Tillman v. Ally Financial Inc.
ORDER denying 30 Defendant's Motion to Phase Discovery and to Reconsider the Deadline to File a Motion for Class Certification. Signed by Magistrate Judge Carol Mirando on 10/12/2016. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONELL L. TILLMAN, individually
and on behalf of all others similarly
Case No: 2:16-cv-313-FtM-99CM
ALLY FINANCIAL INC.,
This matter comes before the Court upon review of Defendant’s Motion to
Phase Discovery and to Reconsider the Deadline to File a Motion for Class
Certification (Doc. 30) filed on June 29, 2016. Plaintiff opposes the requested relief.
On April 28, 2016, Plaintiff filed this lawsuit against Defendant on the ground
that Defendant has violated the Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227 et seq.
Doc. 1 at 1.
automotive financiers in the world.
Defendant allegedly is one of the largest
Id. ¶ 4. Plaintiff claims that in or around
December 2015, Defendant called him numerous times to reach an individual named
Phillip Everett. Id. ¶ 9. Plaintiff notified Defendant that he is not Phillip Everett,
and requested Defendant to cease further calls to him.
Id. ¶ 10.
however, continued to call Defendant from January 2016 to March 2016. Id. ¶ 11.
Several of Defendant’s calls were artificial and pre-recorded voice messages. Id. ¶
14. Plaintiff asserts that he is not the person whom Defendant attempted to reach,
and has not provided his consent to receive calls from Defendant for any purpose.
Id. ¶¶ 17-18. In this lawsuit, Plaintiff seeks to bring his claim on behalf of a class
that consists of people who received non-consented calls from Defendant within four
years of the Complaint. Id. ¶¶ 38-39.
On May 5, 2016, the Court issued a Related Case Order and Track Two Notice,
ordering the parties to meet within thirty (30) days after service of the Complaint
(Doc. 1) upon Defendant or Defendant’s first appearance to prepare a Case
Management Report (“CMR”). Doc. 4. The Court also ordered the parties to file the
CMR within fourteen (14) days after the meeting. Id. at 2. On June 13, 2016, the
parties jointly moved to change this case’s track designation, which the Court denied
without prejudice. Docs 14, 21. The Court explained that as of the Order’s date,
Plaintiff had not filed a motion for class certification, and no class had been certified.
Doc. 21 at 1.
Furthermore, the Court stated that because the Complaint’s
allegations are not complex in nature, the case does not need to be on a three-year
track. Id. Since then, Plaintiff has not filed a motion for class certification and has
up to November 28, 2016 to file one. 1 Doc. 26.
On June 21, 2016, Plaintiff moved for extension the deadline of July 27, 2016 to file
a motion for class certification to March 6, 2017. Doc. 25. Defendant agreed to the
requested relief. Doc. 25. The Court granted in part the motion for extension (Doc. 25) and
extended the deadline to November 28, 2016 because that should provide sufficient time for
discovery concerning class certification. Doc. 26 at 2.
On June 28, 2016, Defendant filed a Motion to Dismiss Plaintiff’s Complaint
and Strike Class Allegations, alleging that Plaintiff does not has a standing to bring
this case and Plaintiff’s class is facially uncertifiable. Doc. 29. Soon after, on July
6, 2016, the parties filed an agreed CMR, setting the deadline for class certification
issues for Plaintiff to October 17, 2016 and for Defendant to November 14, 2016.
Doc. 31. The CMR shows the parties’ dispute over discovery as Defendant contends
that phasing of discovery is necessary in light of its motion to dismiss (Doc. 29), while
Plaintiff argues that phasing discovery is prejudicial to Plaintiff, and Defendant’s
motion (Doc. 29) does not change the analysis. Doc. 31 at 11-12.
a. Defendant’s motion to phase discovery (Doc. 30)
On June 29, 2016, Defendant filed the motion to phase discovery and
reconsider the deadline to file a motion for class certification. Doc. 30. Defendant
seeks to phase discovery into three stages: (1) discovery into the merits of Plaintiff’s
individual claims for 120 days, then (2) discovery into the requirements under Rule
23 of the Federal Rules of Civil Procedure for certification of a class for 180 days, and
(3) class merits discovery, which includes discovery into the claims and defenses of
individual class members, to be reserved until after Plaintiff’s class is certified. Id.
at 22; Doc. 35 at 5. Defendant distinguishes each discovery phase as follows:
Discovery regarding the merits of Plaintiff’s individual claims include:
i)  Plaintiff’s standing to assert his claim; ii) evidence regarding the
elements of Plaintiff’s individual claims; and, iii) evidence regarding
[Defendant]’s defenses to Plaintiff’s individual claims, etc.
Class certification discovery includes, e.g.: i) the purported agency
relationship between [Defendant] and vendors; ii) [Defendant]’s
applicable policies and procedures; and, iii) the equipment used to place
calls to putative class members.
Class merits discovery includes: i) information regarding the identity of
class members; ii) information regarding the number of calls received by
each class member; iii) the specific documents reflecting [Defendant]’s
express consent to call each of the class members; iv) the content of
individual calls; and, v) information regarding the date and amounts of
payments made by specific accountholders.
Doc. 30 at 8.
Defendant asserts that discovery specific to Plaintiff’s claim is necessary
because Plaintiff may not have Article III standing and has not pleaded valid claims.
Id. at 13-15. With respect to class merits discovery, Defendant argues that because
Plaintiff has not properly defined a class, Plaintiff’s class definition leads to abusive
discovery such as discovery requests seeking Defendant’s voluminous records of calls
and confidential financial information. Id. at 18-21. As a result, in the interest of
judicial economy and efficiency, Defendant believes that merits discovery should be
reserved until the issue of class certification is decided. Id. at 9-12.
In opposition to the motion, Plaintiff argues that phasing discovery as
suggested by Defendant will delay this action and prevent Plaintiff from obtaining
relevant discovery prior to class certification. Doc. 35 at 1. Defendant’s proposed
deadlines would prohibit Plaintiff from conducting any class certification discovery
prior to October 21, 2016, leaving approximately one month until the deadline of
November 28, 2016 to file a motion for class certification. Id. at 5-6. Furthermore,
Plaintiff asserts that the question on Plaintiff’s standing is jurisdictional and does
not require discovery to be resolved. Id. at 7. Thus, delaying discovery on class
certification after resolving the merits of Plaintiff’s individual claims only risks
mooting Plaintiff’s claim if he prevails on summary judgment. Id.
Lastly, Plaintiff argues that Defendant’s phasing reserves relevant discovery
issues for the wrong discovery phases, which causes an unnecessary delay to Plaintiff.
Id. at 7-9.
For example, Defendant reserves certain issues relevant to class
certification, including information regarding the identity of class members and the
specific documents reflecting Defendant’s consent to call each class member, for the
merits discovery phase. Id. at 8. The parties’ disputes over what discovery issues
fall into each discovery phase will lead to unnecessary court intervention and waste
of time and resources. Id. at 10.
The Court finds persuasive Plaintiff’s argument that discovery should not be
phased. A party moving for class certification has a burden of proof to establish the
propriety of class certification. Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322
(11th Cir. 2008). The decision to certify a class must “rest on a rigorous analysis of
the requirements of Rule 23.” Busby, 513 F.3d at 1322 (internal quotations omitted
and citations omitted).
The putative class must meet each of the requirements
specified in Rule 23(a) and at least one of the requirements set forth in Rule 23(b).
Id. In reaching its decision, the district court may consider both the allegations of
the complaint and the evidentiary submissions of the parties. Singer v. AT & T
Corp., 185 F.R.D. 681, 685 (S.D. Fla. 1998) (citing Blackie v. Barrack, 524 F.2d 891,
901 n.17 (9th Cir.1975)). As an initial matter, however, the Court must determine
whether at least one named class representative has standing to raise a class claim.
Prado-Steinman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000).
Moreover, prior to reviewing Rule 23 requirements, the court also must determine if
the class is adequately defined. Singer, 185 F.R.D. at 685 (citing DeBremaecker v.
Short, 433 F.2d 733, 734 (5th Cir.1970)).
Here, contrary to Defendant’s argument that there is a “crystal divide between
class merits discovery and everything else,” the Court does not see such a clear divide
between the issues that fall into each discovery phase as Plaintiff suggests. Doc. 30
at 13. In its motion to phase discovery, Defendant argues that Plaintiff has not
adequately defined a class and does not have a standing to bring his claim. Id. at
13-21. Defendant also has raised the same issues in its motion to dismiss and strike
Doc. 29; Doc. 35 at 8-10.
The Court must examine the same
issues again in analyzing Plaintiff’s motion for class certification when he files one.
See Prado-Steinman ex rel. Prado, 221 F.3d at 1279; Singer, 185 F.R.D. at 685.
Therefore, in opposing Defendant’s motion to dismiss and the motion to phase
discovery, Plaintiff must address the issues that inevitably will appear in his future
motion for class certification. Docs. 29, 30; see Prado-Steinman ex rel. Prado, 221
F.3d at 1279; Singer, 185 F.R.D. at 685.
unnecessarily delays Plaintiff’s discovery. Doc. 35 at 8-10. Defendant proposes to
reserve “information regarding the identity of class members” and “regarding the
number of calls received by each class member,” and “the specific documents
reflecting [Defendant’s] express consent to call each of the class members,” until the
very last discovery phase, class merits discovery. Doc. 30 at 8. Plaintiff, however,
may need such information prior to filing a motion for class certification, because
when he files a motion for class certification, he carries the burden of proof and must
demonstrate his compliance with Rule 23. See Busby, 513 F.3d at 1322; Brown v.
Electrolux Home Prods., Inc., 817 F.3d 1225, 1234 (11th Cir. 2016); Doc. 35 at 8-9.
The Court also finds that “the purported agency relationship between [Defendant]
and vendors” and “[Defendant’s] applicable policies and procedures,” the issues
Defendant purports to reserve for the class certification discovery phase, may help
Plaintiff prove the merits of his individual claims. Doc. 35 at 9. For the reasons
above, the Court holds that the issues cannot be divided into separate discovery
phases as Defendant proposes. Doc. 30.
In addition, both Defendant and Plaintiff cite a number of cases from this
District, which clearly reject phasing discovery when “the issues related to class
certification and the merits of [the parties’] case are inextricably intertwined.” See,
e.g., Griffith v. Landry’s, Inc., No. 8:14-cv-3213-T-35JSS, 2015 WL 6468134, at *1
(M.D. Fla. Oct. 9, 2015). Defendant’s argument that phasing discovery is in the
interest of judicial economy and resources does not apply when “the line between
‘class issues’ and ‘merits issues’ is practically difficult, if not impossible, to
determine.” Lakeland Reg’l Med. Ctr,, Inc. v. Astellas US, LLC, No. 8:10-cv-2008-T33TGW, 2011 WL 486123, *2 (M.D. Fla., Feb. 7, 2011). Here, because the issues
cannot be divided into separate discovery categories, the Court declines to exercise
its discretion to phase discovery. Cabrera v. Gov’t Emps. Ins. Co., No. 12-61390-CIV,
2014 WL 2999206, *8 (S.D. Fla. July 3, 2014) (“Although Defendant is correct that
courts may elect to bifurcate class-certification discovery and merits discovery, courts
may also decline to exercise that discretion.”).
b. Defendant’s Motion to Reconsider the Court’s Order of June 23, 2016
Extending the Certification Deadline (Doc. 30)
“Reconsideration of a court's previous order is an extraordinary remedy and,
thus, is a power which should be used sparingly.” Carter v. Premier Rest. Mgmt.,
No. 2:06-CV-212-FTM-99DNF, 2006 WL 2620302, at *1 (M.D. Fla. Sept. 13, 2006)
(citing Am. Ass’n of People with Disabilities v. Hood, 278 F. Supp. 2d 1337, 1339 (M.D.
Fla. 2003)). Courts have recognized three grounds to justify reconsideration: “(1) an
intervening change in the controlling law; (2) the availability of new evidence; [or] (3)
the need to correct clear error or prevent manifest injustice.” Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).
“A motion for
reconsideration should raise new issues, not merely readdress issues litigated
previously,” Paine Webber Income Props. Three Ltd. P’ship v. Mobil Oil Corp., 902 F.
Supp. 1514, 1521 (M.D. Fla. 1995), and must “set forth facts or law of a strongly
convincing nature to demonstrate to the court the reason to reverse its prior decision.”
Carter, 2006 WL 2620302, at *1 (citing Taylor Woodrow Constr. Corp. v.
Sarasota/Manatee Auth., 814 F. Supp. 1072, 1072-73 (M.D. Fla. 1993)). It is the
movant’s burden to establish the “extraordinary circumstances” justifying
reconsideration. Mannings v. Sch. Bd. of Hillsborough Cty., Fla., 149 F.R.D. 235,
235 (M.D. Fla. 1993).
“Unless the movant’s arguments fall into the limited
categories outlined above, a motion to reconsider must be denied.” Carter, 2006 WL
2620302, at *1.
Here, Defendant does not present any of the three grounds for reconsideration.
Sussman, 153 F.R.D. at 694. Defendant seeks the Court’s reconsideration of its
Order (Doc. 26) extending the deadline to file a motion for class certification to
November 28, 2016.
Doc. 30 at 21-24.
Defendant’s first argument for
reconsideration assumes that the Court will grant its motion to phase discovery. Id.
at 21-22. The argument is now moot because the Court denies Defendant’s motion
to phase discovery (Doc. 30). Second, according to Defendant, the current timeline
unreasonably assumes that the parties can “conduct all necessary discovery
regarding Plaintiff’s individual claim and class certification discovery in less than 90
days.” Id. at 22. Again, as noted above and Plaintiff points out, the discovery issues
relating to Plaintiff’s individual claim and class certification overlap. Furthermore,
the Court noted that Plaintiff’s allegations are not in complex in nature and does not
require a prolonged time period of consideration.
alleges that the deadline of November 28, 2016 allows Defendant to file an opposition
by December 15, 2016, which forces Defendant to prepare an opposition brief during
the holiday season.
Doc. 30 at 23.
Defendant states that “obtaining evidence,
declarations, and necessary input during this time of the year is largely unfeasible.”
Id. If such situation in fact occurs, Defendant may move for an extension of its own
deadline to file a response to Plaintiff’s motion, and the Court will entertain the
motion for extension. As shown above, Defendant’s arguments do not present “(1)
an intervening change in the controlling law; (2) the availability of new evidence; [or]
(3) the need to correct clear error or prevent manifest injustice.”
F.R.D. at 694.
ACCORDINGLY, it is hereby
Defendant’s Motion to Phase Discovery and to Reconsider the Deadline to File
a Motion for Class Certification (Doc. 30) is DENIED.
DONE and ORDERED in Fort Myers, Florida on this 12th day of October,
Counsel of record
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