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 (“Hewitt”) Third Motion
to Bifurcate Discovery filed on January 9, 2018. Doc. 97.
Hewitt seeks to bifurcate discovery into two phases,
individual merits discovery and class discovery. Id.
Plaintiff opposes the requested relief. Doc. 98.
January 13, 2017, Plaintiff filed a Class Action Complaint
against various Defendants including Hewitt under the
Telephone Consumer Protection Act (“TCPA”) and
the Junk Fax Prevention Act (“JFPA”). Doc. 1. On
February 10, 2017, Plaintiff filed a First Amended Class
Action Complaint. Doc. 22. Defendants moved to dismiss this
complaint, which United States District Judge Sheri Polster
Chappell granted and dismissed the Amended Complaint without
prejudice. Docs. 36, 45, 63. On August 14, 2017, Plaintiff
filed a Second Amended Class Action Complaint, the operative
complaint. Doc. 69. Plaintiff alleges that on December 23,
2016, Defendants sent an unsolicited facsimile to Plaintiff.
Id. ¶ 19. Defendants again moved to dismiss the
Second Amended Class Action Complaint, which Judge Chappell
denied. Docs. 75, 77, 93.
Defendants' motions to dismiss were pending, Hewitt twice
moved to stay and bifurcate discovery. Docs. 42, 76. The
undersigned twice stayed all discovery pending a
determination of the motions to dismiss and denied without
prejudice Hewitt's requests to bifurcate discovery. Docs.
60, 92. On December 11, 2017, when Judge Chappell denied
Defendants' motions to dismiss the Second Amended Class
Action Complaint, Judge Chappell lifted the discovery stay
and directed the parties to file an amended Case Management
Report. Doc. 93 at 8. On December 19, 2017, the parties filed
a Case Management Report - Amended, indicating Plaintiff
wishes to conduct Rule 23 class discovery first whereas
Hewitt proposes to conduct individual discovery first and
then file dispositive motions on individual issues. Doc. 94
parties admit, a district court has broad discretion in
managing its cases, including whether to bifurcate discovery.
Docs. 97 at 8, 98 at 18-19. See Chrysler Int'l Corp.
v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002);
Degutis v. Fin. Freedom, LLC, No.
2:12-cv-319-FTM-38, 2013 WL 10207621, at *1 (M.D. Fla. Oct.
18, 2013) (citation omitted); Physicians Healthsource,
Inc. v. Anda, Inc., No. 12-60798-CIV, 2012 WL 7856269,
at *1 (S.D. Fla. Nov. 27, 2012) (citing Johnson v. Bd.
of Regents of Univ. of Ga., 263 F.3d 1234, 1269
(11th Cir.2001). “Although . . . courts may elect to
bifurcate class-certification discovery and merits discovery,
courts may also decline to exercise that discretion.”
Cabrera v. Gov't Emps. Ins. Co., No. 12-
61390-CIV, 2014 WL 2999206, *8 (S.D. Fla. July 3, 2014).
Courts are mindful of the Federal Rules of Civil Procedure,
which allow broad discovery “in favor of
once-and-for-all litigation as to all issues, ” so that
“[s]uch wide access by all parties to matters touching
all issues to be tried allows each side to prepare its case
thoroughly and try it efficiently.” Ward v.
Estaleiro Itajai S/A, 541 F.Supp.2d 1344, 1353 (S.D.
Fla. 2008) (citing Fed.R.Civ.P. 26(b)(1)).
seeks to first conduct discovery on the merits of
Plaintiff's individual claim because after individual
merits discovery, Hewitt argues it anticipates to file a
meritorious motion for summary judgment. Doc. 97 at 1-2.
Hewitt asserts the motion may resolve the entire case or
streamline the proceedings because Plaintiff requested to
receive a facsimile, and Defendants Astro Tax Services LLC
and Naveen Mathur sent a facsimile to Plaintiff without
Hewitt's approval or involvement. Id. at 2-6.
Hewitt seeks not to bear unnecessary discovery costs until
the Court rules on the merits of Plaintiff's individual
claim against Hewitt. Id. at 6. Hewitt further
argues bifurcating discovery will not prejudice Plaintiff.
Id. 6-7. Plaintiff responds Hewitt's grounds for
its anticipated motion for summary judgment lack merit. Doc.
98 at 7-18. Plaintiff further argues phasing discovery will
prejudice it and unnecessarily delay this case because it
will take approximately four to six months until the Court
rules on Hewitt's anticipated motion for summary
judgment. Id. at 18-20.
Court will deny Hewitt's motion to bifurcate discovery
because the Court does not find bifurcated discovery will
serve the interests of judicial economy. Hewitt's
anticipated motion for summary judgment is based on two
grounds: Plaintiff requested other Defendants to send a fax
advertisement, and Hewitt is not a sender of the fax at issue
within the TCPA. Doc. 97 at 3-6. The Court finds the merits
of these grounds are not clear at this stage, and thus
bifurcating discovery will not conserve resources of the
parties or the Court.
Hewitt asserts it is not the sender of a fax because the fax
at issue did not refer to any services to be provided by
Hewitt, but still concedes the fax carried the service mark
“Jackson Hewitt Tax Services.” Id. at 5.
Without ruling on the merits of this argument, the
undersigned notes Judge Chappell's Opinion and Order
addressed the definition of the “sender, ”
stating “the sender does not need to be the individual
who actually sent the fax, only that the sender is the
benefitting party.” Doc. 93 at 6 (citations and
internal quotation marks omitted). Judge Chappell agreed with
another court's holding that:
the plaintiff's allegations that the fax was unsolicited
and “an advertisement prominently displaying
Defendant's name, the goods and services that it purveys,
and its contact information[, ]” in addition to
allegations that the fax was “sent by or on behalf of
the Defendants advertising products, goods and services of
the Defendants during the Class Period[, ]” satisfied
the statutory definition of “sender” and its
complaint survived dismissal.
Id. In a similar TCPA case, Senior United States
District Judge John E. Steele also upheld the Federal
Communications Commission's definition of the sender as
“one whose goods or services are promoted in
the unsolicited fax may be held strictly liable under the
TCPA for its transmission, even absent a showing
that the fax was sent on its behalf.” Scoma
Chiropractic, P.A. v. Dental Equities, LLC, 232
F.Supp.3d 1201, 1204 (M.D. Fla. 2017) (emphasis in original).
addition, the parties have a factual dispute over whether
Plaintiff requested other Defendants to send a fax because
Plaintiff contends Hewitt did not have its prior invitation
or permission to send a fax advertisement, and Hewitt's
evidence supporting its claim is false. Doc. 98 at 8-9. Given
the parties' factual and legal disputes, the Court cannot
conclude Hewitt's likelihood of success on its
anticipated motion for summary judgment is as clear and
definitive as it argues.
Hewitt does not clearly establish how merits discovery would
aid its future motion for summary judgment or it cannot bear
the burden of class discovery at this stage. Doc. 97. Nothing
prevents Hewitt from moving for early summary judgment, even
if discovery is not bifurcated. If Hewitt finds discovery
objectionable or burdensome, Hewitt is at its liberty to
object, but it is not exempt from broad discovery rules.
Exemar v. Urban League of Greater Miami, Inc., No.
08-20463-CIV, 2008 WL 2645675, at *3 (S.D. Fla. June 26,
2008) (“The Federal Rules are designed to assure
‘the just, speedy, and inexpensive determination of
every action, ' which does not necessarily mean that
individual litigants are spared every possible burden or
expense.”). Without addressing the merits of the
parties' substantive claims, the Court finds Hewitt's
hardship associated with class discovery does not outweigh
the inconvenience to Plaintiff and the resulting delay of
this case. See Id. at *4. Thus, the Court will deny
the motion to bifurcate discovery. Because certain deadlines
in the amended Case Management Report (Doc. 94) had expired,
the Court will adjust the deadlines and issue a Case
Management and Scheduling Order accordingly.