Hapka v. CareCentrix, Inc.
MEMORANDUM AND ORDER denying 60 Motion putative class discovery. Signed by Magistrate Judge Kenneth G. Gale on 8/7/17. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SARAH HAPKA, individually and on
behalf of all others similarly situated,
ORDER ON MOTION TO DESIGNATE
UNKNOWN NONPARTY FOR COMPARATIVE FAULT
Now before the Court is Defendant’s Motion to Permit Putative Class
Discovery (Doc. 60). For the reasons set forth below, Defendant’s motion is
This case involves a claim for common law negligence. More specifically,
Plaintiff alleges that Wage and Tax Statements belonging to her and other
employees of Defendant were stolen from Defendant by an unknown third party.
Plaintiff contends that Defendant “owed a duty to Plaintiff and the Class to
exercise reasonable care in obtaining, securing, safeguarding, deleting and
protecting Plaintiff and Class members’ personal and tax information within its
control from being compromised, lost, stolen, accessed and misused by
unauthorized persons.” (Doc. 1, at ¶ 60; Doc. 54, at 2.) A fraudulent tax return
was subsequently filed in Plaintiff’s name. She contends she continues to be at a
heightened risk for tax fraud and identity theft. (Doc. 1, at 10-11.) The District
Court previously denied Defendant’s Motion to Dismiss, finding that Plaintiff had
sufficiently plead duty, breach, and causation. (See Doc. 31; Doc. 10.)
Defendant brings the present motion requesting permission to send “a
simple, voluntary questionnaire” to putative class members. Defendant contends
the information sought is relevant, “necessary, cannot be discovered without
putative class member discovery, and can be discovered without imposing any
significant burden on the putative class members . . . .” (Doc. 61, at 1.) Plaintiff
objects that the questionnaire is misleading and will result in unfair prejudice.
(Doc. 62, at 3-6.) Plaintiff continues that the information sought is unnecessary to
class-wide issues. (Id., at 7.)
The Federal Rules of Civil Procedure “neither prohibited nor sanctioned
explicitly” putative class discovery. Schwartz v. Celestial Seasonings, Inc., 185.
F.R.D. 313, 316 (D. Colo. March 2, 1999) (citing Krueger v. New York Tel. Co.,
163 F.R.D. 446, 450 (S.D.N.Y.1995)). Utilizing this procedure is within the
discretion of the court, but it should not be used “when it only will confuse the
absentees, some class members can demonstrate that it will prejudice their rights, it
will be employed prematurely or administered in an inappropriate fashion, or it
will serve only to reduce the efficiencies of the class action.” Id. (citing 7B
Charles Alan Wright et al., Federal Practice and Procedure § 1787 at 218–19 (2d
The general rule is that discovery requests to absent class members are
“generally disfavored.” Sibley v. Sprint Nextel Corp., No. 08-2063-KHV, 2009
WL 3244696, at *2 (D. Kan. Oct. 6, 2009) (citing McPhail v. First Command Fin.
Planning, Inc., 251 F.R.D. 514, 517 (S.D. Cal.2008) and Barham v. Ramsey, 246
F.R.D. 60, 62 (D.D.C.2007)). That stated,
that rule is not absolute, and discovery of absent class
members may be allowed in certain circumstances. In
considering the propriety of such requests, courts look to
whether the information sought is necessary for trial
preparation and whether the discovery requests made to
class members are designed to be a tactic to take undue
advantage of or otherwise limit the number of class
Sibley v. Sprint Nextel Corp., No. 08-2063-KHV, 2009 WL 3244696, at *2 (D.
Kan. Oct. 6, 2009) (citations omitted). Because the procedure is generally
disfavored, “[t]he party moving to include the questionnaire has the burden of
proving necessity.” Schwartz, 185 F.R.D. at 316. When allowed at the pre-class
certification stage, “discovery in a putative class action is generally limited to
certification issues: e.g., the number of class members, the existence of common
questions, the typicality of claims, and the representative's ability to represent the
class.” Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., NO. 092757, 2011 WL 5865059, at *1 (D. Colo. Nov. 22, 2011) (citing Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 359 (1978).
Defendant contends that “[i]n order to test [Plaintiff’s] claim that her
experiences are substantially similar to those of a large class of people, we must
first know what that class of people experienced.” (Doc. 61, at 6.) Defendant also
argues that while Plaintiff “fears an increased risk of encountering some unknown
problem sometime in the future” as a result of the identity theft, “what we do not
know right know – and what we cannot know without class member discovery – is
whether anyone else in the class shares Hapka’s fear.” (Id., at 7.) Plaintiff
responds that such an “individualized damages inquiry is unnecessary and
irrelevant to a trial of class-wide issues,” particularly where Plaintiff intends “to
show class-wide injury through the use of expert testimony.” (Doc. 62, at 7.)
The Court agrees with Plaintiff. Defendant argues that it must be allowed to
conduct discovery into whether the injuries and damages suffered by putative class
members are similar to that suffered by the proposed class. Defendant essentially
contends this is necessary to evaluate the typicality element of the certification
issue – “to determine if Hapka is typical of the class she claims to represent.”
(Doc. 61, at 6.)
The typicality requirement is satisfied if there are common questions of law
or fact. Fed.R.Civ.P. 23(a). “Provided the claims of Named Plaintiffs and putative
class members are based on the same legal or remedial theory, differing fact
situations of the putative class members do not defeat typicality.” DG v.
Devaughn, 594 F.3d 1188, 1198-99 (10th Cir. 2010) (citing Adamson v. Bowen,
855 F.2d 668, 676 (10th Cir.1988)). “‘[L]ike commonality, typicality exists where
. . . all putative class members are at risk of being subjected to the same harmful
practices, regardless of any class member’s individual circumstances.”’ Anderson
Living Trust v. WPX Energy Production, LLC, 306 F.R.D. 312, 382 (D. N.M.
2015) (citing DG v. Devaughn, 594 F.3d at 1199). Differences in the amount of
damages will not defeat typicality. Id., at 382-83.
Defendant’s contention that it is “necessary” to be allowed discovery at this
stage in the proceedings regarding the damages – and potential “fears” – of all
putative class members is unfounded. The Court finds that Defendant has failed to
establish the necessity of receiving the requested information, particularly at this
stage of the proceedings. Defendant’s motion is, therefore, DENIED.
IT IS THEREFORE ORDERED that Defendant’s Motion to Permit
Putative Class Discovery (Doc. 60) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 7th day of August, 2017.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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