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Cunningham v. Shore Funding Solutions Inc.

United States District Court, E.D. New York

October 28, 2017

CRAIG CUNNINGHAM, Individually and on behalf of all others similarly situated, Plaintiff,

          BELLIN & ASSOCIATES, LLC Attorneys for the Plaintiff Aytan Y. Bellin, Esq., Of Counsel

          LAW OFFICES OF CLIFFORD B. OLSHAKER Attorneys for Defendant Clifford B. Olshaker, Esq., Of Counsel



         Craig Cunningham (“Cunningham” or the “Plaintiff”) commenced this putative class action against the Defendant, Shore Funding Solutions Inc. (“SFS” or the “Defendant”) alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. §§ 227, et seq. This action is based on the Defendant's alleged use of an automatic telephone dialing system to deliver text messages to the Plaintiff's phone, without the prior express consent of the Plaintiff. Presently before the Court is a motion by the Plaintiff for class certification, pursuant to Rule 23 of the Federal Rules of Civil Procedure (“Rule” or “Fed R. Civ. P.”) requesting that the Court allow the instant motion to remain pending until after the conclusion of discovery, or alternatively, to certify the class. For the following reasons, the motion is denied without prejudice to renewal following discovery.


         On April 7, 2017, the Plaintiff commenced this action against the Defendant by filing a putative class action complaint. That same day, the Plaintiff filed the present motion, seeking a stay of the decision on the motion for class certification, or alternatively, for a ruling certifying the class.

         On June 30, 2017, the Defendant answered the complaint.

         The parties held their initial conference before Magistrate Judge A. Kathleen Tomlinson on August 2, 2017 and the discovery status conference was scheduled for December 11, 2017.

         The Defendant has indicated that it will seek summary judgment, arguing that the Plaintiff lacks Article III standing. Pursuant to this Court's individual rules, a pre-motion conference is currently scheduled for November 9, 2017.


         “In determining whether class certification is appropriate, a district court must first ascertain whether the claims meet the preconditions of Rule 23(a).” Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201 (2d Cir. 2008). Rule 23(a) requires the Plaintiff to establish the following four conditions: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the classes; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). After establishing Rule 23(a)'s four preconditions, the claims must also satisfy one of the scenarios in Rule 23(b)(1)-(3). Fed.R.Civ.P. 23(b). “The party seeking class certification bears the burden of establishing by a preponderance of the evidence that each of Rule 23's requirements has been met.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010) (internal citations omitted).

         Granting a motion for class certification “is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (internal citations and quotations omitted). Although such a decision is to be made as early as practicable, Fed.R.Civ.P. 23(c)(1)(A), “this does not mandate precipitous action.” Chateau de Ville Prods., Inc. v. Trans-Witmark Music Library, Inc., 586 F.2d 962, 966 (2d Cir. 1978).

         In the instant case, the Court is unable to conduct the “rigorous analysis” required by Wal-Mart Stores, Inc., as this motion was filed contemporaneously with the class action complaint and prior to any discovery or the filing of an answer. Even at the present juncture, there has been little discovery that has taken place.

         As the Plaintiff has already conceded by his requested relief, more discovery is needed on factual issues associated to class certification. Neither party's interests are properly served by determining class certification prior to the completion of the discovery process. See Physicians Healthsource, Inc. v. Purdue Pharma L.P., No. 3:12-cv-1208, 2013 WL 4782378, at *1 (D. Conn. Sept. 6, 2013) (“Here, such ‘rigorous analysis' is impracticable, at least on the current record, because the plaintiff filed its motion for class certification prior to discovery.”). “That being said, there is nothing to be gained by formally staying [the Plaintiff]'s current, underdeveloped motion while the court awaits the filing of a later, fully-developed motion.” 3081 Main Street, LLC v. Business Owners Liability Team LLC, No. ...

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