazaldua"; that "Plaintiff has sued Mr. Bazaldua as a 'joint employer' for alleged unpaid overtime and minimum wage under the [FLSA] with next to no facts or allegations as to how or why he supposedly has any connection whatsoever to this lawsuit, or to Plaintiff's employment"; that, "after four corporate representative depositions and three individual depositions (including Plaintiff's), there is no testimony to support this allegation or the claims that Mr. Bazaldua somehow controlled or 'ran the day-to-day operations' of [Distribuidora El Regio, Inc.], was responsible for paying Plaintiff's wages, and/or controlled his work and schedule"; andthat "there is no reasonable basis to believe that Mr. Bazaldua has any knowledge about Plaintiff's employment, or that he exercised any control over the decision making related thereto."Dkt. No. 32at 2-4.

According to Defendants, "[i]n that Plaintiff is unwilling to even discuss alternate dates for Mr. Bazaldua's deposition, especially given that he has no knowledge of any fact relevant to the claims or defenses of any party to this case, Defendants are now forced to move for a protective order to quash Plaintiff's deposition notice.Plaintiff's attempt to subject Mr. Bazaldua to deposition - given the undisputed facts - can be seen as nothing other than an attempt to vexatiously increase the cost of this litigation, to unduly prejudice Defendants and is otherwise unduly burdensome and harassing."Id. at 4.Defendants invoke Rule 26(c)(1), contending that "[i]t is because of the potential for undue burden and expense that Defendants bring this Motion and seek the Court's assistance."Id. at 5.They argue that Mr. Bazaldua was improperly sued by Mr. Velazquez in the first instance, that Mr. Bazaldua should be dismissed from this case, and that there is no good faith basis to subject him to deposition at all because "[t]he discovery conducted in this case confirms that Mr. Bazaldua cannot be considered an employer of Plaintiff under the FLSA."Id. at 5, 6.

Defendants further assert that there is no reason to believe that Mr. Bazaldua has knowledge of relevant facts and that any testimony that he could arguably provide would be completely irrelevant or entirely duplicative at best.Seeid. at 6.According to Defendants,

[d]espite having already deposed: (1) the corporate representative for all of the entities named as parties to the lawsuit; (2)[Distribuidora El Regio, Inc.'s] actual owner, Ricardo Camarena; and (3)[Distribuidora El Regio, Inc.'s] warehouse manager, Antonio Limongi, who directly oversaw Plaintiff's work during the relevant time period, Plaintiff now seeks the deposition of an individual defendant who was improperly named in the first place, and who, by all accounts, does not have any knowledge of facts relevant to Plaintiff's FLSA claims.Requiring Mr. Bazaldua to travel to Dallas for deposition and/or for attorneys from two Dallas law firms to travel to Austin for his deposition is not warranted here and will serve no purpose but to needlessly increase the cost of this litigation.

What can Plaintiff possibly expect that Mr. Bazaldua will testify?That contrary to the entirety of witness testimony and documents produced he was some sort of "secret" owner of [Distribuidora El Regio, Inc.] that no one ever knew about?That he covertly made employment decisions regarding a delivery driver he never met or spoke to?

It is no wonder that, despite reasonable inquiries by Defendants' counsel, Plaintiff has failed to justify the burden and inconvenience that would necessarily result from proceeding with this deposition.Mr. Bazaldua's deposition can only be viewed as a fishing expedition, the purpose of which is not discover facts, but rather to harass and to distract Defendants with unnecessary discovery.When discovery is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive,"the Court"must limit the frequency or extent of discovery."Fed. R. Civ. P. 26(c)(1).To the extent, if any, Plaintiff has a legitimate need for any additional and/or non-duplicative information from Mr. Bazaldua, he should be required to obtain it through less intrusive means.

Id. at 6-7.

Defendant ask the Court to "order that Mr. Bazaldua need not appear for deposition."Id. at 7.

Mr. Velazquez responds that, under Federal Rule of Civil Procedure 26(b)(2)(C)(i), "requiring Mr. Bazaldua, a named defendant, to appear for deposition in this case will not impose an undue burden or expense and his testimony is notunreasonably cumulative or duplicative, nor can it be obtained from some other source."Dkt. No. 39at 3.

Mr. Velazquez contends that, where Defendants"argue that Mr. Bazaldua was improperly identified as a Defendant in this case,""[t]he Court has already addressed this issue and denied Defendants' motion to dismiss on July 11, 2016."Id.

Mr. Velazquez further responds that, although "Defendants contend that there is no evidence in this case to support a finding that Mr. Bazaldua is Plaintiff's employer as defined by the FLSA,""Defendants acknowledged that Distribudora El Regio, Inc. is the distribution branch of a larger 'Mexican food business'" and that "deposition testimony to date shows that Mr. Bazaldua has a significant presence in the operations of the El Pollo Regio 'Mexican food business.'"Id. at 3, 5.

Mr. Velazquez argues that, while "Defendants would have Plaintiff speculate as to what Mr. Bazaldua will know,""[t]he only person who can testify as to what Mr. Bazaldua actually knows is Mr. Bazaldua himself" and that "Defendants have cited to no authority for the proposition that it is improper to notice a named defendant to appear for deposition," where, "[w]ithout Mr. Bazaldua's testimony, it will be impossible for any party to prove definitively what Mr. Bazaldua does or does not know about the facts related to this case."Id. at 5.

Mr. Velazquez further contends that he

is aware of no "less intrusive means," and Defendants have identified none, to obtain the testimony of a party than a deposition.Defendants' last position on this issue was that Mr. Bazaldua's deposition still needed to be scheduled and that he would need to be deposed near his place

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