United States District Court, D. Kansas
LEORA RILEY, et al., Individually and on behalf of all others similarly situated, Plaintiffs,
PK MANAGEMENT, LLC, et al., Defendants.
MEMORANDUM AND ORDER
J. James U.S. Magistrate Judge
matter is before the Court on Defendants' Motion to
Bifurcate Discovery (ECF No. 118) filed by two Defendants,
Aspen Companies Management, LLC and Central Park Holdings,
LLC, and joined by Defendant PK Management, LLC (ECF No. 119)
and Defendant Central Park Investors, LLC (ECF No. 120).
Defendants seek an order bifurcating discovery, limiting
discovery during Phase I to issues related to class
certification, and deferring merits discovery until Phase II.
Plaintiffs oppose the motion. As set forth below, the Court
will deny the motion.
briefing on Plaintiffs' Motion to Compel Discovery
concerning interrogatories served on Defendants Aspen
Companies Management, LLC (“Aspen”) and Central
Park Holdings, LLC (“CPH”),  Aspen and CPH
asserted this Court had bifurcated discovery and they
objected to answering an interrogatory because it constituted
merits discovery that should be deferred until a final ruling
has been issued on class certification. The Court rejected
the argument because there is no such bifurcation order in
this case. The Court instructed any party who took the
position that this case warrants an order of bifurcation to
file a motion seeking such relief, and all parties would have
an opportunity to be heard. This motion followed.
Court previously noted, Scheduling Orders entered in this
district that call for phased discovery generally arise out
of the parties' agreement that certain discovery is
necessary early in the case. Rarely do the orders require
strict bifurcation. Here, however, Defendants argue the only
way to give meaning to the Phase I Scheduling Order is to
strictly limit discovery to inquiries into the elements of
Fed.R.Civ.P. 23(a). Otherwise, Defendants argue, the issue of
class certification will be delayed.
“concede that some merits-based discovery becomes
necessary to resolve certification issues,
” but offer no suggestion for where or how
the Court should draw the line between permissible and
impermissible discovery. They do, however, point to certain
discovery Plaintiffs seek-financial information, identities
of passive non-parties, and premises issues unrelated to
infestations-as being on the wrong side of the line and
demonstrating the need for bifurcation. Defendants assert
these areas of inquiry have no relevancy to and will slow the
determination of class certification. In addition, Defendants
contend this case will not continue to exist if the class is
not certified, and imply certification is unlikely.
cite two cases in their motion, asserting they stand for the
propositions that the first phase of discovery in class
actions should be limited to the four prerequisites for class
certification found in Rule 23(a), and that merits discovery
delays dealing with class certification issues. However, neither
case takes an absolutist position. Instead, the cases
consider whether discernible lines exist between class
certification and merits discovery and whether bifurcation
would promote efficiency.
contend Defendants make an effective argument against
bifurcation by devoting so much criticism to the merits of
the case that it appears Defendants intend to challenge
certification on the merits. If that is true, Plaintiffs
argue, they should certainly be permitted to conduct merits
discovery to rebut Defendants' challenge.
also disagree that this case will cease if a class is not
certified, pointing out they represent more than 70 current
and former residents of Central Park Towers and will seek to
join those individuals as plaintiffs if the case does not
proceed as a class action. With respect to efficiency,
Plaintiffs contend that bifurcation would create discovery
disputes as the parties disagree on whether a particular
discovery request constitutes certification discovery, merits
discovery, or both.
Court finds that bifurcation is both unnecessary and would
likely lead to a less speedy and inexpensive determination of
this case contrary to Federal Rule of Civil Procedure 1.
Defendants recognize that no workable definition exists for
separating discovery in this case as they urge, and that some
merits-based discovery will indeed be relevant to determining
certification. That is true not only with respect to the four
prerequisites of Rule 23(a), but it becomes even more
apparent when considering that Plaintiffs will also need to
show they satisfy one or more of the types of class actions
maintainable under Rule 23(b). The Court finds any advantage
that bifurcation might have would be outweighed by the
disputes and motion practice concerning where to draw the
line. As Judge Sebelius noted:
Often, however, bifurcating discovery in this manner will be
counterproductive. Discovery relating to “class
issues” is not always distinguishable from other
discovery. Moreover, the key question in class certification
is often the similarity or dissimilarity of the claims of the
representative parties to those of the class members-an
inquiry that may require some discovery on the
“merits” and development of the basic issues. Nor
will discovery into matters affecting other members of the
putative class necessarily be wasted if a class is not
certified, for in many cases this information will be
valuable as circumstantial evidence.
parties have already conducted much discovery in this case,
and it appears the instant motions are a result of Plaintiffs
seeking discovery on a few discreet issues. Denying
Defendants' motion does not mean Defendants will be
without the ability to object to particular discovery
requests. Indeed, Plaintiffs' three pending motions to
compel suggest that has already occurred.
IS THEREFORE ORDERED Defendants' Motion to
Bifurcate Discovery (ECF No. 118) filed by Aspen Companies
Management, LLC and Central Park Holdings, LLC, Defendant PK
Management, LLC's Motion to Join Defendants' Motion
to Bifurcate Discovery (ECF No. 119), and Central Park
Investors, LLC's ...