United States District Court, N.D. Texas, Dallas Division
FRANCISCO VELAZQUEZ, and all others similarly situated under 29 U.S.C. 216 b, Plaintiff,
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.
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE
El 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). See Dkt. No. 32 (the
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). See Dkt. No. 35.
Francisco Velazquez filed a response, see Dkt. No.
39, and Defendants filed a reply, see Dkt. No. 43.
The Court determines that a hearing or oral argument is not
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].
Velazquez has sued Defendants for violations of the Fair
Labor Standards Act (“FLSA”). See Dkt.
filed a Partial Motion to Dismiss and/or Alternatively,
Motion for More Definite Statement. See Dkt. No. 11.
The Court denied that motion, noting that “Defendants
EPR 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. 17 at 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 the
day-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).
Velazquez noticed Mr. Bazaldua for a deposition on May 22,
2017 in Austin, Texas. See Dkt. No. 33 at 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.
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”; and that
“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. 32 at 2-4.
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
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. See Id.
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 ...