United States District Court, M.D. Florida, Tampa Division
BRUCE KATZ, M.D., P.C., individually and on behalf of all others similarly situated, Plaintiff,
GOKUL RX LLC, a Florida limited liability company, and BENZER FRANCHISING LLC, a Florida limited liability company, Defendants.
P. FLVNN UNITED STATES MAGISTRATE JUDGE.
cause comes before the Court upon Defendants' Joint
Motion to Bifurcate Discovery (Doc. 25). Plaintiff filed a
Response in Opposition (Doc. 33). Alleging violations of the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, Plaintiff sues Defendants on behalf of
himself and a proposed class of others similarly situated
(Doc. 20). Plaintiff brings one count, alleging Defendants
used a fax machine, computer, or other device to send
unsolicited fax advertisements to Plaintiff and other members
of the proposed class, or others did so on their behalf (Doc.
20 at ¶¶ 53-58). The unsolicited fax advertised the
drug Myorisan from Gokul's pharmacy (Doc. 20 at ¶
21). The claim against Benzer is based on a theory of
vicarious liability (Doc. 20 at ¶¶ 30-42).
seek to bifurcate individual merits discovery from class
discovery. Defendants contend that bifurcating discovery will
allow the parties to preserve precious judicial resources and
limit costs to be incurred in litigating a putative class
action. Specifically, Defendants argue the issue of whether
Benzer can be held vicariously liable for the alleged acts of
Gokul in light of their franchisor-franchisee relationship is
a potentially dispositive, threshold issue that must be
resolved before the parties engage in class discovery.
Plaintiff opposes the bifurcation pointing to the risk of
loss of relevant evidence necessary to identify class members
and their damages. Plaintiff also argues that it would be
inefficient to bifurcate discovery as proposed by Defendants
because the action will continue against Gokul regardless of
any decision as to Benzer's vicarious liability and,
given the overlap between class and merits discovery and the
lack of a unique defense as to Plaintiff, trying to limit
discovery to individual merits issues will result in needless
discovery disputes. Plaintiff suggests each Defendant's
ability to move for summary judgment at any time during the
discovery period allows them to address a lack of vicarious
liability or an individualized defense to Plaintiff's
claim as needed.
parameters of this Court's consideration has been
proficiently described as follows:
A court also has broad discretion to bifurcate discovery.
Scoma Chiropractic, P.A. v. Jackson Hewitt Inc., No.
2:17-cv-24-FtM-38CM, 2018 WL 1620899, at *1 (M.D. Fla. Apr.
4, 2018) (unpublished) (citing cases). In the TCPA context, a
motion to bifurcate individual and class discovery is not
unheard of, with varied results largely based on educated
guesses about future unknowns. … In those cases,
courts have considered various factors: the likelihood of
overlap of individual and class discovery, the likelihood of
ensuing discovery motions, the likelihood of prejudice to the
nonmovant, evidence suggesting the claims of the named
plaintiffs lack merit or the absence of such evidence, the
timing of the bifurcation motion, whether the case can
continue if the claims of the named plaintiffs are dismissed,
the interests of judicial economy, and the “early
practicable time” requirement of Rule
23(c)(1)(A). Added to those considerations is the goal
of “just, speedy, and inexpensive determination of
every action” reflected in Rule 1.
Breines v. Pro Custom Solar LLC, No.
3:19-cv-353-J-39PDB, 2019 WL 7423522, at *3 (M.D. Fla. Aug.
22, 2019) (comparing Charvat v. Plymouth Rock Energy,
LLC, No. 15-CV-4106 (JMA) (SIL), 2016 WL 207677, at *2-3
(E.D.N.Y. Jan. 12, 2016) (denying motion) and True
Health Chiropractic Inc. v. McKesson Corp., No.
13-cv-2219-JST, 2015 WL 273188, at *2-3 (N.D. Cal. Jan. 20,
2015) (denying motion) with Katz v. Liberty Power Corp.,
LLC, No. 18-cv-10506-A DB, 2019 WL 957129, at *2 (D.
Mass. Feb. 27, 2019) (granting motion), Rivera v. Exeter
Fin. Corp., No. 15-cv-01057-PAB-MEH, 2016 WL 374523, at
*2 (D. Col. Feb. 1, 2016) (referencing earlier order granting
motion), and Leschinsky v. Inter-Continental Hotels
Corp., No. 8:15-cv- 1470-T-30MAP, 2015 WL 6150888, at *1
(M.D. Fla. Oct. 15, 2015) (granting motion)).
all pertinent factors and the valid arguments made by the
parties, the Court finds bifurcation is unwarranted. The
decision is supported by the likelihood of overlap of
individual and class discovery, the likelihood of ensuing
discovery motions, the likelihood of prejudice to the
nonmovant, the absence of evidence suggesting the claim of
the named Plaintiff lacks merit, and the interests of
judicial economy. The consideration of these factors
additionally includes the expectation that the parties will
adhere to the proportionality requirement of Rule 26(b)(1)
and the availability of relief under Rule 26(c)(1) should
discovery become unduly burdensome or expensive for
Defendants. See Breines, 2019 WL 7423522, at *4.
it is hereby ORDERED:
Joint Motion to Bifurcate Discovery (Doc. 25) is DENIED.
 Rule 23(c)(1)(A) provides that,
“[a]t an early practicable time after a person sues or
is sued as a class representative, the court must determine
by order whether to certify the action as a class
action.” Fed.R.Civ.P. 23(c)(1)(A); see also
L.R. 4.04(b), M.D. Fla. “Time may be needed to gather
information necessary to make the certification decision. ...
[D]iscovery in aid of the certification decision often
includes information required to identify the nature of the
issues that actually will be presented at trial.”
Advisory Comm. Notes (2003 Amend.). “Other
considerations may affect the timing of the certification
decision. The party opposing the class may prefer to win
dismissal or summary judgment as to the individual plaintiffs
without certification and without binding the class that
might have been certified.” Id.
 Rule 1 provides that the rules
“should be construed, administered, and employed by the
court and the parties to secure the just, speedy, and
inexpensive determination of every action ...