Usry v., LLC

Filing 159

ORDER denying without prejudice Defendants' 154 Motion to Stay; adopting Plaintiffs' class notice and granting Plaintiffs' 124 Motion to include questionnaire. The Court will allow Defendants, within seven days, to submit a question to Plaintiffs that shall be included in the questionnaire. The Clerk of Court is authorized to affix its approval on the last page of the notice. Signed by Chief Judge J. Randal Hall on 12/21/2020. (jlh) Modified on 12/21/2020 (jlh).

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Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION SARAH USRY and DANIEL DARNELL, on behalf of themselves and * * u.s W im DEC 2 I P !2: 11 ●k all others similarly situated, ^ * * * Plaintiffs, r-' .I \ t_L_ 1 . . J. wl' UM. 'k CV 116-010 'k V . k 'k EQUITYEXPERTS.ORG, LLC d/b/a EQUITY EXPERTS; MICHAEL NOVAK; JACQUELINE GALOFARO; and MARK BREDOW, 'k 'k k k k Defendants. k k ORDER Presently before the Court is Plaintiffs' motion for approval of class notice and questionnaire (Doc. to stay (Doc. 154) . 124) and Defendants' motion For the following reasons. Defendants' motion is DENIED WITHOUT PREJUDICE, and the Court ADOPTS Plaintiffs' class notice and GRANTS Plaintiffs' request to include questionnaire. I. BACKGROUND On March 5, 2020, class certification. a motion (Doc. this Court granted Plaintiffs' (Doc. 121. ) for reconsideration 152) . On November 25, (Doc. 2020, Subsequently, 122) , motion for Defendants filed which this Court Defendants denied filed the present Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 2 of 8 motion to stay pending the Eleventh Circuit's ruling on Defendants' timely petition for permission to appeal under Civil Procedure 23(f). Federal Rule of (See Docs. 154, 155.) II. DISCUSSION A. Motion to Stay Federal Rule of Civil Procedure 23(f) allows a party to seek an interlocutory denying appeal class-action of a district court See certification. order granting Fed. R. Civ. P. or 23(f). However, an appeal does not automatically stay the proceeding in the district court. the proceeding orders it. Id. Rather, an appeal under Rule 23(f) stays only if the district judge or court of appeals Id. Generally, interlocutory appeals are disfavored. Prado- Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1276 (11th Cir. 2000) (reiterating disruptive, appellate that \\ interlocutory time-consuming, review has a and appeals expensive deleterious // are and effect inherently [p]iecemeal on j udicial administration n (internal citations and quotations omitted)). those reasons, the Eleventh Circuit For use[s] restraint in accepting Rule 23(f) petitions, and . . . interlocutory petitions will not be accepted as a matter of course. // Id. at 1277. Because this type of appeal is rarely granted by appellate courts, . . . a stay of district-court proceedings pending 2 [an appellate court's] Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 3 of 8 is also ruling on permission to pursue an interlocutory appeal disfavored. Bacon v. Stiefel Lab'ys, Inc., 837 F. Supp. 2d 1280, 1282 (S.D. Fla. 2011) (citations omitted). Taking that into consideration, the Court will address the When resolving a motion to merits of Defendants' motion to stay. stay pending the appeal of a class certification decision. courts in this circuit generally apply a four-factor balancing test. See Calderone v. Scott, No. 2:14-cv-519, 2016 WL 2586658, at *2 n.2 (M.D. Fla. May 5, 2016) ("Although the Eleventh Circuit has not articulated the pending appeal proper standard for of a Rule 23(f) resolving certification a motion to stay decision, it has applied a similar four-factor test to determine whether a stay is appropriate in other contexts. rr (citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986))); Rosen v. J.M. Auto Inc., No. 07-61234-CIV, 2009 WL 7113827, at *1 (S.D. Fla. May 20, 2009) ("Many district courts have applied a test similar to the fourfactor balancing injunction. // test employed (citations omitted)) . on motions for preliminary The burden is on the Defendants to show: \\ (1) a likelihood that they will prevail on the merits of the appeal; (2) irreparable injury unless the stay is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest. n De Leon-Granados v. Eller & Sons Trees, Inc., No. 1:05-CV-1473, 2006 WL 8432449, at *1 (N.D. Ga. Nov. 17, 2006) (citations omitted). 3 Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 4 of 8 Defendants \\ a stay overlapping factual issues of resources \\ argue !/ ff is necessary because there are \\ tremendous waste that would create a if the Court lets this case proceed, and a stay would n have no effect on the general public. (Doc. 154, at 4-5.) While the Court agrees that a stay may conserve resources of both the parties and the Court if the Eleventh Circuit grants Defendants' petition, Defendants have alleged no irreparable harm that they will suffer absent a stay, nor have they alleged any harm to other persons or the public. *2 (finding resources Defendants unconvincing See De Leon-Granados, 2006 WL 8432449, at argument even regarding where the the Eleventh conservation Circuit of granted their petition); see also Reyes v. BCA Fin. Servs. , Inc., No. 1624077-CIV, 2018 WL 6444920, at *1 (S.D. Fla. Dec. 10, 2018) (finding the mere fact that proceeding will cause parties to incur \\ additional costs and expenses is irreparable harm"). hardly sufficient to establish Thus, the Court need not determine whether Defendants are likely to prevail on appeal. See Local 703, IB of T Grocery & Food Emps. Welfare Fund v. Regions Fin. Corp., No. 1214168-CC, 2012 WL 13024409, at *1 (11th Cir. Sept. 4, 2012). This warranted. premature. Court finds Moreover, Defendants the Court have finds not shown Defendants' a stay is motion is See A&M Gerber Chiropractic LLC v. GEICQ General Ins. Co., No. 16-CV-62610, 2017 WL 4868985, at *2 (S.D. Fla. June 16, 2017) ("[It is] premature to grant a stay of the proceedings when 4 Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 5 of 8 it is unknown if the circuit court will indeed afford Defendant [s] ft an (citations omitted)). opportunity for interlocutory review. Should the petition, Eleventh Defendants Circuit may grant renew Defendants' their forthcoming Accordingly, motion. Defendants' motion to stay is DENIED WITHOUT PREJUDICE. B. Motion for Approval of Class Notice & Questionnaire After Court denying permitted Defendants' Defendants motion for additional reconsideration, time to object do not make notice.^ Defendants any specific only specific objections objection to (Doc. 124.) Plaintiffs' proposed class notice and questionnaire. Defendants the to is the class that the questionnaire fails to include any inquiry designed to determine whether debt. ff the owed by the responding party is a 'consumer' (Doc. 153, at 1.) Federal class debt notice Rule to of Civil clearly Procedure and 23(c)(2)(B) concisely state in requires plain, the easily understood language" the following: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; 1 Defendants object to the proposed class notice "for the reasons set forth in their response to Plaintiffs' motion for class certification and motion for reconsideration of the Court's 1/ decision granting Plaintiff's motion for class certification. (Doc. 153, at 1.) Because Defendants' sole purpose for offering this general objection is to preserve the issue on appeal and the Court has already addressed Defendants' arguments in its prior Orders, the Court wili not address any such objections here. 5 Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 6 of 8 (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). Fed. R. Civ. P. 23(c) (2) (B). finds that it meets all The Court has reviewed the notice and the requirements set forth in Rule 23(c) (2) (B) . Now, the Generally, Court \\ absent // turns to the class-action attached plaintiffs, questionnaire. unlike class representatives, are not active participants in the class action. Cooper V. Pacific Life Ins. Co., No. CV203-131, 2005 WL 1866166, at *2 (S.D. Ga. Aug. 5, Consequently, 2005). class action defendants are not permitted to seek discovery from absent class members as a matter of course. discovery to an extent. n Id. However, courts do allow This District has recognized two closely- related tests . . . to judge the propriety of discovery requests. Id. In Cooper the court explained: In one formulation, courts require that the discovery (1) is not directed toward winnowing the size of the class, (2) is necessary, (3) would not require the assistance of a lawyer or other expert to answer, and (4) seeks information not known to movant. Clark v. Universal Builders, 501 F.2d 324 , 340-41 & n. 24 (7th that the Cir. 1974). Other courts have required discovery (1) be sought in good faith and not be overly burdensome, (2) be relevant to common questions, and (3) be unavailable from the representative parties. Dellums V. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977); see generally Alba Conte & Herbert B. Newberg, Newberg on Class Actions §§ 16.1-16.3 (4th ed. 2002). 6 u Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 7 of 8 Id. Unlike the defendants in Cooper, however, Plaintiffs moving to necessity. include n the Schwartz questionnaire v. Celestial [t]he party Regardless, moved for approval of the questionnaire. has the Seasonings, have burden of Inc., proving 185 F.R.D. 313, 316 (D. Colo. 1999). Here, the questionnaire. questions. Court finds no reason not to approve the It consists of eight, short and straight-forward The questions, which ask for contact and general background information, are relevant to the suit and not overly burdensome. Moreover, because Defendants are not the ones seeking discovery of the absent class members. the class questionnaires are not pertinent. w can assume the questionnaire is not size of the class n usual concerns over For example, the Court directed toward winnowing the since Plaintiffs created it. See Cooper, 2005 WL 1866166, at *2. Defendants did not object to any specific question included on the questionnaire, nor have they suggested additional questions they want to include. Instead, Defendants merely state that the questionnaire fails to include any inquiry designed to determine whether the debt owed by the debt. n (Doc. 153, at 1. ) responding party is a 'consumer' Without more, the Court has no reason to deny the inclusion of Plaintiffs' questionnaire. However, since Plaintiffs do not object to the addition of a question to confirm that Defendants' collection efforts were for 7 \\ consumer // debts, the Case 1:16-cv-00010-JRH-BKE Document 159 Filed 12/21/20 Page 8 of 8 Court will allow Defendants to included in the submit a question to Plaintiffs questionnaire. (See Doc . 156. ) that shall be Defendants have question. At that time, Plaintiffs may proceed with the class seven (7) days to provide Plaintiffs with such notice and questionnaire. III. CONCLUSION For the foregoing reasons, Defendants' motion to stay (Doc. 154) is DENIED WITHOUT PREJUDICE. The Court has reviewed the class notice and questionnaire and finds it to be adequate. The Court ADOPTS Plaintiffs' class notice and GRANTS Plaintiffs' request to include questionnaire. (Doc. 124 . ) The Clerk of Court is authorized to affix its approval on the last page of the notice. ORDER ENTERED at Augusta, Georgia, this 'day of December, 2020. DGE J. Rffl mL HAjZ, CHTE DISTRIC'r COURT SOU RN DISTRICT OF GEORGIA unite:/STATES

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