In Hartley–Culp v. Credit Management Co., 2014 WL 4630852 (M.D.Pa. 2014), Judge Blewitt rejected a TCPA defendant’s request for a stay/bifurcation of discovery.
Defendant CMC seeks the Court to bifurcate discovery into two phases with the first phase limited to the issue of whether Plaintiff expressly consented to receiving calls on her cell phone. Defendant CMC maintains that if it proves Plaintiff provided her express consent, then the calls it placed to her do not violate the TCPA. Defendant CMC then states that if it can show the calls placed to Plaintiff did not violate the TCPA, then Plaintiff will not be able to proceed as the representative of the purported class. In the alternative, Defendant CMC moves the Court to stay all proceedings in this case since it contends that many of Plaintiff’s allegations in her Complaint turn on issues currently pending before the Federal Communication Commission (“FCC”). Defendant CMC states that the FCC has primary jurisdiction to determine the issues raised by Plaintiff in this case.
The District Court rejected Defendant’s argument.
We disagree with Defendant CMC and its contentions in its briefs that discovery at this stage of the case, i.e., before Plaintiff files her Motion for Class Certification, should be limited to the issue of whether its calls to Plaintiff fall within the “prior express consent” exception. As stated, the burden is on the creditor (in this case Defendant CMC) regarding the issue of whether prior express consent was provided. Also, as stated, the burden is on Defendant CMC to demonstrate that it did not use an automated telephone service when it contacted Plaintiff. If Defendant CMC can meet either of its burdens, Defendant CMC will be entitled to summary judgment on Plaintiff’s TCPA claim. On the other hand, if genuine disputes of material fact exist as to whether Defendant obtained Plaintiff’s prior express consent, then Defendant will not be entitled to summary judgment on Plaintiff’s TCPA claim. Wattie–Bey v. Stephen and Michaels Assoc., Inc., 2014 WL 123597, *3. Likewise, if disputed issues of fact remain as to whether Defendant CMC used automated telephone services in its contacts with Plaintiff, then summary judgment will not be appropriate. Id., *6(citations omitted). However, we concur with Plaintiff that “whether or not [Defendant] CMC had [prior express consent] to contact Plaintiff is not a threshold question that must be resolved at this stage, before the parties have had an opportunity to conduct class-wide discovery.” (Doc. 28–1, p. 6, citing Grant v. Capital Mgmt. Servs., L.P., 449 Fed.Appx. 598, 600 (9th Cir.2011) (“ ‘express consent’ is not an element of a TCPA Plaintiff’s prima face case, but rather is an affirmative defense for which the Defendant bears the burden of proof.”). We also agree with Plaintiff that despite Defendant CMC’s contention and its Exhibits, that it would not be unduly burdensome on Defendant at this point of the case to respond to Plaintiff’s discovery requests, including requests regarding the putative class action. Also, we find prejudice to Plaintiff if discovery was bifurcated as Plaintiff maintains. As Plaintiff points out, she “primarily seeks documents that are ordinarily maintained as business records, and to the extent that CMC will be burdened by having to produce any such documents, CMC can respond with the appropriate objections and substantiate them during the meet and confer process.” (Doc. 28–1, p. 5). Defendant CMC will still be able to conduct any discovery it deems necessary to try and meet its burden as to its affirmative defenses, and it will be able to file a dispositive motion at the conclusion of discovery. Moreover, we agree with Plaintiff that she should have the benefit of discovery before she has to file her Motion for Class Certification, especially since Plaintiff has the burden of class certification. See Hawk Valley, Inc. v. Taylor, ––– F.R.D. ––––, 2014 WL1302097 (E.D.Pa. March 31, 2014) (citation omitted) (court granted Plaintiff’s motion for class certification in a TCPA unsolicited-fax case since it found, in part, common issues of law and fact predominated). Finally, we concur with Plaintiff that bifurcation of discovery in this case will increase litigation expenses by protracting the discovery period and by duplicating the discovery process, including the depositions.