Cin-Q Automobiles, Inc. v. Buccaneers Limited Partnership et al

Filing 181

ORDER. Defendant's motion 169 is DENIED. This action shall proceed directly to discovery in aid of Plaintiff's anticipated motion for class certification under Rule 23. A status conference shall be set by separate notice, where the Co urt will address the parties' Amended Supplemental Case Management Report 166 , as well as Defendant's Motion to Consolidate Related Lawsuits 178 . Plaintiff's motion 170 is DENIED in its entirety. Signed by Magistrate Judge Anthony E. Porcelli on 5/5/2015. (FDM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CIN-Q AUTOMOBILES, INC., a
Florida corporation, individually and as
the representative of a class of similarlysituated persons,
Plaintiff,
v.

CASE NO.: 8:13-cv-1592-T-AEP

BUCCANEERS LIMITED PARTNERSHIP
and JOHN DOES 1-10,
Defendants.
______________________________________/
ORDER
This cause comes before the Court on Defendant’s Motion to Bifurcate and Proceed
Directly to Trial on Liability (Doc. 169), and Plaintiff’s response thereto (Doc. 172), as well as
Plaintiff’s Motion for Reconsideration of Order Denying Plaintiff’s Motion for Summary
Judgment or, in the Alternative, to Certify Questions for Interlocutory Review Under 28 U.S.C. §
1292(b) (Doc. 170), and Defendant’s response thereto (Doc. 173). On April 24, 2015, a hearing
was held before the undersigned on these matters, and the motions were taken under advisement.
(Doc. 176). For the reasons that follow, Defendant’s motion to bifurcate and proceed directly to
trial on liability is denied, Plaintiff’s motion for reconsideration is denied, and Plaintiff’s
alternative motion to certify questions for interlocutory review is also denied.
I.

Motion to Bifurcate and Proceed Directly to Trial on Liability

Defendant moves for what is, in essence, a continuation of the bifurcated procedure adopted
by this Court at the onset of this action. Defendant argues that an immediate trial on liability may

obviate the need for eight to twelve additional months of proceedings and expenses related to class
certification.
Federal Rule of Civil Procedure 42(b) “confers broad discretion on the district court in this
area, permitting bifurcation merely in furtherance of convenience.” Harrington v. Cleburne Cnty.
Bd. of Educ., 251 F.3d 935, 938 (11th Cir. 2001) (citing Fed. R. Civ. P. 42) (internal quotations
omitted). The Court’s discretion, while broad, is, however, not unlimited in scope. As Plaintiff
contends, Rule 23(c) contemplates that class certification be decided “at an early practicable time.”
See also FED. R. CIV. P. 23, advisory committee notes (“Although an evaluation of the probable
outcome on the merits is not properly part of the certification decision, discovery in aid of the
certification decision often includes information required to identify the nature of the issues that
actually will be presented at trial.”) (emphasis added). The Local Rules of this tribunal are to the
same effect.
Moreover, and more importantly, the United States Supreme Court’s holding in Amgen Inc. v.
Connecticut Ret. Plans & Trust Funds (“Amgen”) makes clear that “Rule 23 grants courts no
license to engage in free-ranging merits inquiries at the certification stage.” See 133 S. Ct. 1184,
1194-95 (2013). As the Court noted, “the office of a Rule 23(b)(3) certification ruling is not to
adjudicate the case; rather, it is to select the ‘metho[d]’ best suited to adjudication of the
controversy ‘fairly and efficiently.’ ” See id. at 1191. Defendant here moves for what amounts to
the functional equivalent of the request in Amgen—proof of an essential predicate to recovery on
the merits prior to class certification. The Amgen decision, however, warned against preliminary
adjudications, as they “would entail considerable expenditures of judicial time and resources, costs
scarcely anticipated by Federal Rule of Civil Procedure 23(c)(1)(A), which instructs that the
decision whether to certify a class action be made ‘[a]t an early practicable time.’ ” Id. at 1201.

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Here, to proceed to a trial on liability prior to class certification would, procedurally, “put the cart
before the horse.” See id. at 1191. Additionally, while time and expenses are an important
consideration in this and all litigation, see FED. R. CIV. P. 1, as explained more fully below,
continuing the bifurcated procedure risks an unnecessary trial and multiple intervening appeals
that pose an even greater threat to the speedy and inexpensive disposition of this case.
II.

Reconsideration

Plaintiff first moves for reconsideration of the Court’s order denying summary judgment.
(Doc. 167).
“Reconsideration is ‘an extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.’ ” Kearney v. Auto-Owners Ins. Co., No.
8:06-cv-00595-T-24-TGW, 2010 WL 3062420, at *3 (M.D. Fla. Aug. 4, 2010) (quoting Int’l
Union of Painters v. Argyros, No. 5-cv-1661, 2007 WL 1577840, at *1 (M.D. Fla. May 31, 2007)).
A Rule 59 motion “does not provide an opportunity to simply reargue an issue the Court has once
determined. Court opinions ‘are not intended as mere first drafts, subject to revision and
reconsideration at a litigant’s pleasure.’ ” Am. Ass’n of People With Disabilities v. Hood, 278 F.
Supp. 2d 1337, 1340 (M.D. Fla. 2003) (quoting Quaker Alloy Casting Co. v. Gulfco Indus., Inc.,
123 F.R.D. 282, 288 (N.D. Ill. 1988)). Moreover, in determining whether reconsideration is
warranted, only three circumstances will justify reconsideration: (1) a change in the controlling
law; (2) the availability of new evidence; or (3) the need to correct clear error or manifest injustice.
See Wi-Lan, Inc. v. HTC Corp., 951 F. Supp. 2d 1291, 1291 (M.D. Fla. 2013); Argyros, 2007 WL
1577840, at *1.
Upon review of Plaintiff’s Motion, none of the grounds for reconsideration of the Court’s
Order (Doc. 167) have been met. Following the subject Order, the Eleventh Circuit sua sponte

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issued a new opinion in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A, No.
13-14013 (“Sarris”), leaving unchanged what this Court has interpreted to be a “totality of
circumstances” test. (See Doc. 177). Additionally, the Eleventh Circuit has denied Plaintiff’s
motion to clarify its opinion in Sarris. (See Doc. 177-1).
Plaintiff raises a litany of other arguments, the vast majority of which were briefed and
fully considered by the undersigned—including collateral FCC rulings addressing other areas of
the telemarketing arena. Plaintiff also attempts to buttress its position by submitting that a “butfor causation” element solves one of the Court’s interpretive concerns relating to “sabotage
liability.” The Court does not agree that Plaintiff’s proposal necessarily solves the analytical
dilemma, and, in any event, declines to read new elements into the regulation and its related cause
of action—particularly in view of this Court’s jurisdictional restrains under the Hobbs Act. The
Court further declines to respond in-kind to the remaining contentions in Plaintiff’s motion.1
Ultimately, however, no change in law or need to correct clear error or manifest injustice exist.
Plaintiff’s motion for reconsideration is, accordingly, denied.
III.

Interlocutory Review

In the alternative to its motion for reconsideration, Plaintiff requests that the Court certify the
following questions for interlocutory review under 28 U.S.C. 1292(b):
(1) Whether an unsolicited facsimile advertisement is sent “on behalf of” a
defendant as a matter of law under Palm Beach Golf Ctr.-Boca, Inc. v. Sarris,
771 F.3d 1274 (11th Cir. 2014), where the defendant creates the advertisement,
hires a fax broadcaster, specifies the area codes, dates, and times for
transmission, pays for the transmissions, tracks the sales generated by the faxes,
makes interim modifications to the content, and exercises authority to halt and
restart the transmissions.
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While Plaintiff argues the Court exceeded its scope of authority in one part of its
interpretive analysis, Plaintiff’s motion for reconsideration does not raise a fundamental
jurisdictional issue, as implied by Plaintiff’s reference to Fla. Ass’n of Rehab. Facilities, Inc. v.
Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208, 1218 (11th Cir. 2000).

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(2) Whether a district court lacks jurisdiction under the Hobbs Act to hold an FCC
regulation defining the “sender” of an unsolicited fax advertisement applies
only to the person “on whose behalf” the fax is sent, giving no effect to the part
of the definition including the person “whose goods or services are advertised”
on the basis that it “leads to absurd results which cannot possibly follow from
a permissible construction of the TCPA or from an agency’s reasonable
interpretation of its regulations.”
(3) Whether the part of the regulation defining the “sender” as the person “whose
goods or services are advertised” in the fax should be applied literally, or
whether it entails the default requirement of “but-for” causation for torts created
by statute under Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525
(2013).
A district court, after issuing “an order not otherwise appealable,” may allow for immediate
appeal provided the order “involves a controlling question of law as to which there is substantial
ground for difference of opinion” and that such an appeal “may materially advance the ultimate
termination of the litigation.” 28 U.S.C.A. § 1292(b). A “controlling question of law” in this
context is an abstract legal issue, or, “pure” legal question, rather than a question engendering “the
application of settled law to fact,” or one requiring the court of appeals to “delve beyond the surface
of the record.” 2 McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258-59 (11th Cir. 2004). The
“substantial ground for difference of opinion” requirement is not met when the appellate court is
in “complete and unequivocal” agreement with the district court. Burrell v. Bd. of Trustees of Ga.
Military Coll., 970 F.2d 785, 789 (11th Cir. 1992). Finally, whether resolution “may materially
advance the ultimate termination of the litigation. . .means that resolution of a controlling legal
question would serve to avoid a trial or otherwise substantially shorten the litigation.” McFarlin,
381 F.3d at 1259 (internal citation omitted). If review is granted, the appellate court may address

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“The legal question must be stated at a high enough level of abstraction to lift the
question out of the details of the evidence or facts of a particular case and give it general
relevance to other cases in the same area of law. And the answer to that question must
substantially reduce the amount of litigation left in the case.” McFarlin, 381 F.3d at 1259.

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any issue fairly included within the certified order. Yamaha Motor Corp., U.S.A. v. Calhoun, 516
U.S. 199, 205 (1996).
There is no doubt that the interpretive issue at hand involves a controlling question of law
to which there is substantial ground for difference of opinion. 3 In light of the procedural posture
of this case, however, an interlocutory appeal under 28 U.S.C.A. § 1292(b) would not materially
advance the ultimate termination of this litigation. As discussed above, this case will not proceed
directly to trial on liability, but, rather, will proceed directly to class discovery and Plaintiff’s
anticipated motion for class certification. Upon disposition of that motion, the parties will be able
to petition for interlocutory review under Federal Rule of Civil Procedure 23(f). If, as Plaintiff
contends, this Court has abused its discretion by applying an incorrect legal standard, such error
will be reviewable if the Eleventh Circuit grants the anticipated Rule 23(f) petition. See, e.g., Vega
v. T-Mobile USA, Inc., 564 F.3d 1256, 1264 (11th Cir. 2009); Klay v. Humana, Inc., 382 F.3d
1241, 1251 (11th Cir. 2004); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir.
2004). Therefore, granting interlocutory appeal at this juncture does not avoid a trial, nor does it
substantially shorten the life of the action. See McFarlin, 381 F.3d at 1259. Instead, granting an
appeal at this juncture risks the undesirable outcome of piecemeal appeals that may further delay
and increase the expense of this litigation. See id. at 1246-47, 1259 (“Because permitting
piecemeal appeals is bad policy, permitting liberal use of § 1292(b) interlocutory appeals is bad
policy.”).
Accordingly, it is hereby

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Interpretation of the regulation at issue, which is perhaps the predominant controlling
legal issue in this case, is a matter of pure law—completely free from entanglement with the
factual record. And, as is evident from the Court’s Order denying summary judgment, as well as
from the extensive briefing and hearings on this matter, a substantial ground for difference of
opinion exists.

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ORDERED:
1. Defendant’s motion (Doc. 169) is DENIED. This action shall proceed directly to discovery
in aid of Plaintiff’s anticipated motion for class certification under Rule 23. A status
conference shall be set by separate notice, where the Court will address the parties’
Amended Supplemental Case Management Report (Doc. 166), as well as Defendant’s
Motion to Consolidate Related Lawsuits (Doc. 178).
2. Plaintiff’s motion (Doc. 170) is DENIED in its entirety.

DONE AND ORDERED at Tampa, Florida this 5th day of May, 2015.

Copies furnished to:
Counsel of Record

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