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

Filing 92

ORDER granting in part and denying without prejudice in part 76 Defendant Jackson Hewitt Inc.'s Second Motion to Stay and Bifurcate Discovery and Incorporated Memorandum of Law. All discovery is stayed pending a determination of Jackson Hewitt's Motion to Dismiss Second Amended Class Action Complaint (Doc. 75 ). The motion to bifurcate is denied without prejudice pending the same. Signed by Magistrate Judge Carol Mirando on 11/13/2017. (KBR)

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 Defendant Jackson Hewitt
Inc.’s Second Motion to Stay and Bifurcate Discovery and Incorporated Memorandum
of Law (Doc. 76) filed on August 28, 2017.
In reviewing this Motion, the Court finds itself back at the place where it
began. Plaintiff initially filed a class action complaint against Jackson Hewitt Inc.
(“Jackson Hewitt”), Jackson Hewitt Technology Services LLC (“JH Tech”), Astro Tax
Services LLC (“Astro Tax”), John Does 1-5, and Naveen Mathur (“Mathur”)
(collectively, “Defendants”) pursuant to the Telephone Consumer Protection Act
(“TCPA”) and the Junk Fax Prevention Act (“JFPA”) on January 13, 2017. Doc. 1.
Plaintiff amended its Complaint on February 10, 2017. Doc. 22. The Complaint

alleged that Plaintiff received an unsolicited facsimile from Defendants on or about
December 23, 2016. Id. ¶ 14. Plaintiff also alleged that the facsimile did not display
a proper opt-out notice as required by 47 C.F.R. § 64.1200, and that at least 40 other
recipients were sent the same advertisement. Id. ¶¶ 17, 19.
Jackson Hewitt and JH Tech responded to Plaintiff’s Amended Complaint by
filing a Motion to Dismiss on March 20, 2017. Doc. 36. This was followed closely
by a Motion to Stay and Bifurcate Discovery filed on March 29, 2017 (Doc. 40) and
amended on April 5, 2017 (Doc. 42). On April 13, 2017 Astro Tax and Mathur also
filed a Motion to Dismiss. Doc. 45. On June 26, 2017 the Court granted in part
Jackson Hewitt and JH Tech’s Motion to Stay and Bifurcate Discovery, staying
discovery pending a determination on the pending motions to dismiss and denying
without prejudice the Motion to Bifurcate pending the same.

Doc. 60 at 6-7.

Subsequently, the Honorable Sheri Polster Chappell granted the pending motions to
dismiss and dismissed Plaintiff’s First Amended Complaint without prejudice. Doc.
63.
On August 14, 2017 Plaintiff filed its Second Amended Complaint. Doc. 69.
Jackson Hewitt, Astro Tax and Mathur again responded by filing motions to dismiss.
Docs. 75, 77. Jackson Hewitt also filed the instant motion. Doc. 76. In its second
Motion to Dismiss, Jackson Hewitt argues, as it did previously, that Plaintiff’s Second
Amended Complaint “improperly lumps the three defendants together without
specifying the acts or omissions each allegedly committed or how one might be liable
for a violation of the TCPA by another.” Id. at 6-9. Jackson Hewitt also argues that

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once again Plaintiff fails to allege that Jackson Hewitt was the “sender” of the alleged
facsimile or that the facsimile was sent on Jackson Hewitt’s behalf.

Id. at 9-16.

Finally, Jackson Hewitt argues that Plaintiff fails to provide any factual allegations
to support its claims that this case is appropriate for class treatment. Id. at 20-23.
Based on the above, Jackson Hewitt filed its Second Motion to Stay and
Bifurcate Discovery, where it again requests an order staying discovery pending
resolution of its Motion to Dismiss. Doc. 76 at 3. If Plaintiff’s complaint survives,
Defendant requests that the Court bifurcate discovery into two phases. Doc. 76 at
4. In phase one, Jackson Hewitt proposes 90 days for limited discovery relevant to
testing Plaintiff’s claims.

Id.

Then, if Plaintiff’s claims survive summary

judgment, Jackson Hewitt proposes that the case move to phase two, where the
parties conduct all other discovery, including class discovery. Id.
Plaintiff’s Response to Defendants’ Second Motion to Stay and Bifurcate
similarly mirrors its response to Defendants’ first motion for the same. Once again,
Plaintiff defends its (Second) Amended Complaint, while arguing that Defendants’
requested relief would cause undue prejudice and unwarranted delay.

See

generally, Doc. 80. Thus, the Court finds itself faced with substantially the same
issues it was presented with when considering Jackson Hewitt and JH Tech’s prior
Motion to Stay and Bifurcate Discovery.

Compare Docs. 36, 42, 50 with Docs. 75,

76, 80.
As the Court noted in its previous Order (Doc. 60), District courts have broad
discretion when managing their cases in order to ensure that the cases move to a

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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
motion to see if it “appears to be clearly meritorious and truly case dispositive.” Id.

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(citation and internal quotation marks omitted).
Because there is a pending motion by Jackson Hewitt challenging the legal
sufficiency of Plaintiff’s amended complaint, 1 which after taking a “preliminary
peek” the Court finds meritorious, the Court will again stay discovery pending a
ruling on the motion to dismiss. As the Court noted in its previous Order (Doc. 60),
the Court is not making a determination at this time on the merits of the Jackson
Hewitt Defendants’ dispositive arguments; however, based on its review of the
relevant pleadings and motions, the Court finds that delaying discovery until the
Court rules on whether Plaintiff has stated a viable cause of action will cause Plaintiff
little harm and promote judicial efficiency. For the reasons discussed in its previous
Order (Doc. 60), the Court will again decline to make a bifurcation determination
pending a ruling on Jackson Hewitt’s Motion to Dismiss the Second Amended
Complaint.
ACCORDINGLY, it is hereby
ORDERED:
Defendant Jackson Hewitt Inc.’s Second Motion to Stay and Bifurcate
Discovery and Incorporated Memorandum of Law (Doc. 76) is GRANTED in part in
that all discovery is STAYED pending a determination of the Jackson Hewitt’s
Motion to Dismiss Second Amended Class Action Complaint and Incorporated

Defendants Astro Tax Services LLC and Naveen Mathur also have filed a motion to dismiss.
Doc. 77.
1

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Memorandum of Law (Doc. 75), and the motion to bifurcate is DENIED without
prejudice.
DONE and ORDERED in Fort Myers, Florida on this 13th day of November,
2017.

Copies:
Counsel of record

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