Wright v. GreenSky Management Company, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-62441-BLOOM/Valle

ALEXISS WRIGHT,

an individual, on behalf of herself and others

similarly situated,

Plaintiff,

v.

GREENSKY MANAGEMENT COMPANY, LLC,

GREENSKY, INC., GREENSKY HOLDINGS, LLC,

and GREENSKY, LLC,

Defendants.

____________________________________________/

ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS

OR TO PARTIALLY DENY CLASS CERTIFICATION

THIS CAUSE is before the Court upon Defendants GreenSky, Inc.’s, GreenSky, LLC’s,

GreenSky Holdings, LLC’s, and GreenSky Management Company, LLC’s (collectively,

“Defendants” or “Greensky”) Motion for Judgment on the Pleadings as to Class Allegations

Subsequent to October 26, 2016 or, Alternatively, to Partially Deny Certification as to Any Class

Subsequent to October 26, 2016, ECF No. [101] (“Motion”). Plaintiffs Alexiss Wright (“Wright”),

Jerrick Buck, and Yvonne Buck (collectively, the “Bucks”) filed a Response in Opposition, ECF

No. [106] (“Response”), to which Defendants filed a Reply, ECF No. [108] (“Reply”). The Court

has carefully considered the Motion, the record in this case, the applicable law, and is otherwise

fully advised. For the reasons set forth below, the Motion is denied.

I. BACKGROUND

On July 17, 2020, Wright initiated this class action against Defendants in the Circuit Court

of the Seventeenth Judicial Circuit in and for Broward County, Florida. See ECF No. [1-2] at 5-

37. On December 1, 2020, Defendants removed the above-styled case to this Court, alleging

jurisdiction under the Class Action Fairness Act (“CAFA”) of 28 U.S.C. § 1332(d). ECF No. [1]

(“Notice”). On December 16, 2020, Wright filed a First Amended Class Action Complaint, ECF

No. [12] (“Complaint”), which added the Bucks and Maria C. Poza (“Poza”) as named Plaintiffs.

The Complaint asserts the following three counts against Defendants: Count I – Violations of

Florida’s Loan Broker Law (“FLBL”) (Fla. Stat. § 687.14, et seq.); Count II – Violations of

Florida’s Credit Service Organizations Act (“CSOA”) (Fla. Stat. § 817.7001, et seq.); and Count

III – Injunctive Relief. See generally id.

According to the Complaint, Defendants are financial technology companies that allow

various types of merchants to apply for point-of-sale loans on behalf of their customers through

Defendants’ mobile application that streamlines the entire lending process. See ECF No. [12]

¶¶ 25, 30. Defendants fund these loans through partnerships with lending institutions that serve as

the lenders. See id. ¶ 27. Defendants orchestrate the loan origination process from the initial loan

application through funding, and after brokering the loan, Defendants act as the loan servicer. See

id. ¶ 87.

In or about July 2016, the Bucks purchased a solar system financed by a $25,000.00

Greensky loan. Id. ¶¶ 118, 119, 123. Unbeknownst to the Bucks, Greensky took a merchant fee of

approximately 13% of the principal. Id. ¶¶ 124, 126. The Bucks repaid the loan entirely within the

first year and unknowingly paid some or all of the undisclosed merchant fee. Id. ¶¶ 127, 128. In

June 2016, Wright purchased an air-conditioning system financed by a $9,522.00 Greensky loan.

Id. ¶ 101. Unbeknownst to Wright, Greensky took a merchant fee of approximately 16% of the

principal. Id. ¶ 100. Wright repaid the loan in late 2018 and unknowingly paid some or all of the

undisclosed merchant fee. Id. ¶¶ 104, 105. In November 2016, Poza contracted with Paradise

Exteriors to purchase and install storm shutters, which were financed by a Greensky loan. Id.

¶¶ 107, 108. Poza unknowingly paid some or all of Greensky’s merchant fee of approximately

6.75% of the principal. Id. ¶¶ 112, 115.

The claims asserted in the Complaint are premised on the allegation that Defendants

concealed the nature and amount of the merchant fees charged to consumers and failed to comply

with loan broker disclosure requirements, in violation of the FLBL. Id. ¶¶ 148-50. The Complaint

also alleges that Defendants acted as a credit service organization (“CSO”) without a surety bond,

accepted valuable consideration for referring customers to lenders who were offering substantially

the same loan terms to the general public, and made false or misleading statements in violation of

the CSOA. Id. ¶¶ 161-65, 167-68. On June 14, 2021, the Court directed Defendants and Poza to

arbitration pursuant to an arbitration provision in Poza’s loan documents. See ECF No. [48].

However, the loan documents for the remaining named Plaintiffs Wright and the Bucks

(collectively, “Plaintiffs”) do not have a similar arbitration provision. See ECF Nos. [56] at 7 n.1,

[23-1], [24-1].

Defendants now move for judgment on the pleadings as to Plaintiffs’ class allegations

based on loans obtained subsequent to October 26, 2016. See ECF No. [101]. Defendants argue

that the Court should dismiss the class allegations after that date, or alternatively deny certification

as to class allegations after that date, because Greensky’s loans after that date had arbitration

provisions, similar to the one in Poza’s loan documents and unlike Plaintiffs’ loan documents. See

id. at 2-3. Plaintiffs respond that there is nothing in the pleadings or elsewhere in the record to

justify entry of judgment on the pleadings, and Defendants’ alternative argument that the Court

deny certification pursuant to Rule 23 is premature and without merit. See ECF No. [106].

Defendants reply that Defendants’ sworn discovery responses indicate that every Greensky loan

after October 26, 2016 contained an arbitration provision. See ECF No. [108] at 5 (citing ECF No.

[97-2] at 2-3).

II. LEGAL STANDARD

A. Judgment on the Pleadings

“After the pleadings are closed — but early enough not to delay trial — a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings is appropriate

where there are no material facts in dispute and the moving party is entitled to judgment as a matter

of law.” Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001); see also Perez

v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014); Palmer & Cay, Inc. v. Marsh &

McLennan Cos., 404 F.3d 1297, 1303 (11th Cir. 2005); Riccard v. Prudential Ins. Co., 307 F.3d

1277, 1291 (11th Cir. 2002). “A motion for judgment on the pleadings admits the plaintiff’s

factual allegations and impels the district court to reach a legal conclusion based on those

facts.” Gachette v. Axis Surplus Ins. Co., No. 19-cv-23680, 2020 WL 2850587, at *1 (S.D. Fla.

Apr. 1, 2020) (quoting Dozier v. Prof’l Found. for Heath Care, Inc., 944 F.2d 814, 816 (11th Cir.

1991)).

“[F]ederal courts are unwilling to grant a judgment under Rule 12(c) unless it is clear that

the merits of the controversy can be fairly and fully decided in this summary manner.” Pete Vicari

Gen. Contractor LLC v. Ohio Cas. Ins. Co., No. 17-23733-CIV, 2018 WL 6308695, at *1 (S.D.

Fla. Sept. 27, 2018) (citation omitted). However, “[i]f it is clear from the pleadings that the plaintiff

is not entitled to relief under any set of facts consistent with the complaint, the district court should

dismiss the complaint.” King v. Akima Glob. Servs., LLC, 775 F. App’x 617, 620 (11th Cir. 2019)

(citing Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 2002)); cf. United States v. Khan, No. 3:17-

cv-965-J-PDB, 2018 WL 6308678, at *1 (M.D. Fla. Sept. 26, 2018) (“A court must deny a motion

for judgment on the pleadings if a ‘comparison of the averments in the competing pleadings

reveals a material dispute of fact.’” (quoting Perez, 774 F.3d at 1335)).

“A motion for judgment on the pleadings is governed by the same standard as a motion to

dismiss under Fed. R. Civ. P. 12(b)(6).” King, 775 F. App’x at 620. “In determining whether a

party is entitled to judgment on the pleadings, [courts] accept as true all material facts alleged in

the non-moving party’s pleading, and [] view those facts in the light most favorable to the non-

moving party.” Perez, 774 F.3d at 1335 (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367,

1370 (11th Cir. 1998)). A complaint must provide “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule

8(a)(2) “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”).

Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). “To survive a motion to dismiss a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Id. (quoting Twombly, 550 U.S. at 570).

B. Class Certification

District courts have broad discretion in deciding whether to certify a class. Washington v.

Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). To certify a class

action, the putative class must satisfy “the four requirements listed in Rule 23(a), and the

requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v. Vital Pharm., Inc., 621 F. App’x

945, 946 (11th Cir. 2015) (citing Little v. T–Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir.

2012)); see also Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he

putative class must meet each of the four requirements specified in [Rule] 23(a), as well as at least

one of the three requirements set forth in [Rule] 23(b).”); Rutstein v. Avis Rent-A-Car Sys., Inc.,

211 F.3d 1228, 1233 (11th Cir. 2000) (“A class action may be maintained only when it satisfies

all of the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of

Rule 23(b).” (quoting Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997)).

“Under Rule 23(a), every putative class first must satisfy the prerequisites of numerosity,

commonality, typicality, and adequacy of representation.” Vega v. T–Mobile USA, Inc., 564 F.3d

1256, 1265 (11th Cir. 2009) (quoting Fed. R. Civ. P. 23(a); Valley Drug Co. v. Geneva Pharms.,

Inc., 350 F.3d 1181, 1187–88 (11th Cir. 2003)) (internal quotation marks omitted). Under Rule

23(b)(2), class certification is appropriate if “the party opposing the class has acted or refused to

act on grounds that apply generally to the class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

“The burden of establishing these requirements is on the plaintiff who seeks to certify the

suit as a class action.” Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997); see also

Rutstein, 211 F.3d at 1233. The moving party “must affirmatively demonstrate his compliance”

with the class certification requirements. Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)

(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)). That is, “a party must not

only be prepared to prove that there are in fact sufficiently numerous parties, common questions

of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule

23(a) [but also] satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id.

(emphasis in original). “A district court must conduct a rigorous analysis of the Rule 23

prerequisites before certifying a class.” Vega, 564 F.3d at 1266 (quoting Castano v. Am. Tobacco

Co., 84 F.3d 734, 740 (5th Cir. 1996)).

III. DISCUSSION

A. Motion for Judgment on the Pleadings

The Court first addresses Defendants’ argument that they are entitled to judgment on the

pleadings. Defendants move for judgment on the pleadings as to Plaintiffs’ class allegations based

on loans obtained subsequent to October 26, 2016. See ECF No. [101]. Defendants note that

Plaintiffs purport to represent a putative class defined as “[a]ll persons who secured or made

payments on a GreenSky-program loan in Florida between July 17, 2016, and the present.” ECF

No. [12] ¶ 133. However, since the parties’ pleadings, the Court entered an Order compelling Poza

to arbitration pursuant to the arbitration provision in her loan documents. See ECF No. [48]. The

Court further dismissed Plaintiffs’ claim for injunctive relief and determined that Plaintiffs could

not seek injunctive relief on behalf of the proposed class. See ECF No. [56] at 17. Defendants also

contend that any loan agreement after October 26, 2016 contained a mandatory arbitration

provision similar to Poza’s arbitration provision. See ECF No. [101] at 2. As such, Defendants

argue that Plaintiffs do not have standing to represent putative class members who obtained loans

after October 26, 2016 and agreed to the arbitration provision. See id. at 7-10 (citing In re Checking

Account Overdraft Lit., 780 F.3d 1031 (11th Cir. 2015)). Defendants also contend that even if

Plaintiffs have standing, Plaintiffs cannot satisfy the Rule 23 standards as a matter of law. See id.

at 10-18. As such, Defendants submit that the Court should dismiss Plaintiffs’ class allegations

based on any loans obtained after October 26, 2016.

Plaintiffs respond that nothing in the pleadings supports an entry of judgment on the

pleadings. See ECF No. [106] at 7. Critically, nothing in the pleadings supports Defendants’

contention that every putative class member who received a Greensky loan after October 26, 2016

agreed to an arbitration provision. Plaintiffs argue that, even if the Court were to look beyond the

pleadings, nothing in the record supports Defendants’ contention that every putative class member

who received a Greensky loan after October 26, 2016 agreed to an arbitration provision. See id. at

8. Plaintiffs further contend that Defendants’ substantive arguments that Plaintiffs lack standing

or that Plaintiffs cannot meet the Rule 23 standards are unavailing. See id. at 11-20.

Defendants reply that they provided discovery responses, under oath, that “every

Installment Loan Agreement GreenSky has serviced through the GreenSky Program after October

26, 2016, has contained an arbitration provision and accompanying class action waiver provision.”

ECF No. [108] at 5 (quoting ECF No. [97-2] at 2-3). Defendants rely on Bultemeyer v. CenturyLink

Inc., 2022 WL 1046292, *7 (D. Ariz. Apr. 7, 2022), for the proposition that sworn testimony is

sufficient for the purposes of granting a motion for judgment on the pleadings. See ECF No. [108]

at 5. Defendants further argue that the undisputed fact that Plaintiffs have not signed arbitration

provisions and that putative class members have signed arbitration provisions defeats class

certification. See id. at 5-6 (citing Valencia v. VF Outdoor, LLC, 2021 WL 5154161, *3 (C.D. Cal.

Nov. 5, 2021), and Campanelli v. Image First Health. Laundry Spec., Inc., 2018 WL 6727825, *8

(N.D. Cal. Dec. 21, 2018)).

The Court agrees with Plaintiffs. The Court first reiterates the standard for addressing a

motion for judgment on the pleadings. “In determining whether a party is entitled to judgment on

the pleadings, [courts] accept as true all material facts alleged in the non-moving party’s pleading,

and [] view those facts in the light most favorable to the non-moving party.” Perez, 774 F.3d at

1335 (citing Hawthorne, 140 F.3d at 1370). Further, “on a motion for judgment on the pleadings,

documents that are not a part of the pleadings may be considered, as long as they are central to the

claim at issue and their authenticity is undisputed.” Id. at 1340 n.12.1 In this case, Defendants do

not dispute Plaintiffs’ argument that nothing in the pleadings entitle Defendants to judgment on

the pleadings. See generally ECF No. [108]. The operative question is whether the Court can

consider record evidence that Defendants set forth, namely Defendants’ Supplemental and

1 Plaintiffs appear to rely on a case from the Western District of Missouri for the proposition that the Court

cannot consider any filing other than the pleadings themselves. See ECF No. [106] at 8 (citing Weigand v.

Maxim Healthcare Servs., Inc., No. 2:15-CV-04215-NKL, 2016 WL 127595, at *1 (W.D. Mo. Jan. 11,

Amended Objections and Responses of Defendants Greensky, Inc., Greensky, LLC, Greensky

Holdings, LLC, and Greensky Management Company, LLC to Plaintiffs’ First Set of

Interrogatories, ECF No. [97-2] (“Defendants’ Responses”). Applying the standard set forth in

Perez, the Court is not persuaded that Defendants’ self-serving Responses are central to Plaintiffs’

class allegations. Cf. Perez, 774 F.3d at 1340 n.12 (noting that a business account agreement was

central to the defendant’s counterclaims, in part because it was referenced in the counterclaims).

Plaintiffs’ class allegations do not depend on the existence of Defendants’ Responses nor were

Defendants’ Responses referenced in Plaintiffs’ Complaint. Defendants notably do not argue that

Defendants’ Responses are central to Plaintiffs’ class allegations. As such, the Court cannot

consider Defendants’ Responses.

To the extent that Defendants rely on three cases from outside the Eleventh Circuit in their

Reply, Bultemeyer v. CenturyLink Inc., No. CV-14-02530, 2022 WL 1046292, *7 (D. Ariz. Apr.

7, 2022), Valencia v. VF Outdoor, LLC, No. 1:20-cv-01795, 2021 WL 5154161, *3 (C.D. Cal.

Nov. 5, 2021), and Campanelli v. Image First Health. Laundry Spec., Inc., No. 15-cv-04456, 2018

WL 6727825, *8 (N.D. Cal. Dec 21, 2018), the Court is not persuaded. In Bultemeyer and

Valencia, the respective courts were addressing a motion to certify or deny certification of a class.

As such, the cases do not establish that the Court can consider documents that are not central to

the parties’ pleadings in deciding a motion for judgment on the pleadings. In Campanelli, the court

was addressing a partial motion for summary judgment. As such, Campanelli also does not

establish that the Court can consider documents that are not central to the parties’ pleadings in

deciding a motion for judgment on the pleadings.2

2 In their Motion, Defendants briefly cite Hill v. T-Mobile USA, Inc., No. 2:09–CV–1827, 2011 WL

10958888, *6 (N.D. Ala. May 16, 2011), but the court in that case was also addressing a motion for class

certification. As such, that case offers no guidance as to whether the Court can consider documents that are

Thus, upon review, nothing in the pleadings or the record evidence – that is central to

Plaintiffs’ class allegations and whose authenticity is undisputed – supports Defendants’

contention that every putative class member who received a Greensky loan after October 26, 2016

agreed to an arbitration provision. Further, although Defendants rely on the Court’s previous

Orders, ECF Nos. [48], [56], neither Order establishes the key contention that every putative class

member who received a Greensky loan after October 26, 2016 agreed to an arbitration provision.

Without establishing this key contention through the pleadings or filings that are central to

Plaintiffs’ class allegations, the Court cannot find as a matter of law that Defendants are entitled

to judgment on the pleadings.3

B. Motion to Deny Class Certification

The Court now addresses Defendants’ alternative request that the Court partially deny

certification of class allegations based on loans obtained after October 26, 2016. Defendants style

their alternative request as a motion to deny class certification, but the alternative request is

premised on the same arguments as above. See ECF No. [101]. To reiterate, Defendants maintain

that Plaintiffs have no standing to represent any borrowers who agreed to arbitrate their disputes,

and even if Plaintiffs had standing, they cannot satisfy the Rule 23 standards as a matter of law.

Plaintiffs respond that Defendants’ alternative request to partially deny class certification

is premature and without merit. See ECF No. [106]. Plaintiffs first submit that “motions to deny

class certification are not appropriate where no motion for class certification is pending.” Id. at 2;

see also id. at 5 n.1 (citing Doty v. ADT, LLC, No. 20-60972-CIV, 2021 WL 2580223, at *1 (S.D.

Fla. Apr. 1, 2021); Jones v. Fiorella Ins. Agency, Inc., No. 20-14105-CIV, 2020 WL 7485193, at

*1 (S.D. Fla. Nov. 30, 2020)). In addition, Plaintiffs argue that Defendants cannot invoke

3 Given the Court’s determination, the Court need not address Defendants’ remaining arguments regarding

arbitration on behalf of putative class members who have not yet appeared in the case. Plaintiffs

contend that “Article III’s jurisdictional limitations preclude[] the District Court from entertaining

[a defendant’s] conditional motion[] to dismiss those members’ claims as subject to arbitration.”

Id. at 12 (quoting Checking Account Overdraft, 780 F.3d at 1037). Further, “[c]ertification of a

class is the critical act which reifies the unnamed class members and, critically, renders them

subject to the court’s power.” Id. Without a certified class, “there is no justiciable controversy

between [the defendant] and the unnamed putative class members.” Id. Plaintiffs thus argue that

Defendants must wait until Plaintiffs have filed a Motion for Class Certification to oppose class

certification and must wait until the class has been certified to compel arbitration against class

members who have agreed to arbitration provisions. See ECF No. [106] at 2, 10-11.

Defendants reply that Plaintiffs are under the mistaken belief that Defendants are invoking

arbitration for the putative class members. See ECF No. [108] at 3. Defendants argue that their

Motion simply seeks to deny class certification, not invoke the arbitration provisions on behalf of

putative class members. See id. Further, Defendants argue that Plaintiffs are incorrect in arguing

that the Court cannot consider a motion to deny class certification and that Defendants must raise

arguments against class certification only in response to a motion for class certification. See id. at

6.

The Court agrees with Defendants to the extent that their Motion seeks to deny class

certification, not invoke the putative class members’ arbitration provisions. See ECF No. [101] at

2 (seeking to “Deny Certification as to any class allegations”). The Court also agrees with

Defendants to the extent that the Court can consider a motion to deny class certification before a

motion for class certification is filed. The Court finds instructive Turner v. Food Corp., No. 08-

61042-CIV, 2009 WL 10668616, at *2 (S.D. Fla. Feb. 3, 2009), which Defendants cite. In Turner,

the court stated in relevant part:

[t]he Court notes that the traditional course for class action litigation is for the

plaintiff to move for certification of the class, rather than a defendant preemptively

moving to preclude certification. However, Fed. R. Civ. P. 23(c) requires a court to

determine by order whether to certify the action as a class action ‘at an early

practicable time after a person sues or is sued as a class representative.’ It does not

expressly require a plaintiff to move for certification.

Id. (citing Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 674 (9th Cir. 1975) (affirming

the district court’s grant of the defendant’s motion disallowing the case to proceed as a class

action); Steinbeck v. Dollar Thrifty Auto. Group, Inc., 2008 WL 4378570 *2 (N.D. Okla. 2008)

(noting that “a defendant may properly move to deny class certification prior to a plaintiff filing a

motion for class certification”); Vinole v. Countrywide Home Loans, Inc., 246 F.R.D. 637, 639

(S.D. Cal. 2007) (“Rule 23 . . . does not preclude a defendant from bringing [] a motion [to deny

class certification]”); Chevron USA, Inc. v. Vermilion Parish Sch. Bd., 215 F.R.D. 511, 515-16

(W.D. La 2003), aff’d at 377 F.3d 459, 464 (5th Cir. 2004)). Furthermore, under Rule 23(c)(1),

“[t]he trial court has an independent obligation to decide whether an action was properly brought

as a class action, even where neither party moves for a ruling on class certification.” Martinez-

Mendoza v. Champion Int’l Corp., 340 F.3d 1200, 1216 n.37 (11th Cir. 2003) (quoting McGowan

v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981)). As such, Defendants’

alternative request to partially deny class certification is not premature.4

4 Plaintiffs’ reliance on Doty v. ADT, LLC, No. 20-60972-CIV, 2021 WL 2580223, at *1 (S.D. Fla. Apr. 1,

2021), and Jones v. Fiorella Ins. Agency, Inc., No. 20-14105-CIV, 2020 WL 7485193, at *1 (S.D. Fla. Nov.

30, 2020), for the proposition that a defendant cannot file a motion to deny class certification before a

motion for class certification is filed, is unavailing. In Doty, the court had expressly stated in its scheduling

order that the defendant could raise all grounds for denying class certification in its response to plaintiff’s

motion to certify class, indicating that “competing motions for and against class certification are neither

necessary nor welcome.” 2021 WL 2580223, at *1. Here, in contrast, the Court has not entered a similar

order preemptively denying Defendants the opportunity to file a motion to deny class certification. In Jones,

the court denied the motion to deny class certification as moot because the plaintiff had filed a competing

motion for class certification. See 2020 WL 7485193, at *3. The court in Jones did not expressly forbid the

filing of a motion to deny class certification. See id. In contrast, Plaintiffs have not filed a Motion for Class

Certification, and as such, the Court has no reason to deny Defendants’ Motion as moot. Finally, “[d]istrict

courts have unquestionable authority to control their own dockets. This authority includes broad discretion

in deciding how best to manage the cases before them.” Smith v. Psychiatric Sols., Inc., 750 F.3d 1253,

However, the Court is not persuaded by the merits of Defendants’ arguments. As the Court

stated above, Defendants’ arguments rely on the key contention that all loan agreements after

October 26, 2016 contained an arbitration provision. In support, Defendants only cite, in their

Reply, a single self-serving response to Plaintiffs’ interrogatories in Defendants’ Responses. See

ECF No. [108] at 5 (citing ECF No. [97-2] at 2-3). The Court does not consider the self-serving

response to be sufficient in establishing that the class should not be certified, especially before the

close of class certification discovery. The Court notes that Rule 23 requires a “rigorous analysis”

or a “fact-dependent inquiry” based on a developed record. Vega, 564 F.3d at 1266; Shamblin v.

Obama For Am., No. 8:13-CV-2428-T-33TBM, 2014 WL 631931, at *2 (M.D. Fla. Feb. 18, 2014).

Thus, while the Court has considered Defendants’ request to deny class certification at this stage,

the Court determines that Defendants’ arguments are unpersuasive. The Court is willing to address

the arguments again, should the need arise at the class certification phase, after Plaintiffs have had

the benefit of class certification discovery and filed a Motion for Class Certification in keeping

with the Court’s Scheduling Order, ECF No. [81]. To the extent that Defendants’ Motion was

motivated by concerns regarding the burden of additional discovery, see ECF No. [106] at 3, the

Court notes that the Scheduling Order specifically contemplated such concerns and bifurcated the

class certification discovery and general discovery in order to minimize the burden of discovery

to the extent possible. See ECF No. [81] at 2.5

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [101], is

DENIED.

the Court exercises its discretion to consider the instant Motion before Plaintiffs’ Motion for Class

Certification has been filed.

5 As before, given the Court’s determination, the Court need not address Defendants’ remaining arguments

Case No. 20-cv-62441-BLOOM/Valle

DONE AND ORDERED in Chambers at Miami, Florida, on May 27, 2022.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

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