The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHANEL KERSWILL,
Plaintiff,
v. Case No: 8:22-cv-1131-CEH-AAS
MODERN BROKERS OF AMERICA,
LLC,
Defendant.
ORDER
This cause comes before the Court on Defendant Modern Brokers of America,
LLC’s Motions for Bifurcated Discovery (Doc. 36) and Protection from Class
Discovery (Doc. 37). In this putative class action brought under the Telephone
Consumer Protection Act (“TCPA”), Plaintiff alleges that Defendant made multiple
unwanted sales calls to her and other putative class members without prior express
written consent. Doc. 1. Defendant’s Motions ask the Court to conduct discovery in
two phases and enter an Order protecting it from class discovery. Docs. 36, 37.
Plaintiff opposes the motions (Docs. 38, 39), and Defendant has filed a reply (Doc.
46). 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 of
discovery into two phases: the merits of Plaintiff’s individual claims and class
discovery. Doc. 36 at 1. Defendant argues that the Court’s decision on the issue of
consent will “likely resolve Plaintiff’s individual claim,” and that bifurcation would
promote judicial economy and allow the parties and the Court to avoid tackling class-
wide discovery issues until the class proceeds, assuming that it will. Id. at 4–8.
Defendant asserts that the law does not require completion of class discovery or
certification before testing the merits of Plaintiff’s claim, and that her claim will likely
fail on summary judgment because she provided written consent to receiving calls. Id.
For this reason, Defendant contends that good cause exists to order bifurcation of
individual and class discovery in this matter. Id. at 9. Similarly, Defendant’s Motion
for Protection from Class Discovery asks the Court to evaluate Plaintiff’s individual
claims on their merits first before allowing class discovery, in the case that they survive
summary judgment. Doc. 37.
Plaintiff opposes bifurcation of discovery. Doc. 38. She argues that the proposed
bifurcation will result in duplicative litigation and discovery. Id. at 2. Furthermore,
Plaintiff argues that Defendant’s consent argument would most efficiently be
evaluated on a class-wide basis, and that granting Defendant’s request would lead to
disputes regarding the boundaries between individual merits and class discovery and
unnecessary proceedings. Id. at 3–5. Finally, Plaintiff argues that bifurcation would
delay class discovery, prejudice the proposed class members, and create the risk that
evidence would be destroyed or lost. Id. at 6. In sum, Plaintiff argues that Defendant
fails to demonstrate a need to change the standard approach to discovery, and that
bifurcation would not streamline the case. Id. at 8.1 Plaintiff objects to Defendant’s
motion for a protective order from class discovery for the same reasons. Doc. 39.
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,
2016 WL 8539815, *2 (M.D. Fla. July 21, 2016) (recommending bifurcation of
1 Plaintiff also argues that the motion should be denied based on Defendant’s failure to
adequately meet and confer on the motions. Doc. 38 at 1 n.1. The Court declines to deny the
motion on this basis, but cautions Defendant to ensure that it complies with Local Rule
3.01(g) moving forward.
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. In short,
the circumstances do not warrant a deviation from this District’s general practice of
disfavoring bifurcation. See Davis, 2022 WL 4553071 at *1. Defendant’s Motion for a
Protective Order from Class Discovery (Doc. 37) is denied for the same reasons.
Accordingly, it is ORDERED:
1. Defendant Modern Brokers of America, LLC’s Motion to Bifurcate
Discovery (Doc. 36) is DENIED.
2. Defendant Modern Brokers of America, LLC’s Motion for Protection from
Class Discovery (Doc. 37) is DENIED.
Charlene Edwards Honeywell
United States District Judge
DONE and ORDERED in Tampa, Florida on June 9, 2023.
Copies furnished to:
Counsel of Record
Unrepresented Parties