Friedman, Esq. v. Nexien, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RONALD J. FRIEDMAN, ESQ., in his capacity as

Trustee of ELLETT BROTHERS, LLC, a/ka/

ELLETT BROTHERS, INC.,

Plaintiff, ORDER

21-CV-03292 (DRH) (JMW)

-against-

NEXIEN, INC.,

Defendant.

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APPEARANCES

Attorney for Plaintiff

SILVERMAN, ACAMPORA LLP

100 Jericho Quadrangle

Suite 300

Jericho, New York 11753

By: Gayle Sharon Gerson

Attorney for Defendant

KIM, CHO & LIM, LLC

460 Bergen Boulevard

Suite 305

Palisades Park, New Jersey 07650

By: Sean Seokchan Kwak

WICKS, Magistrate Judge: oral argument (DE 22), the Court declines

Defendant’s invitation to stay discovery

“[T]he power to stay proceedings is pending the motion to dismiss. Accordingly,

incidental to the power inherent in the motion for a stay is denied.

every court to control the disposition

of the causes on its docket with

economy of time and effort for itself, STATEMENT OF FACTS

for counsel, and for litigants. How

this can best be done calls for the Defendant, Nexien, Inc. (“Nexien”) is

exercise of judgment, which must a corporation organized and existing under

weigh competing interests and the laws of New Jersey operating out of its

maintain an even balance.”1 headquarters located in Ridgefield, New

Jersey. (DE 17-2 at 6.) Defendant also has a

At the nascent stage of this breach of satellite office in South Carolina, located at

contract action, Defendant moved to dismiss 2816 Main Street, Suite B, Newberry, South

on three grounds, namely (1) this Court lacks Carolina. (Id.) Samsung is Defendant’s

personal jurisdiction over Defendant; (2) the largest client, and one of its manufacturing

District of South Carolina, rather than the plants is located in Newberry, South

Eastern District of New York, is the proper Carolina. (Id.)

venue for this action; and (3) the principle of

forum non conveniens dictates that this case Ellett Brothers, Inc. (“Ellett”) is a

should be tried in South Carolina because all South Carolina limited liability company that

evidence and witnesses are located there. was the owner of and was headquartered at

That motion is presently pending before the 267 Columbia Ave., Chapin, South Carolina

Hon. Denis R. Hurley. (DE 14.) If granted, (the “Premises”). (DE 20 at 7.) On June 10,

Defendant’s motion to dismiss would be the 2019, Ellett filed a petition for bankruptcy in

death knell to Plaintiff’s entire case. On the the United States Bankruptcy Court for the

heels of that motion, Defendant now seeks a District of Delaware. (Id.) On November 6,

stay of discovery pending a decision on the 2019, the Bankruptcy Court confirmed a Plan

motion to dismiss. (DE 17.) of Liquidation under which Plaintiff, Ronald

J. Friedman, was designated as the

Defendant, confident in its motion, liquidation trustee for post-confirmation

portends a high likelihood of success on the proceedings. (Id.) All of the assets of the

motion to dismiss. Plaintiff, not surprisingly, debtors, including the Premises, were

is quite pessimistic about Defendant’s transferred to a liquidation trust administered

chances on the dismissal motion. by Plaintiff. (Id.) Plaintiff then engaged the

services of a South Carolina real estate broker

Having reviewed the submissions to market the Premises for lease, and in

(DE 17, 18, 19, 20, 21),2 and having heard September 2020, Defendant contacted

1 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (E.D.N.Y. Oct. 30, 2007) (“The document is not

(Cardozo, J.). actually an affidavit, since it is unsworn, and is not

2Defendant challenged the declaration submitted by admissible as an unsworn declaration because it is

counsel for Plaintiff as non-compliant under 28 U.S.C. undated.”) While the initial filing was indeed non-

§ 1746 since it fails to state that the contents are “true compliant, as it was the declaration of Plaintiff’s

and correct” (DE 19) and, as such, should be attorney rather than Plaintiff, the Court granted leave

considered inadmissible. See Williams v. Keisler, No. during oral argument to permit Plaintiff to resubmit a

07 CV 503 (ARR), 2007 WL 9723294, at *4 compliant declaration, which he did. (See DE 23.)

Plaintiff through his attorney and initiated defendant. (Id.) Defendant then served its

negotiations for Defendant’s lease of the Motion to Dismiss in this action, followed by

Premises. (Id. at 8.) These negotiations took the instant motion for a stay.

place between Plaintiff’s attorney located in

New York and Defendant’s representatives

who were located in New Jersey. (Id.)

APPLICABLE STANDARD ON A

The lease agreement, which was MOTION FOR A STAY

executed on or about November 1, 2020 by

Plaintiff and Defendant’s operations It is axiomatic that the mere filing of

manager, Paul Kim, identifies Plaintiff as the a motion to dismiss or other dispositive

landlord and states his physical New York motion simply does not stay discovery in an

location. (Id.) The lease also provides that action. A party may, however, seek such

rent payments are to be made to the Landlord relief under Fed. R. Civ. P. 26(c). “Although

at his New York address. (Id.) Paul Kim is not expressly authorized by statute or rule, . .

currently a defendant in a criminal action in . the federal district courts have discretion to

the District of South Carolina, concerning impose a stay of discovery pending the

matters relating to his negotiation of the very determination of dispositive motions by the

lease at issue in this case. issuance of a protective order.” Hachette

Distrib., Inc. v. Hudson Cnty. News Co., Inc.,

Pursuant to the lease, Defendant 136 F.R.D. 356, 358 (E.D.N.Y. 1991) (Spatt,

completed its payments for the first two J.) (collecting cases). Rule 26 contemplates

months via ACH payments made to that a court may stay discovery while a

Plaintiff’s New York bank account. (Id. at 9.) motion to dismiss is pending, but only if

In total, Defendant paid approximately “good cause” is shown. Hollins v. U.S. Tennis

$118,057.36 to Plaintiff for the security Ass’n, 469 F. Supp. 2d 67, 78 (E.D.N.Y.

deposit and two monthly rent payments. (Id.) 2006) (citations omitted); see also Chesney v.

On January 21, 2021, Defendant informed Valley Stream Union Free Sch. Dist. No. 24,

Plaintiff by letter of its intent to surrender the 236 F.R.D. 113, 115 (E.D.N.Y. 2006). This

Premises, and that Defendant defaulted under mandate of a showing of “good cause” is

the lease. (Id.) On or about April 6, 2021, critically important because Rule 1 of the

Defendant sued Paul Kim for fraud in South Federal Rules of Civil Procedure advises that

Carolina District Court. However, Plaintiff the Rules “should be construed,

here was not named in the action. (Id.) administered, and employed by the court and

the parties to secure the just, speedy, and

Plaintiff—unaware of the South inexpensive determination of every action

Carolina action—commenced this action on and proceeding.” Fed. R. Civ. P. 1. Indeed,

June 11, 2021. (Id.) On July 21, 2021, a request to stay litigation appears to be the

Defendant filed a Letter Motion objecting to antithesis of that very command. Some

personal jurisdiction and venue with no commentators, for example, have in fact

mention of the South Carolina action. (Id. at questioned whether staying discovery in fact

10.) Thereafter, Defendant filed a motion for stays justice.3 Accordingly, even when both

leave to amend its complaint in the South parties consent to a stay, the court is under a

Carolina action to add Plaintiff as a duty to determine whether a stay is justified.

3 See, e.g., Kevin J. Lynch, When Staying Discovery When a Motion to Dismiss is Pending, 47 Wake Forest

Stays Justice: Analyzing Motions to Stay Discovery L. Rev. 71, 72 (2012).

Cf. Separ v. Cnty. of Nassau, 21-CV-00010, of this action. (Id. at 11.) In addition,

2021 WL 2474263 (E.D.N.Y. June 17, 2021) Defendant argues the Court lacks personal

(unopposed motion to stay). jurisdiction in that Defendant has no contact

with New York, as (1) it is domiciled in New

Motions seeking a stay, require a Jersey; (2) it has its relevant satellite office in

careful balancing of a fact-specific inquiry South Carolina; (3) the lease involves real

and a case-by-case analysis, considering the property in South Carolina; and (4) nearly all

nature and particular circumstances of the aspects of the transaction between Plaintiff

case and the companion dispositive motion. and Defendant occurred in South Carolina.

Thomas v. N.Y. City Dep’t of Educ., 2010 WL (Id.) Finally, Defendant contends that that all

3709923, at *3 (E.D.N.Y. Sept. 14, 2010). factors of the forum non conveniens

As such, courts look to the following factors: analysis—other than the fact that Plaintiff

(1) whether the defendant has made a strong brought the case in his home jurisdiction—

showing that the plaintiff’s claim is weighs in favor of discretionary dismissal.

unmeritorious; (2) the breadth of discovery (Id.)

and the burden of responding to it; and (3) the

risk of unfair prejudice to the party opposing Defendant next asserts that the factor

the stay. See Rivera v. Inc. Vill. of of burdensome discovery weighs heavily in

Farmingdale, No. 06-civ-2613 (DRH) its favor because this forum increases its

(ARL), 2007 WL 3047089, at *1 (E.D.N.Y. financial and other burdens. (Id. at 11–12.)

Oct. 17, 2007) (citing Port Dock & Stone According to Defendant, both it and Plaintiff

Corp. v. Oldcastle Ne., Inc., No. 05-civ-4294 are parties to ongoing litigation in South

(DRH) (ETB), 2006 WL 897996 (E.D.N.Y. Carolina, and all transactions related to

Mar. 31, 2006)). Defendant’s business, witnesses, and

evidence are located in South Carolina. (Id.

It is with these guideposts in mind at 12.) Defendant argues that discovery in

that the Court analyzes Defendant’s New York would require several

application. representatives of Defendant to travel

between the states for discovery and that

THE ARGUMENTS ADVANCED counsel would also need to travel to depose

any witnesses. Defendant cites to Federal

Defendant’s Arguments for a Motion to Rule of Civil Procedure 45(c), which states

Stay that “[a] subpoena may command a person to

attend a trial, hearing, or deposition . . . within

Defendant describes the “most simple 100 miles of where the person resides.” (Id.)

and dispositive argument for the dismissal,” Because New York is more than 100 miles

which it claims is the law of South Carolina. away from South Carolina, Defendant argues

(DE 17-2 at 10.) Defendant alleges this law that discovery in this forum would be

is applicable, which provides that “[a]ctions burdensome. (Id.) In addition, Defendant

which must be tried where subject matter is argues that this action imposes unnecessary

situated . . . for all matters between landlord burden for both Defendant and Plaintiff

and tenant . . . including . . . payment or because both parties will duplicate their

collection of rent.” (Id. (quoting S.C. Code discovery efforts in South Carolina and New

Ann. § 15-7-10).) Defendant claims that the York. (Id.)

choice-of-law provision in the lease and this

provision of South Carolina law is dispositive

According to Defendant, the breadth Plaintiff will suffer no prejudice by staying

of discovery will be broad and necessarily discovery. (Id.)

will include the transactions between Paul

Kim and Plaintiff. (Id.) Paul Kim is no Plaintiff’s Arguments Opposing the Stay

longer in Defendant’s control, but he

purportedly acted as Defendant’s agent in Plaintiff alleges that this Court does

nearly all communications with Plaintiff. have personal jurisdiction based on (1)

(Id.) Defendant will be forced to review Defendant’s initiation of negotiations with

many documents between Paul Kim and Plaintiff, a New York-based trustee; (2)

Plaintiff, and Defendant claims that because negotiations that occurred through email and

Paul Kim was a fraudster, the records are telephonic means, with agents or employees

likely to be fabricated. (Id. at 13.) This will of Defendant communicating with the

force Defendant to attempt to decipher what trustee’s agents in New York; (3) the Lease

is authentic in the records. That Paul Kim’s Agreement’s provision that Defendant’s

residency is in South Carolina further main point of contact would be the trustee, as

burdens discovery in this forum. (Id.) landlord; and (4) Defendant’s submission of

the security deposit, and first month’s rent,

Furthermore, Defendant intends to via ACH transfer to a trust account located in

bring a third-party claim against Paul Kim if New York. (DE 20 at 14.) Along with

the Motion to Dismiss is denied. (Id.) Thus, personal jurisdiction, Plaintiff reasons that a

Defendant argues that proceeding in district court may permit discovery in aid of

discovery in this action now would involve a dismissal motion, and the Court may allow

travel and segmented discovery, whereas a discovery on the limited issue of Defendant’s

stay if and until the Motion to Dismiss is contacts with the state of New York. (Id. at

denied would allow the parties to conduct 11 (citing David Tunick, Inc. v. Kornfeld, No.

discovery concerning the claims, defenses, 91-Civ-7027 (DNE), 1993 WL 6211, at *2

and anticipated third-party complaint (S.D.N.Y. Jan. 6, 1993)).) Plaintiff argues

simultaneously. (Id.) Additionally, that Defendant should not be allowed to

discovery in the South Carolina action, escape such discovery by its Motion to Stay.

Defendant alleges, affords both parties the (Id.)

same discovery opportunity without travel, Additionally, Plaintiff argues that this

and it will be streamlined as Paul Kim is action concerns Defendant’s breach of a

already named as a defendant in that action. lease, and it may not defeat a breach of

(Id.) contract claim by contending that a third

party tricked or defrauded it into entering the

As to the last prong of the analysis— contract. (Id. at 5.) The pending actions

undue prejudice—Defendant rests its against Paul Kim are not relevant here, and

argument on two cases, Giminez v. L. Offs. of Plaintiff argues that Defendant can pursue

Hoffman & Hoffman, 12-cv-0669, 2012 WL Paul Kim to indemnify it for its losses. (Id.

2861014 (E.D.N.Y. July 11, 2012) and at 6.) Because Plaintiff states that the South

Separ, 2021 WL 2474263, which found that Carolina Action is irrelevant here and

because those actions were in their infancy, a frivolous, he argues a stay of discovery is not

stay of discovery would pose little prejudice warranted on the basis of the pendency of the

to plaintiffs. (Id. at 14.) Defendant argues South Carolina action. (Id.)

that the parties have not begun discovery,

except for 26(a)(1) initial disclosures, thus

Plaintiff turns to Defendant’s generate a substantial recovery. (Id.)

contention that the law of South Carolina, Plaintiff argues that any delay to the

which requires that any action between a resolution of his claim harms Plaintiff and

landlord and tenant be tried in the county every creditor involved. (Id.)

where the subject premises is located, will

dismiss Plaintiff’s claim. (Id. at 15.) ANALYSIS

Plaintiff argues that federal courts sitting in

diversity, like this Court, must apply the The Court first turns to whether

substantive law of the state governing the Defendant has made a strong showing that

dispute, but the procedural laws of the federal Plaintiff’s claims are unmeritorious. This is

courts. (Id. (citing Hanna v. Plumer, 380 done, however, without prejudging the

U.S. 460, 465 (1965)).). Thus, Plaintiff motion to dismiss that is sub judice before

contends that because federal venue rules Judge Hurley. Rather, the task of analyzing

apply here—as venue is a procedural issue— the merits of the claims is merely one piece

and because the Lease Agreement does not of the larger puzzle fact-specific that must be

have a forum selection clause, Plaintiff was undertaken on a stay application.

within its right to commence action in New

York. (Id. at 16.) Plaintiff argues that the Defendant’s initial argument relying

choice-of-law provision is substantive law on the choice of law provision in the contract

which governs the dispute and that it applies at issue appears meritless. It is well-settled

to cases brought before the South Carolina that a choice of law provision does not dictate

state courts. (Id.) Moreover, Plaintiff asserts where a litigation will proceed. Harrington

that the venue chosen by Defendant for the v. Carter, 17-cv-2343 (ADS) (ARL), 2017

South Carolina Action is still not the county WL 4621618, at *3 (E.D.N.Y. Oct. 7, 2017).

in which Section 15-7-10 of South Carolina’s Thus, the provision stating that South

law would compel the case to be heard, as the Carolina law applies to any disputes arising

premises in question is located in Lexington out of the contract has no bearing on venue.

County and Defendant selected Columbia And even to initially consider South Carolina

County as the venue. (Id. at 17.) law, which, on its face, dictates that matters

concerning landlord-tenant disputes must

Plaintiff contends that its discovery proceed in the jurisdiction where the property

demands are inherently narrow because they is located, this Court must nonetheless apply

are directed at ascertaining the scope of federal venue principles, as venue is a matter

Defendant’s contacts with New York in of procedure rather than substance. Martinez

connection with the lease, as well as his claim v. Bloomberg LP, 740 F.3d 211, 220 (2d Cir.

for indemnification of any liability on the 2014) (“Questions of venue . . . are

Mechanic’s lien. (Id. at 18.) essentially procedural, rather than

substantive, in nature, and therefore should

Finally, Plaintiff argues that a be governed by federal law.”) (internal

substantial risk of prejudice to Plaintiff is quotation marks and citations omitted); see

present if a stay is imposed. (Id. at 19.) Am. Dredging Co. v. Miller, 510 U.S. 443,

Because Plaintiff is the trustee charged with 453 (1994) (noting that “venue is a matter

liquidating assets of a bankruptcy debtor for that goes to process rather than substantive

the benefit of the debtor’s creditors, rights”). Thus, Defendant’s threshold

Plaintiff’s claim against Defendant is a argument regarding the effect of the contract

considered a valuable asset, which could provisions on venue appears meritless.

allegations which controvert their prima facie

As to the personal jurisdiction case.” Id. (quoting Sodepac, S.A. v. Choyang

argument in the dismissal motion, “the court Park in Rem, No. 02 Civ 3927 (SAS), 2002

must consider whether the lawsuit “aris[es] WL 31296341, at *2 (S.D.N.Y. Oct. 10,

out of or relat[es] to the defendant’s contacts 2002). When a court has not held any

with the forum” to determine if jurisdiction hearings or trial on the merits, like here, “‘all

exists. Laydon v. Mizuho Bank, Ltd., No. 12 pleadings and affidavits must be construed in

Civ. 3419 (GBD), 2015 WL 1515358, at *1 the light most favorable to [plaintiff] and all

(S.D.N.Y. Mar. 31, 2015) (quoting doubts must be resolved in . . . plaintiff’s

Helicopteros Nacionales de Colombia, SA. v. favor.”’ Id. (quoting Landoil Res. Corp. v.

Hall, 466 U.S. 408, 414–15 (1984)). To Alexander & Alexander Servs., Inc., 918 F.2d

determine minimum contacts, courts focus on 1039, 1043 (2d Cir. 1990)).

“‘the relationship among the defendant,

forum, and the litigation.’” Id. (quoting While Defendant asserts a lack of

Colder v. Jones, 465 U.S. 783, 788 (1984)). jurisdiction argument, this claim is in sharp

“[T]he plaintiff cannot be the only link dispute and does not, on its face, make a

between the defendant and the forum.” strong showing that Plaintiff’s claims lack

Walden v. Fiore, 571 U.S. 277, 286 (2014). merit. First, Plaintiff alleges that

In New York, CPLR § 302 governs, and Defendant’s lease agreement with Plaintiff, a

“specific jurisdiction ‘depends on an resident of New York, payments to Plaintiff’s

affiliation between the forum and the New York bank, and negotiations with

underlying controversy, principally, activity Plaintiff, a trustee in New York, is sufficient

or an occurrence that takes place in the forum to establish that Defendant purposely availed

State and is therefore subject to the State’s itself of New York. See Polish Army

regulation.’” Godoy v. BMW of N. Am., LLC, Veterans of Am., Inc. v. Stasiewicz, No. 20-

16-CV-5502(DRH)(SIL), 2018 WL CV-3419 (MKB), 2021 WL 3130090, at *5

4608200, at *4 (E.D.N.Y. Sept. 25, 2018) (E.D.N.Y. July 23, 2021) (“Under New York

(quoting Goodyear Dunlop Tires Operations, state law, a defendant’s lack of physical

S.A. v. Brown, 564 U.S. 915, 919 (2011)). presence in the state is not dispositive of

New York’s long-arm statute set forth in whether he transacts business within the

CPLR § 302 states that courts have “specific state, ‘so long as the defendant’s activities

jurisdiction over non-domiciliaries ‘who, in [within the state] were purposeful and there

person or through an agent . . . (i) transacts is substantial relationship between the

business within the state or contracts transaction and the claim asserted”’) (quoting

anywhere to supply goods or services in the Fischbarg v. Doucet, 9 N.Y.3d 375, 380

state.”’ Id. (citation omitted). (2007)). ‘“Purposeful activities’ are ‘those

with which a defendant, through volitional

On a motion to dismiss for lack of acts, avails itself of the privilege of

personal jurisdiction, Plaintiff bears the conducting activities within the forum State,

burden of showing jurisdiction and, prior to thus invoking the benefits and protections of

discovery, Plaintiff need only show facts its laws.’” Id. (quoting Eades v. Kennedy, PC

constituting a prima facie showing in order to Law Offs., 799 F.3d 161, 167–68 (2d Cir.

defeat a motion to dismiss. Hollins, 469 F. 2015)). Defendant, although not physically

Supp. 2d at 70. “Plaintiffs may rely entirely present in the state of New York, contracted

on allegations of fact, and they will prevail with Plaintiff, a New York resident, and sent

even if the moving party makes contrary a number of payments to Plaintiff’s New

York bank account as required in the lease has made a strong showing on this branch of

agreement. While undoubtedly a close call, its motion.

this likely satisfies the purposeful contacts

required for specific jurisdiction. See FIA The parties’ arguments regarding the

Leveraged Fund v. Grant Thornton LLP, 150 burden and breadth of discovery are both

A.D.3d 492, 493–94 (2d Dep’t 2017) (finding persuasive and, taken together, do nothing to

personal jurisdiction where defendant move the needle in either direction.

communicated with plaintiff via email, the Defendant’s position is that all documents,

agreement at issue had wire instructions into witnesses, and anticipated third-party

New York, and Defendant transferred funds defendants are located in South Carolina.

to a New York bank). At a minimum, Moreover, the parties are already engaged in

Defendant has not made the required “strong litigation in that state, which would likely

showing” to support a stay of discovery. lead to duplicative discovery. Plaintiff, for its

part, points to the fact that this litigation

Next, the Court considers concerns the breach of a lease agreement. As

Defendant’s forum non conveniens argument. such, discovery will be minimal and not

That doctrine, of course, allows a court to burdensome, but rather “inherently narrow.”

refrain from exercising its jurisdiction over a Although both parties advance valid

case notwithstanding that such jurisdiction is arguments on that point, the Court notes the

technically proper. Flynn v. Gen. Motors, recent prevalence and predicted permanency

Inc., 141 F.R.D. 5, 8 (E.D.N.Y. 1992). A of conducting depositions virtually,

motion to dismiss based on forum non alleviating a number of issues raised by

conveniens “is a fact-intensive inquiry that Defendant.

proceeds in three steps,” requiring the district

court to “(i) determine the degree of Finally, as to the undue prejudice

deference to be accorded to plaintiff’s choice prong, although both parties make persuasive

of forum; (ii) determine whether an adequate arguments regarding whether there would be

alternative forum to entertain plaintiff’s undue prejudice to Plaintiff if a stay were

claims exists; and (iii) balance the private and granted, the Court finds this prong neutral as

public interest factors[.]” Celestin v. well. Defendant contends that because the

Martelly, 450 F. Supp. 3d 264, 272 n.6 South Carolina action is on-going, Plaintiff

(E.D.N.Y. 2020). will be able to conduct discovery related to

the lease agreement in that case while the

Although Plaintiff’s opposition does motion to dismiss here is resolved. Plaintiff

not address Defendant’s argument regarding takes the stance that, given his position as a

forum non conveniens and Defendant does liquidation trustee, time is of the essence for

make a persuasive argument, “unless the him to round up assets of the bankruptcy

balance is strongly in favor of the defendant, estate and satisfy creditors.

the choice of forum should rarely be

disturbed.” Gulf Oil Corp. v. Gilbert, 330 The Court concludes that a stay of

U.S. 501, 508 (1947). Based on this discovery here does not advance the ends of

principle, paired with the fact that forum non justice. The parties’ dispute over the lease—

conveniens is a discretionary factor analysis whether litigated here, in South Carolina or

employed by the district court, it is difficult any other venue—will require discovery.

to conclude at this juncture that Defendant Discovery produced here, could very well be

used elsewhere even if this case is dismissed.

CONCLUSION

In sum, discovery should not be

stayed in this case given that Defendant has

not made a strong showing that it will

succeed on the motion to dismiss, even if the

burden and prejudice prongs weigh in neither

parties’ favor. Accordingly, in the exercise

of discretion, the motion for a stay of

discovery is hereby DENIED.

Dated: Central Islip, New York

November 9, 2021

S O O R D E R E D:

James M. Wicks

/s/

James M. Wicks

United States Magistrate Judge