Scoma Chiropractic, P.A. v. Jackson Hewitt Inc. et al

Filing 60

ORDER granting 32 Unopposed Motion for Relief from Local Rule 4.04(b); granting 37 Defendants Jackson Hewitt Inc. and Jackson Hewitt Technology Services LLC's Motion for Rule 16(a) Pretrial Conference; granting in part and denying withou t prejudice in part 42 Defendant Jackson Hewitt Inc. and Jackson Hewitt Technology Services LLC's Amended Motion to Stay and Bifurcate Discovery and Incorporated Memorandum of Law. All discovery is STAYED pending a determination of the Jackson Hewitt Defendants' Motion to Dismiss Amended Class Action Complaint and Incorporated Memorandum of Law (Doc. 36). Signed by Magistrate Judge Carol Mirando on 6/26/2017. (LS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SCOMA CHIROPRACTIC, P.A., a
Florida corporation, individually and
as the representative of a class of
similarly-situated persons
Plaintiff,
v.

Case No: 2:17-cv-24-FtM-38CM

JACKSON HEWITT INC.,
JACKSON HEWITT
TECHNOLOGY SERVICES LLC,
ASTRO TAX SERVICES LLC,
JOHN DOES 1-5 and NAVEEN
MATHUR,
Defendants.
ORDER
This matter comes before the Court upon review of: (1) the Unopposed Motion
for Relief from Local Rule 4.04(b) (Doc. 32) filed on March 8, 2017; (2) Defendants
Jackson Hewitt Inc. and Jackson Hewitt Technology Services LLC’s Motion for Rule
16(a) Pretrial Conference (Doc. 37) filed on March 20, 2017; (3) and Defendant
Jackson Hewitt Inc. and Jackson Hewitt Technology Services LLC’s Amended Motion
to Stay and Bifurcate Discovery and Incorporated Memorandum of Law (Doc. 42) filed
on April 5, 2017.
Plaintiff filed a class action complaint against Jackson Hewitt Inc., Jackson
Hewitt Technology Services LLC, Astro Tax Services LLC, John Does 1-5, and
Naveen Mathur pursuant to the Telephone Consumer Protection Act (“TCPA”) and

the Junk Fax Prevention Act (“JFPA”). Doc. 22 ¶ 2. Plaintiff’s operative complaint,
filed on February 10, 2017, alleges that he received an unsolicited facsimile from
Defendants on or about December 23, 2016. Id. ¶ 14. Plaintiff also alleges that the
facsimile did not display a proper opt-out notice as required by 47 C.F.R. § 64.1200.

Id. ¶ 19. Moreover, Plaintiff alleges that “[o]n information and belief, Defendants
faxed the same and other unsolicited facsimiles without the required opt-out
language to Plaintiff and at least 40 other recipients or sent the same and other
advertisements by fax with the required opt-out language but without first receiving
the recipients’ express invitation or permission . . .” Id. ¶ 17.
On March 20, 2017, Defendants Jackson Hewitt Inc. and Jackson Hewitt
Technology Services LLC (collectively, the “Jackson Hewitt Defendants”) filed a
motion to dismiss Plaintiff’s amended complaint pursuant to Rule 12(b)(6), Federal
Rules of Civil Procedure. Doc. 36. In their motion to dismiss, the Jackson Hewitt
Defendants argue, among other things, that Plaintiff’s amended complaint fails to
allege facts related to each of the Defendants that would establish the individual
liability of each or how one might be liable for a violation of the TCPA by another.
Doc. 36 at 4-7. For instance, the amended complaint does not distinguish which of
the Defendants sent the single facsimile but instead alleges all Defendants sent it.

Id. Thus, the Jackson Hewitt Defendants argue that Plaintiff fails to allege that the
Jackson Hewitt Defendants were the “sender” of the alleged facsimile or that the
facsimile was sent on Jackson Hewitt’s behalf.

Id. at 10-15.

Additionally, the

Jackson Hewitt Defendants argue that Plaintiff fails to provide any factual

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allegations to support its allegations that this case is appropriate for class treatment;
instead, it merely recites the statute. Id. at 7-9.
The Jackson Hewitt Defendants request an order staying discovery pending a
resolution of their motion to dismiss, and if Plaintiff’s complaint survives the motion,
bifurcating discovery into two phases: merits and class discovery. Doc. 42 at 1. In
phase one, they propose that the parties have 90 days to conduct the limited discovery
relevant to testing Plaintiff’s claims—likely focusing on Jackson Hewitt’s relationship
to the facsimile—after which the Jackson Hewitt Defendants would move for
summary judgment.

Doc. 42 at 3.

Then, if Plaintiff’s claims survive summary

judgment, the Jackson Hewitt Defendants propose that the case move to phase two,
where the parties conduct all other discovery, including class discovery. Id.
In addition to arguing the sufficiency of its amended complaint, Plaintiff
argues that bifurcation would unduly prejudice Plaintiff by prohibiting it from
obtaining discovery on the allegation that the Jackson Hewitt Defendants sent more
unsolicited faxes to it than just the facsimile attached to its amended complaint.
Doc. 50 at 13.

Plaintiff also argues that bifurcation would increase litigation

expenses by protracting the discovery period and by duplicating the discovery
process, including depositions.

Id.

Moreover, Plaintiff asserts that bifurcation

would needlessly extend the time in which Plaintiff could pursue class certification,
which should be decided at the earliest practicable time. Id. (citing Fed. R. Civ. P.
23 (c)).

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District courts have broad discretion when managing their cases in order to
ensure that the cases move to a timely and orderly conclusion. Chrysler Int’l Corp.

v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002). The Eleventh Circuit has noted
that “[f]acial challenges to the legal sufficiency of a claim or defense, such as a motion
to dismiss based on failure to state a claim for relief, should . . . be resolved before
discovery begins.

Chudasama v. Mazda Motor Corp., 123 F. 3d 1353 (11th Cir.

1983). Such a dispute always presents a purely legal question; there are no issues
of fact because the allegations contained in the pleading are presumed to be true.”

Id. at 1367 (footnote omitted). “Therefore, neither the parties nor the court have any
need for discovery before the court rules on the motion.” Id.; Horsley v. Feldt, 304 F.
3d 1125, 1131 n.2 (11th Cir. 2002). Chudasama, however, does not stand for the
proposition that all discovery in every circumstance should be stayed pending a
decision on a motion to dismiss.

Koock v. Sugar & Felsenthal, LLP, 2009 WL

2579307, at *2 (M.D. Fla. Aug. 19, 2009). “Instead, Chudasama and its progeny
‘stand for the much narrower proposition that courts should not delay ruling on a
likely meritorious motion to dismiss while undue discovery costs mount.” Id. (citing

In re Winn Dixie Stores, Inc., 2007 WL 1877887, at *1 (M.D. Fla. June 28, 2007)).
In deciding whether to stay discovery pending resolution of a motion to dismiss,
the court must balance the harm produced by a delay in discovery against the
possibility that the motion will be granted and entirely eliminate the need for such
discovery. McCabe v. Foley, 233 F.R.D. 683, 685 (M.D. Fla. 2006) (citation omitted).
To this end, the court must take a “preliminary peek” at the merits of the dispositive

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motion to see if it “appears to be clearly meritorious and truly case dispositive.” Id.
(citation and internal quotation marks omitted).
Because there is a pending motion by the Jackson Hewitt Defendants
challenging the legal sufficiency of Plaintiff’s amended complaint, 1 which after
taking a “preliminary peek” the Court finds meritorious, the Court will stay discovery
pending a ruling on the motion to dismiss. To be clear, the Court is not making a
determination at this time on the merits of the Jackson Hewitt Defendants’
dispositive arguments. But, under the circumstances of this case, delaying discovery
until the Court rules on whether Plaintiff has stated a viable cause of action will
cause Plaintiff little harm.
Within a district court’s discretion in managing its cases in order to ensure
that the cases move to a timely and orderly conclusion falls the discretion to bifurcate
discovery. See Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002);

Degutis v. Fin. Freedom, LLC, No. 2:12-cv-319-FTM-38, 2013 WL 10207621, at *1
(M.D. Fla. Oct. 18, 2013) (citation omitted); Physicians Healthsource, Inc. v. Anda,

Inc., No. 12-60798-CIV, 2012 WL 7856269, at *1 (S.D. Fla. Nov. 27, 2012) (citing
Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1269 (11th Cir.2001).
There are several factors that the Court may consider. See Fed. Deposit Ins. Corp.

v. Stewart Title Guar. Co., No. 8:12-CV-2244-T-17TBM, 2013 WL 12155010, at *2
(M.D. Fla. June 25, 2013) (holding that prevention of undue burden and

Defendants Astro Tax Services LLC and Naveen Mathur also have filed a motion to dismiss.
Doc. 45.
1

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expense, convenience, the need to avoid prejudice, or to expedite and economize are
appropriate factors for consideration in a motion to bifurcate discovery). The Court,
however, declines to make a bifurcation determination at this time pending a ruling
on the Jackson Hewitt Defendants’ motion to dismiss the amended complaint.
Accordingly, the Court exercises its discretion in staying discovery pending a ruling
on the Jackson Hewitt Defendants’ motion to dismiss the amended complaint, and
will deny without prejudice the motion to bifurcate discovery until the Court rules on
the motion to dismiss. For the same reasons, the Court grants Jackson Hewitt’s
Motion for Rule 16(a) Pretrial Conference, and will schedule same upon the Court’s
ruling on the pending motion to dismiss. Plaintiff’s Unopposed Motion for Relief
from Local Rule 4.04(b) also is due to be granted. The Court will address the new
filing deadline for a motion for class certification at the scheduling conference.
ACCORDINGLY, it is hereby
ORDERED:
1.

Unopposed Motion for Relief from Local Rule 4.04(b) (Doc. 32) is

GRANTED.
2.

Defendants Jackson Hewitt Inc. and Jackson Hewitt Technology

Services LLC’s Motion for Rule 16(a) Pretrial Conference (Doc. 37) is GRANTED.
The Court will separately notice a preliminary pretrial conference.
3.

Defendant Jackson Hewitt Inc. and Jackson Hewitt Technology Services

LLC’s Amended Motion to Stay and Bifurcate Discovery and Incorporated
Memorandum of Law (Doc. 42) is GRANTED in part in that all discovery is STAYED

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pending a determination of the Jackson Hewitt Defendants’ Motion to Dismiss
Amended Class Action Complaint and Incorporated Memorandum of Law (Doc. 36),
and the motion to bifurcate is DENIED without prejudice.
DONE and ORDERED in Fort Myers, Florida on this 26th day of June, 2017.

Copies:
Counsel of record

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