The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JENNIFER DELAROSA,
Plaintiff,
v. Case No: 8:23-cv-179-CEH-SPF
PAPA JOHN’S INTERNATIONAL,
INC.,
Defendant.
ORDER
This cause comes before the Court on Defendant Papa John’s International,
Inc.’s Motion to Bifurcate Discovery (Doc. 17). In this putative class action brought
under the Florida Telephone Solicitation Act (“FTSA”), Plaintiff alleges that
Defendant Papa John’s International, Inc., sent her and other putative class members
an automated, marketing text message without prior express written consent. Doc. 21.
Defendant’s motion requests to conduct discovery in three phases. Doc. 17. Plaintiff
opposes the motion (Doc. 22), and Defendant has filed a reply (Doc. 29).
Upon review and consideration, and being fully advised in the premises, the
Court will deny the motion.
DISCUSSION
In its motion, Defendant asserts that good cause supports the bifurcation—or,
more accurately, trifurcation—of discovery into three phases: the merits of Plaintiff’s
individual claims, class certification issues, and the merits of the class claims. Doc. 17
at 1. Defendant argues that Plaintiff’s individual claims will “inevitably” be
“dismissed as meritless,” and bifurcation would allow the parties and the Court to
avoid the far more resource-intensive process of discovery on the class certification
issues and class claims until or unless the class proceeds. Id. at 1-5. It asserts that it
will be prejudiced by unnecessarily having to undergo class-wide discovery
simultaneously with that of the individual claims. Id. at 5. Even if the individual
claims survive, Defendant argues that the class is not certifiable. Id. at 5-6. For this
reason, Defendant contends it will be more expeditious to postpone discovery on the
merits of the class claims until after class certification, thereby allowing the Court to
review the propriety of class certification at an earlier time. Id. at 6-7.
Concurrently with its motion to stay, Defendant moved to dismiss the
Complaint for failure to state a claim and to strike the class allegations. After Plaintiff
filed an Amended Complaint, the Court dismissed both motions as moot. Docs. 21,
23, 24. The Court also dismissed as moot Defendant’s concurrently-filed motion to
stay discovery pending resolution of the motions to dismiss and strike class allegations.
Docs. 16, 30. Defendant has filed new motions to dismiss and to strike the class
allegations that are not yet ripe. Docs. 31, 32.
Plaintiff opposes bifurcation of discovery. Doc. 22. She argues that the motion
is moot because it relies on the same arguments Defendant made in the motions to
dismiss and strike class allegations that were deemed moot. Id. at 5-6. On the merits,
she asserts that phased discovery will be inefficient, because many of the issues and
witnesses will necessarily overlap between the phases. Id. at 6-7.1
Courts have “broad discretion over the management of pre-trial activities,
including discovery and scheduling.” Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d
1234, 1269 (11th Cir. 2001). Such discretion extends to the ability to bifurcate
discovery between issues pertaining to class certification and the merits. See Washington
v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11th Cir. 1992).
Nonetheless, “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 have declined to bifurcate discovery where the issues to be raised in the
proposed phases are so intertwined that it would not be in the interest of judicial
economy to conduct discovery on them separately. See, e.g., Tillman v. Ally Financial,
Inc., 2:16-cv-313-JES-CM, 2016 WL 9504326, *3 (M.D. Fla. Oct. 12, 2016) (declining
to bifurcate discovery because “the issues cannot be divided into separate discovery
categories”); Lakeland Regional Medical Ctr., Inc. v. Astellas US, LLC, 8:10-cv-2008-VMC-
TGW, 2011 WL 486123, *2 (M.D. Fla. Feb. 7, 2011) (Covington, J.) (same, because
“the line between ‘class issues’ and ‘merits issues’ is practically difficult, if not
impossible, to determine.”); cf. Methelus v. School Bd. of Collier Cnty., 2:16-cv-379-DNF,
1 Plaintiff also argues that the motion should be dismissed because Defendant mistakenly
stated that her claim was brought under the Telephone Consumer Protection Act, the federal
counterpart of the FTSA, and because the motion failed to comply with the Middle District
of Florida’s Local Rules regarding font and size requirements. Doc. 22 at 3-5. The Court
declines to deny the motion on either basis, but cautions Defendant to ensure that its future
filings comply with the Local Rules.
2016 WL 8539815, *2 (M.D. Fla. July 21, 2016) (recommending bifurcation of
discovery where “the nature and scope of the claims in the case and the challenge to
standing must be determined before any ruling on class certification would be
appropriate”); Physicians Healthsource, Inc. v. Anda, Inc., No. 12-60798-CIV, 2012 WL
7856269, *2 (S.D. Fla. Nov. 27, 2012) (permitting bifurcation where defendant “made
a plausible argument that it may be able to prevail on the merits against Plaintiff’s
individual claims”). The “general practice in the Middle District of Florida is not to
bifurcate discovery.” Davis v. Coastal Dental Services, LLC, 8:22-cv-941-KKM-TGW,
2022 WL 4553071, *1 (M.D. Fla. Sept. 1, 2022).
Here, the Court declines to exercise its discretion to bifurcate discovery. As
explained in Lakeland Regional, the distinction between merits and class issues is often
“murky at best, and impossible to discern at worst.” 2011 WL 486123 at *2. The Court
is not persuaded that the class and merits issues in this action are unusually distinct,
such that there would be little to no overlap between the phases of discovery. Further,
although Defendant has renewed its motion to dismiss Plaintiff’s individual claims,
the motion alleges the existence of a pleading deficiency rather than a dispositive
merits issue or threshold issue such as standing. Cf. Methelus, 2016 WL 8539815 at *2;
Physicians Healthsource, 2012 WL 7856269 at *2. In all, the circumstances do not
warrant a deviation from this District’s general practice of disfavoring bifurcation. See
Davis, 2022 WL 4553071 at *1.
Accordingly, it is ORDERED:
1. Defendant Papa John’s International, Inc.’s Motion to Bifurcate Discovery
(Doc. 17) is DENIED.
DONE and ORDERED in Tampa, Florida on April 24, 2023.
Chal tare t AiJanda No Ta pl yell 0.
Charlene Edwards Honeywell
United States District Judge
Copies furnished to:
Counsel of Record
Unrepresented Parties