Gaines v. PDL Recovery Group, LLC

Filing 17

ORDER Denying 16 Motion for District Judge to Reconsider Order. Signed by Judge Andrew P. Gordon on 8/3/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
BRANDI GAINES an individual, on behalf of Case No. 2:14-cv-00110-APG-PAL
herself and those similarly situated,

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Plaintiffs,

ORDER DENYING RECONSIDERATION

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v.

(Dkt.# 16)

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PDL RECOVERY GROUP, LLC, a New
York limited liability Company,

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Defendant.

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Plaintiff Brandi Gaines filed a class action complaint against defendant PDL Recovery

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Group, LLC, alleging causes of action for (1) violation of the Electronic Funds Transfer Act, 15

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U.S.C. §§ 1693, et seq., (2) violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§

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1692, et seq., and (3) violation of the Nevada Deceptive Trade Practices Act, NRS Chapter 598.1

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PDL was properly served by publication and failed to respond to the lawsuit, resulting in entry of

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default against it on September 8, 2014.2
Gaines filed an unopposed motion to proceed with discovery of the class claims.3 On

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October 28, 2014, Magistrate Judge Leen held a hearing on the motion and orally denied it.4 She

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expressed concern that class discovery would be protracted as PDL allegedly defaulted on the

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complaint because it could not afford the cost of litigation. In light of this, and because Gaines

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failed to make any threshold showing that a viable class existed, Judge Leen found that class

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discovery was not warranted. Gaines has moved to reconsider Judge Leen’s denial of her

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motion.5 For the reasons discussed below, the motion is denied.

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(Dkt.# 1.)

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(Dkt.# 11.)
(Dkt.# 13.)

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(Dkt.# 15.)

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(Dkt.# 16.)

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Magistrate judges are authorized to resolve pretrial matters subject to district court review

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under a “clearly erroneous or contrary to law” standard.6 A magistrate judge’s order is “clearly

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erroneous” when “although there is evidence to support it, the reviewing body on the entire

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evidence is left with the definite and firm conviction that a mistake has been committed.”7 “An

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order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of

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procedure.”8 A magistrate’s pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not subject to

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de novo review, and the reviewing court “may not simply substitute its judgment for that of the

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deciding court.”9
Gaines asserts that Judge Leen’s denial of her discovery request was clearly erroneous and

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contrary to law. The entirety of Gaines’s argument rests on citing several cases involving similar

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procedural circumstances where district courts have allowed limited discovery for class

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certification purposes. Gaines fails to explain how these cases are relevant to the analysis here.

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The simple fact that other judges have exercised their discretion differently and allowed discovery

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of class claims under similar procedural circumstances is insufficient to demonstrate that Judge

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Leen’s decision was clearly erroneous or contrary to law.10
As no class has been certified, the motion in essence seeks precertification discovery.

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Precertification discovery lies within the court’s discretion.11 Whether to allow such discovery is

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based on “need, the time required, and the probability of discovery resolving any factual issues

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necessary for the determination” of whether a class action is maintainable.12 Judge Leen’s denial

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of the motion was well within her discretion and, thus, was not clearly erroneous.

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28 U.S.C. § 636(b)(1)(A); see also LR IB 3-1(a).

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See United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (citation omitted).

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Global Advanced Metals USA, Inc. v. Kemet Blue Powder Corp., No. 3:11-cv-00793, 2012 WL
3884939, at *3 (D. Nev. Sept. 6, 2012).
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Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991).
I also note that most of the cases are unpublished and from other jurisdictions.

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Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (citing Kamm v.
Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir. 1975)).

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Kamm, 509 F.2d at 210.
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Nonetheless, the Ninth Circuit has explained that in some cases discovery will be

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warranted because the pleadings alone will not resolve the question of class certification.13 Gaines

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is not precluded from making a subsequent request seeking discovery should she establish it is

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warranted.14
IT IS THEREFORE ORDERED Gaines’s Motion for Reconsideration (Dkt. #16) is

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DENIED.

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DATED THIS 3rd day of August, 2015.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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Vinole, 571 F.3d at 942.

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See Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985) (explaining the plaintiff in a class
action “bears the burden of … showing that … discovery is likely to produce substantiation of the
class allegations”).

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