Kopen v. Brown et al
ORDER granting 8 Motion for Discovery. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 01/23/2017. (ZS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NANCY KOPEN, individually and on behalf
of all others similarly situated,
DECISION AND ORDER
BRAUFMANN, LEIGHMANN & ASSOCIATES,
LLC and BRIAN ALONZO BROWN,
Plaintiff Nancy Kopen (“Plaintiff”) has filed a putative class action complaint seeking
relief under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ECF No. 1. After
Defendants failed to answer or otherwise move against the complaint, Plaintiff applied for, and
received, a Clerk’s Entry of Default. ECF No. 7. Plaintiff has not yet moved for default
judgment. See Fed. R. Civ. P. 55(b). Instead, Plaintiff seeks “leave to proceed with discovery in
an effort to certify the class.” ECF No. 8.
Rule 26(d)(1) of the Federal Rules of Civil Procedure provides that “[a] party may not
seek discovery from any source before the parties have conferred as required by Rule 26(f),
except . . . when authorized by these rules, by stipulation, or by court order.” Fed. R. Civ. P.
Under similar circumstances, district courts in the Second Circuit have granted
plaintiffs an opportunity to conduct class discovery before moving for default judgment.
Williams v. NRS Billing Servs., LLC, No. 16-CV-75, 2016 U.S. Dist. LEXIS 98101 (W.D.N.Y.
July 27, 2016); DeNicola v. Asset Recovery Sols., LLC, No. CV 11-1192, 2011 U.S. Dist. LEXIS
61976 (E.D.N.Y. May 18, 2011).
Here, Plaintiff argues that “Defendants should not be permitted to avoid class liability by
refusing to file a responsive pleading” and that in order to establish the composition of the class
and the amount of damages, “Plaintiff needs to conduct discovery to identify the number of
customers who received the offending voice mails and Defendants’ financial net worth.” ECF
No. 8-1, at 2. Based on Plaintiff’s proffer and the authority cited above, the Court agrees that
allowing such discovery to proceed is appropriate in this case. Therefore, Plaintiff’s motion is
GRANTED. Plaintiff may seek discovery as if Defendants were non-defaulting parties.
IT IS SO ORDERED.
Dated: January 23, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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