United States District Court, M.D. Florida, Fort Myers Division
SCOMA CHIROPRACTIC, P.A., a Florida corporation, individually and as the representative of a class of similarly-situated persons Plaintiff,
JACKSON HEWITT INC., JACKSON HEWITT TECHNOLOGY SERVICES LLC, ASTRO TAX SERVICES LLC, JOHN DOES 1-5 and NAVEEN MATHUR, Defendants.
MIRANDO UNITED STATES MAGISTRATE JUDGE
matter comes before the Court upon review of Defendant
Jackson Hewitt Inc.'s Second Motion to Stay and Bifurcate
Discovery and Incorporated Memorandum of Law (Doc. 76) filed
on August 28, 2017.
reviewing this Motion, the Court finds itself back at the
place where it began. Plaintiff initially filed a class
action complaint against Jackson Hewitt Inc. (“Jackson
Hewitt”), Jackson Hewitt Technology Services LLC
(“JH Tech”), Astro Tax Services LLC (“Astro
Tax”), John Does 1-5, and Naveen Mathur
“Defendants”) pursuant to the Telephone Consumer
Protection Act (“TCPA”) and the Junk Fax
Prevention Act (“JFPA”) on January 13, 2017. Doc.
1. Plaintiff amended its Complaint on February 10, 2017. Doc.
22. The Complaint alleged that Plaintiff received an
unsolicited facsimile from Defendants on or about December
23, 2016. Id. ¶ 14. Plaintiff also alleged that
the facsimile did not display a proper opt-out notice as
required by 47 C.F.R. § 64.1200, and that at least 40
other recipients were sent the same advertisement.
Id. ¶¶ 17, 19.
Hewitt and JH Tech responded to Plaintiff's Amended
Complaint by filing a Motion to Dismiss on March 20, 2017.
Doc. 36. This was followed closely by a Motion to Stay and
Bifurcate Discovery filed on March 29, 2017 (Doc. 40) and
amended on April 5, 2017 (Doc. 42). On April 13, 2017 Astro
Tax and Mathur also filed a Motion to Dismiss. Doc. 45. On
June 26, 2017 the Court granted in part Jackson Hewitt and JH
Tech's Motion to Stay and Bifurcate Discovery, staying
discovery pending a determination on the pending motions to
dismiss and denying without prejudice the Motion to Bifurcate
pending the same. Doc. 60 at 6-7. Subsequently, the Honorable
Sheri Polster Chappell granted the pending motions to dismiss
and dismissed Plaintiff's First Amended Complaint without
prejudice. Doc. 63.
August 14, 2017 Plaintiff filed its Second Amended Complaint.
Doc. 69. Jackson Hewitt, Astro Tax and Mathur again responded
by filing motions to dismiss. Docs. 75, 77. Jackson Hewitt
also filed the instant motion. Doc. 76. In its second Motion
to Dismiss, Jackson Hewitt argues, as it did previously, that
Plaintiff's Second Amended Complaint “improperly
lumps the three defendants together without specifying the
acts or omissions each allegedly committed or how one might
be liable for a violation of the TCPA by another.”
Id. at 6-9. Jackson Hewitt also argues that once
again Plaintiff fails to allege that Jackson Hewitt was the
“sender” of the alleged facsimile or that the
facsimile was sent on Jackson Hewitt's behalf.
Id. at 9-16. Finally, Jackson Hewitt argues that
Plaintiff fails to provide any factual allegations to support
its claims that this case is appropriate for class treatment.
Id. at 20-23.
on the above, Jackson Hewitt filed its Second Motion to Stay
and Bifurcate Discovery, where it again requests an order
staying discovery pending resolution of its Motion to
Dismiss. Doc. 76 at 3. If Plaintiff's complaint survives,
Defendant requests that the Court bifurcate discovery into
two phases. Doc. 76 at 4. In phase one, Jackson Hewitt
proposes 90 days for limited discovery relevant to testing
Plaintiff's claims. Id. Then, if Plaintiff's
claims survive summary judgment, Jackson Hewitt proposes that
the case move to phase two, where the parties conduct all
other discovery, including class discovery. Id.
Response to Defendants' Second Motion to Stay and
Bifurcate similarly mirrors its response to Defendants'
first motion for the same. Once again, Plaintiff defends its
(Second) Amended Complaint, while arguing that
Defendants' requested relief would cause undue prejudice
and unwarranted delay. See generally, Doc.
80. Thus, the Court finds itself faced with substantially the
same issues it was presented with when considering Jackson
Hewitt and JH Tech's prior Motion to Stay and Bifurcate
Discovery. Compare Docs. 36, 42, 50 with
Docs. 75, 76, 80.
Court noted in its previous Order (Doc. 60), District courts
have broad discretion when managing their cases in order to
ensure that the cases move to a timely and orderly
conclusion. Chrysler Int'l Corp. v. Chemaly, 280
F.3d 1358, 1360 (11th Cir. 2002). The Eleventh Circuit has
noted that “[f]acial challenges to the legal
sufficiency of a claim or defense, such as a motion to
dismiss based on failure to state a claim for relief, should
. . . be resolved before discovery begins. Chudasama v.
Mazda Motor Corp., 123 F.3d 1353 (11th Cir. 1983). Such
a dispute always presents a purely legal question; there are
no issues of fact because the allegations contained in the
pleading are presumed to be true.” Id. at 1367
(footnote omitted). “Therefore, neither the parties nor
the court have any need for discovery before the court rules
on the motion.” Id.; Horsley v. Feldt, 304
F.3d 1125, 1131 n.2 (11th Cir. 2002). Chudasama,
however, does not stand for the proposition that all
discovery in every circumstance should be stayed pending a
decision on a motion to dismiss. Koock v. Sugar &
Felsenthal, LLP, 2009 WL 2579307, at *2 (M.D. Fla. Aug.
19, 2009). “Instead, Chudasama and its progeny
‘stand for the much narrower proposition that courts
should not delay ruling on a likely meritorious motion to
dismiss while undue discovery costs mount.”
Id. (citing In re Winn Dixie Stores, Inc.,
2007 WL 1877887, at *1 (M.D. Fla. June 28, 2007)).
deciding whether to stay discovery pending resolution of a
motion to dismiss, the Court must balance the harm produced
by a delay in discovery against the possibility that the
motion will be granted and entirely eliminate the need for
such discovery. McCabe v. Foley, 233 F.R.D. 683, 685
(M.D. Fla. 2006) (citation omitted). To this end, the Court
must take a “preliminary peek” at the merits of
the dispositive motion to see if it “appears to be
clearly meritorious and truly case dispositive.”
Id. (citation and internal quotation marks omitted).
there is a pending motion by Jackson Hewitt challenging the
legal sufficiency of Plaintiff's amended complaint,
which after taking a “preliminary peek” the Court
finds meritorious, the Court will again stay discovery
pending a ruling on the motion to dismiss. As the Court noted
in its previous Order (Doc. 60), the Court is not making a
determination at this time on the merits of the Jackson
Hewitt Defendants' dispositive arguments; however, based
on its review of the relevant pleadings and motions, the
Court finds that delaying discovery until the Court rules on
whether Plaintiff has stated a viable cause of action will
cause Plaintiff little harm and promote judicial efficiency.
For the reasons discussed in its previous Order (Doc. 60),
the Court will again decline to make a bifurcation
determination pending a ruling on Jackson Hewitt's Motion
to Dismiss the Second Amended Complaint.
it is hereby
Jackson Hewitt Inc.'s Second Motion to Stay and Bifurcate
Discovery and Incorporated Memorandum of Law (Doc. 76) is
GRANTED in part in that all discovery is
STAYED pending a determination of the
Jackson Hewitt's Motion to Dismiss Second Amended Class
Action Complaint and Incorporated Memorandum of Law (Doc.
75), and the motion to bifurcate is DENIED without