‘Boilerplate Arguments’
TCPA Plaintiff Opposes State Farm Request to Stay or Phase Discovery
Telephone Consumer Protection Act defendant State Farm, in arguing discovery should be stayed pending a ruling on its motion to dismiss (see 2302010001), “points to nothing about this case that makes it different than any other case in which a…
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motion to dismiss is pending,” said plaintiff Thomas Gebka’s opposition Tuesday (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago. The class action against State Farm “is even less of a candidate” than normal for a stay, said the opposition. “This district has already denied a nearly-identical motion to dismiss in a separate case where the claims and vicarious liability allegations were virtually identical to those allegations here,” it said. State Farm offers no specifics to support its “boilerplate arguments” that a stay won't prejudice or tactically disadvantage Gebka’s case, said the opposition. Nor could State Farm offer those specifics amid its arguments that involve Gebka’s strategy “that State Farm knows nothing about,” it said: “The request for a stay should therefore be denied.” State Farm’s alternative request for phased discovery to focus on whether a class can be certified “should likewise be denied,” said the opposition. The specific discovery State Farm objects to, and merits discovery generally, “are needed to determine whether common factual and legal issues predominate” in the TCPA case, it said. A stay will “possibly foreclose the putative class members’ claims by needlessly delaying their resolution,” said the opposition. The case involves telemarketing calls made by State Farm’s “subagents,” including third-party vendors hired by State Farm’s agencies or the third-party call centers those vendors used to make the calls, it said. State Farm’s initial discovery disclosures “did not identify the vendors or anyone further downstream,” and State Farm’s agencies objected to providing that information under subpoena, it said. The third parties in question “are most likely to possess or control the indispensable call records,” but they currently have “no duty to preserve evidence,” said the opposition. It compounds the risk of lost evidence that many vendors and call centers “do not keep call records for very long,” it said. That’s especially true after litigation involving the calls begins, “which means the records identifying the class members are likely already being destroyed in the ordinary course,” it said.