Bristol et al v. Account Management Resources LLC et al
Filing
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ORDER granting in part and denying in part 22 Motion to Bifurcate; granting in part and denying in part 24 Motion to Bifurcate. The Court DIRECTS Defendants to meet and confer with the Plaintiffs and submit a joint proposed discovery and briefing schedule for the merits phase by March 31, 2016, as more fully set out. Signed by Honorable David L. Russell on 3/17/16. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SARAH BRISTOL, DAVID BRISTOL, )
on behalf of plaintiffs and a class,
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Plaintiffs,
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v.
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ACCOUNT MANAGEMENT
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RESOURCES, LLC; ROBINSON
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HOOVER & FUDGE, PLLC; and
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DOES 1-10
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Defendants.
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Case No. CIV-15-1049-R
ORDER
Before the Court are two motions to bifurcate (Doc. Nos. 22 & 24) filed separately
by Defendants Robinson Hoover & Fudge, PLLC (“RHF”) and Account Management
Resources, LLC (“AMR”). Both motions ask this Court to bifurcate this putative class
action into a merits phase and a class certification phase. Plaintiffs Sarah and David
Bristol oppose the motions. (Doc. No. 25). Upon consideration of the parties’ arguments,
the Court finds as follows.
I.
Relevant Background & Procedural History
This lawsuit is a putative class action brought under the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692e. Defendant RHF, seeking to collect on a
medical debt allegedly assigned to Defendant AMR, filed a lawsuit in state court against
Plaintiffs. In conjunction with the lawsuit, Plaintiffs were served with a summons, a
petition, and a form document (the “Form”). Plaintiffs filed the current action, alleging
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that the Form violates the FDCPA’s prohibition on false or misleading representations.
Plaintiffs seek to represent a class of “(a) all natural persons (b) to whom RHF provided a
document in the form represented by [the Form] (whether on behalf of AMR or someone
else) (c) which document was filed or served on or after a date one year prior to filing of
this action and (d) on or before a date 21 days after the filing of this action.” Compl., at ¶
34. Plaintiffs also seek to certify a subclass of “class members where RHF was acting as
attorney for AMR,” as opposed to representing another entity. Id., ¶ 35. Plaintiffs allege
the predominant question is whether the Form violates the FDCPA. Id. at ¶ 37.
Noting the substantial cost and burden of class litigation, Defendants RHF and
AMR separately filed motions to bifurcate the proceedings into an initial “merits” phase
and a subsequent “class” phase. Defendant RHF proposes that the merits phase address
the sole question of whether the Form violates the FDCPA. Defendant AMR joins RHF in
that request and additionally asks that the merits phase address the issue of its vicarious
liability. Both Defendants urge that their respective issues are potentially dispositive and
could help to streamline, if not moot, subsequent class litigation. Specifically, Defendants
argue, if the Court finds that the Form does not violate the FDCPA, that would dispose of
this case entirely. Similarly, if the Court finds that AMR is not vicariously liable for
RHF’s actions, then certain issues, including the necessity of a subclass, will be moot.
Defendants also note that these issues will involve relatively modest discovery.
In
contrast, Defendants argue, certification-related issues are numerous and complex.
Among other things, the issues include identifying putative class members amongst the
“thousands” of debtors that Defendant has sued, determining which version (if any) of the
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Form each putative class member received,1 and assessing whether a subclass like the one
Plaintiffs propose is necessary.
In response, Plaintiffs seem to tacitly acknowledge that resolution of these
threshold issues has the potential to streamline the litigation and that class certification
will involve the issues that Defendants have identified. Nevertheless, Plaintiffs oppose
bifurcation, contending it will protract and complicate discovery. Specifically, Plaintiffs
argue that merits and class-based discovery will overlap significantly and lead to
discovery disputes. However, the only such example Plaintiffs proffer is that “in
determining whether the unsophisticated or least sophisticated consumer would be misled
or confused by the communication at issue, the reactions of actual class members to the
communication at issue may be relevant to that determination.” Plaintiffs also contend
that Defendants’ motions implicitly seek to defer discovery on Defendants’ affirmative
defenses, a contention Defendant RHF denies in reply.2
II.
Analysis
Defendants’ motions seek to bifurcate this action into a “merits phase” and a “class
certification phase.” To the extent Defendants seek separate trials, rather than just
bifurcation of discovery, neither Defendant has shown that separate trials would promote
judicial economy or expediency. Accordingly, such a request would be DENIED.
Whether to bifurcate discovery rests within the sound discretion of the district
court. Loreaux v. ACB Receivables Mgmt., Inc., No. CIV.A. 14-710 MAS, 2015 WL
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Defendants identify two versions of the Form – a version that is “stamped” with a case number and one that
is “unstamped” without a case number.
2
Defendant AMR did not file a reply.
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5032052 (D.N.J. Aug. 25, 2015) (“the broad discretion afforded courts in handling
discovery disputes extends to decisions over bifurcating discovery”); see also Tracy v.
Dean Witter Reynolds, Inc., 185 F.R.D. 303 (D. Colo. 1998) (pre-certification discovery
may be subject to limitations within the sound discretion of the court). The inquiry is
guided, though not directly governed, by the standards articulated in Federal Rule of Civil
Procedure 42, the rule governing separate trials. Accordingly, motions to bifurcate
discovery may be granted “[f]or convenience, to avoid prejudice, or to expedite and
economize.” Fed. R. Civ. P. 42(b); see also Charvat v. Plymouth Rock Energy, LLC, No.
15CV4106JMASIL, 2016 WL 207677, at *1 (E.D.N.Y. Jan. 12, 2016). Under this rubric,
Courts have permitted bifurcation between merits and class discovery where the merits
involve relatively straightforward issues and could streamline or moot class-wide
litigation. See, e.g., Leschinsky v. Inter-Cont’l Hotels Corp., No. 8:15-CV-1470-T30MAP, 2015 WL 6150888 (M.D. Fla. Oct. 15, 2015) (bifurcating class and merits
discovery to first determine merits of plaintiffs’ claims); Loreaux, 2015 WL 5032052
(same).
The Court finds bifurcation of discovery is warranted. Defendants have presented a
compelling case that such bifurcation will promote judicial economy and expediency.
Whether the Form violated the FDCPA and whether AMR can be held vicariously liable
for RHF’s actions are narrow, straightforward, and potentially dispositive issues.
Moreover, litigation of these issues should involve relatively modest discovery which will
not implicate class-wide issues. Plaintiffs’ only argument to the contrary is that the actual
impressions of putative class members are relevant for both the merits and class
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considerations; however as Defendants point out, Plaintiffs fail to explain how actual
class members’ impressions would be relevant in either phase, given that courts employ
an objective “least sophisticated” or “unsophisticated” consumer standard to evaluate
FDCPA claims. See Fouts v. Express Recovery Servs., Inc., 602 F. App’x 417, 421 (10th
Cir. 2015) (applying the “least sophisticated consumer” standard); see also Gallegos v.
LVNV Funding LLC, No. 2:14-CV-516-DAK, 2016 WL 917930, at *3 (D. Utah Mar. 10,
2016) (“To determine whether a debt collector has violated the FDCPA by engaging in
any of this prohibited conduct, the majority of courts apply an objective standard based
on the least sophisticated consumer.”) (citations omitted).3 Furthermore, as to Plaintiffs’
contention that Defendants seek to defer discovery on their merits-based affirmative
defenses, Defendant RHF has denied Plaintiffs’ contention. In any event the Court would
deny such a request.
III.
Conclusion
The Court finds that bifurcation of this matter as follows is appropriate: The initial
“merits phase” will consist of discovery and briefing on two issues: (1) whether the Form
violates the FDCPA and (2) whether AMR can be held liable for RHF’s actions. At the
end of this phase, the parties may file dispositive motions on whether the Form violated
the FDCPA and/or any relevant affirmative defenses. Should the case survive this phase,
the parties will proceed into the “class certification phase,” during which the parties
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Courts differ on whether they use the “least sophisticated consumer” test or the “unsophisticated consumer
test,” and whether the differences between such tests are material. The Tenth Circuit does not appear to have
explicitly adopted either doctrine, but has either referenced or applied the “least sophisticated consumer” test
in two unpublished opinions. See Fouts, 602 F. App’x at 421; Ferree v. Marianos, 129 F.3d 130, at *1 (10th
Cir. Nov. 3, 1997) (unpublished). This Court declines to address these issues at this juncture. Regardless of
any differences in application, both tests employ an objective standard.
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would engage in discovery and briefing on whether the claims at issue are amenable to
class treatment.
In accordance with the foregoing, the Court GRANTS in part and DENIES in part
the Defendants Motions to Bifurcate (Doc. Nos. 22, 24). The Motions are GRANTED to
the extent they seek bifurcation of discovery. The Motions are DENIED to the extent they
seek separate trials.
The Court DIRECTS Defendants to meet and confer with the Plaintiffs and submit
a joint proposed discovery and briefing schedule for the “merits phase” by March 31,
2016.
IT IS SO ORDERED, this 17th day of March, 2016.
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