Cordero v. Voltaire, LLC, No. A-13-CV-253-LY, slip op. (W.D. Tex. Dec. 6, 2013)(Austin, M.J.)

In this Fair Labor Standards Act case, the issue was whether Voltaire had alleged viable counterclaims and affirmative defenses.  Voltaire’s counterclaim charged one employee committed fraud by submitting work statements for “falsified and inflated hours” and billing for time and expenses on personal projects.  Slip op. at 8.  Magistrate Judge Austin found that this was a compulsory counterclaim over which there supplemental jurisdiction under 28 U.S.C. § 1367(a).  Slip op. at 7-9.  But he concluded that Voltaire’s theft, conversion, breach of fiduciary duty, and conspiracy claims were permissive, and that there was no independent basis for federal jurisdiction; therefore, he recommended the dismissal of those claims under Rule 12(b)(1).  Slip op. at 10-13 (theft, conversion, and breach of fiduciary duty) and 16 (sua sponte reaching Voltaire’s conspiracy counterclaim).  Magistrate Judge also recommended that Voltaire’s unclean hands and estoppel defenses be stricken under Rule 12(f).  Slip op. at 18-20.  But he concluded that its offset defense (based on allegedly falsified or inflated hours) as well as good faith defense should stand.  Id. at 15-16.

Aubrey v. Barlin, No. A-10-CV-076-SS, slip op. (W.D. Tex. Dec. 6, 2013)(Austin, M.J.)

In this order, Magistrate Judge Austin disposed of a series of discovery motions and other matters related to the plaintiffs’ filing of an amended complaint after a status conference at which they reported to Judge Sparks that little discovery remained to be done before trial.  Slip op. at 1-3.  The amended complaint added additional parties, precipitating disputes over the discovery directed at the new parties and new claims.  Id. at 3.  Noting that he had earlier recommended the amended complaint be stricken, Magistrate Judge Austin attempted to cabin discovery to the limitations agreed to before Judge Sparks at the status conference (the particulars involved denying the plaintiffs’ motion to compel, quashing a batch of plaintiff-issued subpoenas, granting a protective order, and assessing costs and fees against the plaintiffs).  Id. at 3-5.

Martinez v. Texas Workforce Comm’n—Civil Rights Division, No. A-11-CV-837-LY, slip op. (W.D. Tex. Dec. 3, 2013)(Austin, M.J.)

A few days before Martinez’s deposition, his counsel alerted the defense that he would need to leave mid-afternoon to make a wedding in Houston.  Slip op. at 1.  The parties agreed to start the deposition early, but when Martinez’s counsel exited after roughly six hours, the deposition had not been concluded.  Id.  Martinez opposed the continuation of his deposition, arguing that TWC had agreed to conclude the deposition in a day, “started the deposition four minutes late, [and] wasted time asking irrelevant background questions.”  Id. at 2.  Magistrate Judge Austin found that Martinez’s position on this issue borders on the frivolous.”  Id.  The deposition had not been terminated for any of the reasons permitted by Rule 30(d)(3)(A) (bad faith, annoyance, oppression, or harassment).  Thus, terminating the deposition “before it was completed, and before the seven hours permitted by the rules had elapsed, plainly violated the Federal Rules of Civil Procedure.”  Id.