Usry v. Equityexperts.org, 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).

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

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all others similarly situated,

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Plaintiffs,

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CV 116-010

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EQUITYEXPERTS.ORG, LLC d/b/a
EQUITY EXPERTS; MICHAEL NOVAK;
JACQUELINE GALOFARO; and MARK
BREDOW,

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Defendants.

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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