TRENDING: Another Court Bifurcates Discovery in TCPA Class Action Suit–This Time All On Its Own

Quick but important one for you today TCPAWorld.

In Pavela v. Paul Moss Insurance, 2023 WL 3728199 (N.D. Oh. May 30, 2023) the Defendant moved to dismiss a case arguing that it did not make the calls at issue.

The Court refused to dismiss the case outright at the pleadings stage–that’s a very rare phenomenon pulled off by Troutman Amin, LLP and very few others–but it did grant bifurcation of discovery to force the parties to focus on the individual issues first:

The Court finds that bifurcation of discovery to first address the individual liability claims, and then to entertain possible summary judgment motion practice on Plaintiffs’ individual claims, prior to class action discovery, is appropriate under FED. R. CIV. P. 42(b). The Court also finds that the parties should be given an opportunity to complete discovery on Plaintiffs’ individual liability claims prior to any summary judgment motion practice that may be initiated on those individual claims at a later date.

What’s fascinating here is that the Court appears to have bifurcated discovery sua sponte–i.e. without being asked to do so. Defendant did not actually move to bifurcate discovery, it moved to dismiss the case. It lost, but the Court went ahead and gave it an opportunity to limit the case to the individual issues before moving into class discovery.

I have to say this is GREAT work by the Court–the Hon. Donald Nugent for anyone wondering who the judge was. Forcing a defendant into class discovery in a TCPA suit means hundreds of thousands of dollars in expense–and for no reason where a merits-based defense exists. I LOVE to see the Court’s work here, and I love that this is becoming a trend.

If you are facing a TCPA class action remember to seek bifurcated discovery anytime you have an individual defense to the class rep’s claim. (Be cautious, of course, about raising any classwide substantive issues pre-certification lest you waive one-way intervention protections.) Always happy to discuss.

Editor’s Note: Quick update for everyone. Counsel for Paul Moss reached out and advised they “had requested bifurcation in a joint report and then the parties discussed it in the case management conference, so it was not sua sponte.” So there you go!



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