United States District Court, E.D. New York
CRAIG CUNNINGHAM, Individually and on behalf of all others similarly situated, Plaintiff,
SHORE FUNDING SOLUTIONS INC, Defendant.
& ASSOCIATES, LLC Attorneys for the Plaintiff Aytan Y.
Bellin, Esq., Of Counsel
OFFICES OF CLIFFORD B. OLSHAKER Attorneys for Defendant
Clifford B. Olshaker, Esq., Of Counsel
MEMORANDUM OF DECISION & ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE.
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
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
30, 2017, the Defendant answered the complaint.
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.
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.
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).
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
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.
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,