The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JERARD BROWN and
ELIZABETH CARDONA,
Plaintiffs,
v. Case No. 8:18-cv-2838-T-24 JSS
VIVINT SOLAR, INC., ET AL.,
Defendants.
______________________________/
ORDER
This cause comes before the Court on two motions: (1) Vivint’s Motion to Sever and for
Separate Trials (Doc. No. 157), which Plaintiffs oppose (Doc. No. 164); and (2) Vivint’s Motion
to Bifurcate Trial (Doc. No. 159), which Mosaic joins (Doc. No. 163) and Plaintiffs oppose
(Doc. No. 166). As explained below, the Court denies both motions.
I. Background
Plaintiffs Jerard Brown and Elizabeth Cardona bring this lawsuit alleging violations of
the Fair Credit Reporting Act (“FCRA”) by Defendants. Defendant Vivint Solar, Inc. is the
parent company of Defendant Vivint Solar Developer, LLC (collectively referred to as “Vivint”),
and they sell solar panels. Defendant Solar Mosaic, Inc. (“Mosaic”) is a financing company that
finances solar energy systems.
Vivint’s door-to-door salesmen go to potential customers’ houses to attempt to sell Vivint’s
solar panels. These salesmen have iPads with them, on which a potential customer can access
Mosaic’s online credit application to apply for financing for the purchase of Vivant’s solar panels.
Plaintiffs contend that Vivint’s salesmen came to their houses and completed Mosaic’s online credit
application in Plaintiffs’ names without Plaintiffs’ knowledge or consent. Thus, Plaintiffs contend
that all three defendants acted together through Vivint’s door-to-door salesmen to obtain Plaintiffs’
credit reports under false pretenses and without any permissible purpose or authorization.
II. Vivint’s Motion to Sever and for Separate Trials
Vivint moves the Court to sever Plaintiffs’ claims and try each of the plaintiff’s claims
separately. Vivint argues that since Plaintiffs live in different cities, dealt with different salesmen
who reported to different supervisors, and had their encounters at different times, their claims should
be severed. Vivint argues that this is necessary in order to prevent jury confusion that could result
from the differing evidence proffered by the two different plaintiffs. Vivant also argues that severing
is necessary to avoid unfair prejudice to Vivint, because the jury may believe that if two people allege
that their credit reports were pulled without authorization or a permissible purpose, the jury may
conclude that Vivint must be liable.
Plaintiffs respond that there will be significant overlapping evidence at trial. Specifically,
Plaintiffs point out that they will each show that Vivint incentivized its salesmen to qualify
consumers for credit through Mosaic and that Mosaic told Vivint on several occasions about the
perceived problem of impermissible credit pulls by Vivint’s salesmen. Furthermore, Plaintiffs intend
to introduce the same pattern and practice evidence relating to other consumers that complained that
Vivint’s salesmen ran their credit without their permission. Finally, Plaintiffs argue that any potential
prejudice or confusion can be addressed with jury instructions.
Vivint cites to Rules 42 and 21 of the Federal Rules of Civil Procedure in support of its
arguments that each plaintiff’s claims should be tried separately. As explained below, the Court finds
that severing Plaintiffs’ claims and holding two separate trials is not warranted.
A. Rule 21
Vivint moves for a severance based on Rule 21. Rule 21 allows the Court to sever any claim
against a party. In considering Vivint’s argument for severance based on Rule 21, the Court
considers the following factors:
(1) whether the claims arise out of the same transaction or
occurrence; (2) whether the claims present some common questions
of law or fact; (3) whether settlement of the claims or judicial
economy would be facilitated; (4) whether prejudice would be
avoided if severance were granted; and (5) whether different
witnesses and documentary evidence are required for the separate
claims.
Securities and Exchange Commission v. Martin, 2018 WL 3827206, at *3 (M.D. Fla. Feb. 15,
2018)(citations omitted).
Vivint argues that Plaintiffs’ claims do not arise out of the same transaction or
occurrence, because Plaintiffs dealt with different salesmen on different dates in different cities.
However, when determining whether severance is appropriate under Rule 21, “the term
‘transaction is a word of flexible meaning’ that ‘may comprehend a series of many occurrences,
depending not so much upon the immediateness of their connection as upon their logical
relationship.’” Gonzalez v. Batmasian, 320 F.R.D. 580, 581 (S.D. Fla. Mar. 29, 2017)(citation
omitted). The Court finds that Plaintiffs’ claims arise out of the same series of transactions—
Vivint’s salesmen’s attempts to qualify customers for credit with Mosaic.
Furthermore, Plaintiffs’ claims present common questions of law and fact—whether the
same conduct alleged to have been committed by Vivint’s salesmen on behalf of Defendants
violated the FCRA. Judicial economy would not be facilitated by holding separate trials on
Plaintiffs’ related claims that they will attempt to prove using overlapping witnesses and
documentary evidence. Any prejudice that Vivint contends may occur by trying Plaintiffs’
claims together can be mitigated by proper jury instructions. Accordingly, the Court denies
Vivint’s request for a severance based on Rule 21.
B. Rule 42(b)
Vivint also moves for a severance based on Rule 42(b). Rule 42(b) provides that “[f]or
convenience, to avoid prejudice, or to expedite and economize, the court may order a separate
trial of one or more separate issues [or] claims.” Fed. R. Civ. P. 42(b). Thus, the considerations
under Rule 42(b) are similar to the considerations under Rule 21. See Gonzalez, 320 F.R.D. at
581. For the same reasons that the Court finds that severance is not warranted under Rule 21, the
Court finds that severance is not warranted under Rule 42(b). Accordingly, Vivint’s motion to
sever Plaintiffs’ claims into two separate trials is denied.
III. Defendants’ Motion to Bifurcate
Next, Defendants move the Court to bifurcate the trial into two stages: first, determining
whether Defendants used or obtained Plaintiffs’ credit reports for an impermissible purpose; and
second, determining all remaining issues (i.e., whether Defendants acted negligently or willfully and
the amount of Plaintiffs’ damages, which could include punitive damages for willful conduct).
Defendants ask the Court for bifurcation, because they argue that the majority of Plaintiffs’ case will
be spent trying to show that Defendants acted willfully through pattern and practice evidence, and
time spent on such evidence will be avoided if the jury first determines the narrow issue of whether
Defendants used or obtained Plaintiffs’ credit reports for an impermissible purpose and finds in favor
of Defendants on that issue. Furthermore, Defendants contend that the pattern and practice evidence
of other customer complaints will unfairly prejudice Defendants if introduced prior to the jury
determining whether Defendants used or obtained Plaintiffs’ credit reports for an impermissible
purpose.
Defendants rely on Rule 42(b) to support their argument for bifurcation. As previously stated,
Rule 42(b) provides that “[f]or convenience, to avoid prejudice, or to expedite and economize, the
court may order a separate trial of one or more separate issues [or] claims.” Fed. R. Civ. P. 42(b). As
explained below, the Court agrees with Plaintiffs that the requested bifurcation is not warranted.
Plaintiffs argue that a single trial promotes judicial economy due to the substantial overlap of
evidence relating to whether Defendants used or obtained Plaintiffs’ credit reports for an
impermissible purpose and whether Defendants acted willfully. For example, one of Mosaic’s
arguments in support of summary judgment was that it reasonably believed that Plaintiffs’ credit
applications were submitted with Plaintiffs’ consent. In addressing this argument in its summary
judgment order, the Court stated the following:
[W]hile Plaintiffs may have been victims of identity theft with
respect to the loan applications to Mosaic, there is a genuine issue
of fact regarding whether Mosaic knew or should have known that
there was a possibility that the loan applications were not, in fact,
submitted by Plaintiffs. There is evidence before the Court showing
that Mosaic knew that there were problems with unauthorized credit
checks caused by Vivint’s salespeople, and it is for the jury to decide
whether such evidence undercuts Mosaic’s contention that it had a
reasonable belief that it had a permissible purpose for checking
Plaintiffs’ credit.
(Doc. No. 145, p. 10).
Additionally, Plaintiffs contend that Defendants will likely argue that the consent forms/credit
applications allegedly electronically signed by Plaintiffs are evidence that Plaintiffs consented to
have their credit checked. Likewise, Plaintiffs contend that Defendants will likely argue that Vivint’s
policies and procedures were sufficient to keep their salesmen from fraudulently submitting the
consent forms/credit applications without the customer’s consent. Plaintiffs contend that Defendants’
knowledge that other customers complained that their credit was checked without their consent (and
Mosaic responding by asking credit reporting companies to remove the hard credit pulls) is relevant
to counter these defenses (and is also relevant to the issue of willfulness).
The above examples show that the evidence Plaintiffs intend to use to prove that Defendants
used or obtained Plaintiffs’ credit reports for an impermissible purpose and to overcome Defendants’
defenses thereto overlaps with evidence regarding Defendants’ knowledge and the willfulness of
Defendants’ actions. The Court agrees with Plaintiffs that bifurcation is not warranted. Furthermore,
the Court can give jury instructions to ensure that the jury is not confused by the evidence admitted at
trial.
IV. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that:
(1) Vivint’s Motion to Sever and for Separate Trials (Doc. No. 157) is DENIED.
(2) Defendants’ Motion to Bifurcate Trial (Doc. No. 159, 163) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 8th day of May, 2020.
Supe, CO el, 9
SUSAN C. BUCKLEW
United States District Judge
Copies to: Counsel of Record