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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

Case No.: 0:20-cv-61152-AHS

 

RYAN SHINN, 

 Plaintiff, 

v. 

VAN DYK MORTGAGE CORPORATION, 

 Defendant. 

__________________________________________/

JOINT PLANNING & SCHEDULING REPORT 

Pursuant to Fed. R. Civ. P. 26(f) and Local Rule 16.1.B of the United States District 

Court for the Southern District of Florida, by and through the undersigned counsel, Plaintiff 

RYAN SHINN and Defendant VANDYK MORTGAGE CORPORATION (collectively, the 

“Parties”), hereby file this Joint Scheduling Report. 

[REMINDER OF PAGE INTENTIONALLY LEFT BLANK] 

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FED. R. CIV. P. 26(F)(3) DISCOVERY PLAN 

(A) What changes should be made in the timing, form, or requirement for disclosures 

under Rule 26(a), including a statement of when initial disclosures were made or will 

be made: 

The Parties do not believe any changes should be made to required disclosures. The parties 

agree to serve initial disclosure by 07-17-2020.

(B) The subjects on when discovery may be needed, when discovery should be completed, 

and when discovery should be conducted in phases or be limited to or focused on 

particular issues: 

The Parties do not agree as to the completion of discovery or phasing of discovery, and 

therefore respectfully submit the following for the Court’s consideration. 

Plaintiff’s Position: Plaintiff does not believe discovery should be conducted in phases 

or limited to particular issues. Courts routinely reject requests to phase discovery because 

of the risks of prolonging litigation, increasing expenses, and duplicating and delaying 

discovery. See Lakeland Reg’l Med. Ctr., Inc. v. Astellas US, LLC, 2011 U.S. Dist. LEXIS 

16684, *4 (M.D. Fla. 2011) (denying motion to phase discovery and finding “the line 

between ‘class issues’ and ‘merits issues’ is practically difficult, if not impossible, to 

determine.”); Nelson v. United States Steel Corp., 709 F.2d 675, 679 (11th Cir. 1983) 

(recognizing that “evidence relevant to the commonality requirement ... is often 

intertwined with the merits”); Brown v. Electrolux Home Prods., 817 F.3d 1225, 1234 

(11th Cir. 2016) (“rigorous analysis [of class certification] will frequently entail overlap 

with the merits”); Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432 (2013) (“the class 

determination generally involves considerations that are enmeshed in the factual and legal 

issues comprising the plaintiff's cause of action.”); Griffith v. Landry’s, Inc., 2015 U.S. 

Dist. LEXIS 138291, *3 (M.D. Fla. 2015) (ruling that “issues related to class certification 

and the merits of Plaintiffs' case are inextricably intertwined and that bifurcated discovery 

was inappropriate under the circumstances.”); Lakeland Reg’l Med. Ctr., Inc., 2011 U.S. 

Dist. LEXIS 16684, at *5-6 (M.D. Fla. Feb. 7, 2011) (“phased discovery will unnecessarily 

prolong this litigation and increase the expense involved for both sides, ... and lead to 

duplicative and delayed discovery”); Cabrera v. Gov’t Emples. Ins. Co., 2014 U.S. Dist. 

LEXIS 90810, at *22-23 (S.D. Fla. July 3, 2014) (“bifurcation will result in duplication of 

efforts and needless line-drawing dispute”); Hines v. Overstock.com, Inc., 2010 U.S. Dist. 

LEXIS 70205, at 3 (E.D.N.Y. July 13, 2010) (“courts in this and other circuits have 

recognized that where discovery relating to class issues overlaps substantially with merits 

discovery, bifurcation will result in duplication of efforts and needless line-drawing 

disputes.”); Karhu v. Vital Pharms., Inc., 2013 U.S. Dist. LEXIS 116380, at *2-3 (S.D. 

Fla. Aug. 16, 2013) (denying motion to bifurcate discovery); Drury v. Countrywide Home 

Loans, Inc., 2008 U.S. Dist. LEXIS 37713, *5 (M.D. Fla 2008) (“as Plaintiffs have alleged 

a class action cause of action, there is no compelling reason to depart from the usual course 

and prevent Plaintiffs from engaging in class-related discovery at this point. Bifurcation in 

these circumstances serves no point but to further delay the case.”). 

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Particularly, in the TCPA class action context, courts have refused to bifurcate discovery 

based on the relevant factors. See, e.g., True Health Chiropractic, Inc. v. McKesson Corp., 

No. 13-cv-2219-JST, 2015 U.S. Dist. LEXIS 7015, 2015 WL 273188, at *2-3 (N.D. Cal. 

Jan. 20, 2015) (denying motion to bifurcate in a TCPA case where the court found: (1) a 

likelihood of overlap between class and individual discovery; (2) that bifurcation would 

result in a delay in filing motions for certification; and (3) the potential for complication of 

issues caused by disputes and subsequent motions as to what discovery relates to the class, 

as opposed to the named plaintiffs); Hines v. Overstock.com, Inc., No. 09-CV-991, 2010 

U.S. Dist. LEXIS 70205, 2010 WL 2775921, at *1 (E.D.N.Y. July 13, 2010) (“[W]here 

discovery relating to class issues overlaps substantially with merits discovery, bifurcation 

will result in duplication of efforts and needless line-drawing disputes.”). If granted, 

Defendant’s request for bifurcation will only serve to delay this case and further litigation 

costs. 

Defendant’s Position: Defendant has moved to temporarily stay all discovery (see ECF 

No. 16) during the pendency of its motion to dismiss (see ECF No. 15), filed on June 29, 

2020. The Court has ordered expedited briefing on that motion. For the reasons stated in 

Defendant’s motion to stay, therefore, Defendant believes that no discovery should proceed 

at this time. Should this matter proceed to discovery, however, Defendant anticipates 

conducting written and deposition discovery from Plaintiff and potentially third parties 

regarding and relevant to Plaintiff, Plaintiff’s claims and Defendant’s affirmative defenses. 

Defendant may also request discovery of witnesses and other evidence on which they 

intend to rely, as provided by the Federal Rules of Civil Procedure, the Local Rules, and 

applicable law. 

Additionally, Defendant believes that, should this matter proceed to discovery and due to 

the fact that Plaintiff’s allegations are unfounded, phased discovery is necessary and 

appropriate for the sake of judicial and party economy, and thus requests that the Court 

bifurcate individual and class discovery according to Defendant’s proposed schedule below 

so that the Court and parties can first focus on the Plaintiff-specific discovery necessary 

for the Court to address the merits of Plaintiff’s individual claims against Defendant before 

addressing much broader (and possibly mooted, should Defendant prevail on summary 

judgment) class certification issues. Defendant believes that bifurcating discovery in this 

manner will be more efficient and cost-effective, given that if Plaintiff’s individual claim 

can be disposed of summarily (which Defendant believes it will for the reasons discussed 

in its pending motion to dismiss, among other reasons) it would obviate the need for costly 

and time-consuming class discovery and motion practice. If, and after, dispositive motions 

are filed and decided on the merits as to Plaintiff’s individual claims (and should the case 

not be disposed of summarily), Defendant proposes that class discovery will then proceed. 

Courts in the Eleventh Circuit and elsewhere routinely bifurcate discovery in this fashion, 

particularly in TCPA cases. See, e.g., Leschinsky v. Inter–Continental Hotels Corp., 2015 

WL 6150888, at *1 (M.D. Fla. Oct. 15, 2015) (granting motion to bifurcate and initially 

limiting discovery to whether the calls the named plaintiff received were dialed manually 

and how many calls she received); Physicians Healthsource, Inc. v. Anda, Inc., 2012 WL 

7856269, at *3 (S.D. Fla. Nov. 27, 2012) (granting motion to bifurcate to conduct discovery 

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as to plaintiff’s individual claims before resolving class-certification). See also Wooden v. 

Board of Regents of the Univ. Sys. Of Ga., 247 F.3d 1262, 1289 (11th Cir. 2001) (“If the 

district court were to resolve a summary judgment motion in Defendants’ favor and in 

doing so dismiss [plaintiff’s] individual claim before ruling on class certification, then 

[plaintiff] would not be an appropriate class representative.”). 

(C) Any issues about disclosure or discovery of electronically stored information, 

including the form or forms in which it should be produced: 

The Parties will produce documents in Adobe .PDF format or in native format where 

necessary. 

(D) Any issues about claims of privilege or of protection as trial-preparation materials, 

including – if the parties agree on a procedure to assert these claims after production– 

whether to ask the court to include their agreement in an order: 

The Parties agree that the inadvertent disclosure of information protected by the attorneyclient and/or work-product privilege shall not constitute a waiver of an otherwise valid 

claim of privilege. A party that receives privileged information shall return it to the other 

party immediately upon discovery of the privileged information and without retaining a 

copy. The parties will comply with the Court’s rules governing redaction of account and 

social security numbers. 

(E) What changes should be made in the limitations on discovery imposed under these 

rules or by local rule, and what other limitations should be imposed: 

Notwithstanding and without waiving Defendant’s pending motion to stay and its request 

to bifurcate, at this time, the Parties do not anticipate changes to the limitations to 

discovery. The parties reserve their rights to amend this response as necessary. 

(F) Any other orders the court should issue under Rule 26(c) or Rules 16(b) and (c): 

 Plaintiff believes there are no other orders that the Court should issue under Rule 16(b), 

16(c), or 26(c) at this time. 

Defendant believes that the Court should issue orders (i) staying all discovery during the 

pendency of its motion to dismiss and (ii) ordering bifurcated discovery, should discovery 

in the matter proceed, for the reasons discussed above. Defendant may also potentially 

seek a protective order to the extent Plaintiff requests confidential, proprietary or sensitive 

documents or other information during discovery. 

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LOCAL RULE 16.1(B)(2) CONFERENCE REPORT 

1. The likelihood of settlement: 

The Parties discussed a possible early resolution during their Rule 26(f) conference and 

have agreed to keep settlement discussions open. 

2. The likelihood of appearance in the action of additional parties: 

The Parties currently do not anticipate the appearance of any additional plaintiffs, 

defendants, or any otherwise interested parties, but respectfully reserve the right to add 

additional parties as necessary. 

3. Proposed limits on the time: 

The Parties have not agreed on a case management schedule and submit the following proposals 

(which are reflected in the parties’ respective proposed orders submitted herewith) for the Court’s 

consideration. 

Plaintiff: Plaintiff proposes the following case management deadlines: 

I. Cutoff to join other parties and amend the pleadings: 07-31-2020. 

II. The Parties shall disclose experts, expert witness summaries and reports, as 

required by Federal Rule of Civil Procedure 26(a)(2): 12-04-2020

III. The Parties shall exchange rebuttal expert witness summaries and reports, as 

required by Federal Rule of Civil Procedure 26(a)(2): 01-04-2021

IV. Plaintiff shall file a motion for class certification: 02-01-2021

V. The Parties shall complete mediation and file a mediation report with the Court: 

02-19-2021

VI. The Parties shall file all motions to strike or exclude expert testimony, whether 

based on Federal Rule of Evidence 702 and Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), or for any other reason. If a favorable 

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ruling on the motion(s) would be case dispositive, however, all such motions must 

be filed by the dispositive motion deadline: 03-01-2021

VII. The Parties shall each file one motion in limine. All motions in limine must be filed 

at least six (6) weeks before calendar call: 03-01-2021

VIII. Deadline to complete discovery: 03-15-2021

IX. Deadline for filing dispositive motions: 03-15-2021

X. The Parties shall submit their deposition designations: 06-18-2021

XI. Joint pretrial stipulation must be filed pursuant to Local 16.1(e): 06-18-2021

XII. Final proposed jury instructions (for jury trial) or findings of fact and conclusions 

of law (for bench trial) must be submitted: 06-18-2021

Defendant: Defendant does not agree that Plaintiff’s proposed schedule is adequate. Should 

discovery proceed in this matter, Defendant proposes that the Court set a case management 

schedule based on bifurcation of individual and class discovery. In that regard, Defendant 

proposes that (i) limited discovery focused on the issues relevant to Plaintiff’s individual claims 

proceed first in the interest of judicial and parties economy, (ii) if necessary, class discovery 

proceed thereafter on a reasonable schedule, to be determined, after the Court first rules on the 

merits of the parties’ respective dispositive motions (i.e., motions for summary judgment with 

respect to Plaintiff’s individual claims against Defendant, to be filed during individual discovery 

or after individual discovery is completed), and (iii) the trial be set for and proceed after completion 

of class discovery. Defendant believes that given Plaintiff’s inability to prove (or even allege) his 

claims, that proceeding in this manner would be more efficient, and would allow the Court and 

parties to focus on, resolve, and potentially dispense with Plaintiff’s individual claims before 

moving onto the more complex, costly, time consuming and likely unnecessary class discovery. 

In this regard, Defendant proposes the following schedule: 

 Discovery as to the merits of Plaintiff’s individual claims to proceed for a period 

of 180 days after entry of the Court’s scheduling order or, if the Court grants 

Defendant’s pending motion to stay discovery (see ECF No. 16), 180 days 

following the lifting of the discovery stay (if at all); 

 Opening summary judgment motions as to the merits of Plaintiff’s individual 

claims be due no later than thirty (30) days thereafter (though summary judgment 

motions may be filed at any point prior to this deadline); 

 Oppositions to summary judgement due thirty (30) days after service of opening 

motions; and 

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 Reply briefs in support of summary judgment due fifteen (15) days after service 

of oppositions. 

Defendant further proposes that the Court set a further case management conference, at the Court’s 

convenience, to occur after the Court has ruled on summary judgment motions relating to 

Plaintiff’s individual claims to set, if necessary, a schedule for class discovery. 

4. Proposals for the formulation and simplifications of issues: 

The Parties agree to cooperate in trying to simplify the issues through discovery. 

5. The necessity or desirability of amendments to the pleadings: 

At this time, Plaintiff does not anticipate amending the pleadings; however, to the next 

necessary, any motion(s) to amend will be filed within the time frame set forth above. 

6. The possibility of obtaining admissions of fact and documents to avoid unnecessary 

proof: 

The Parties will attempt, in good faith, to obtain admissions of fact, make appropriate 

stipulations, and exchange documents which will avoid unnecessary proof in this action. 

The Parties will work to agree on authentication of relevant documents and reserving 

arguments as to interpretation of such documents, specifically, to documents which 

originated from each of the Parties and/or their respective representatives and/or 

employees. At this time, there is no need for any advance rulings with respect to 

admissibility of evidence. 

7. Suggestions of the avoidance of unnecessary proof and cumulative evidence: 

The Parties, where possible and in good faith, shall attempt to streamline the presentation 

of evidence to advance the case to trial, and to minimize the duration of the proposed trial, 

as to those facts and evidence where there is no dispute. 

8. Suggestions on the advisability of referring matters to a Magistrate Judge or Master: 

The Parties consent to referring discovery and other non-dispositive issues to a Magistrate 

Judge. The Parties request that all other matters be decided by the District Judge. 

9. Preliminary estimate of the time required for trial: 

Plaintiff believes that trial will take 3-5 days. 

Defendant believes that trial will take 5-7 days. 

 

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10. Requested date or dates for conferences before trial, a final pretrial conference and 

trial: 

Plaintiff proposes the following dates: 

(1) Final pretrial conference: 06-25-2021. 

(2) Two-week Trial Period: 07-05-2021. 

Defendant proposes that the trial be set for and proceed after completion of class 

discovery, as discussed above. 

11. Any other information that might be helpful to the Court: 

Consent to Service by Email: Pursuant to Fed. R. Civ. P. 5(b)(2)(E), the parties agree that 

discovery papers and other papers not required to be filed and served through the Court’s 

CM/ECF system may be served by email through counsel. 

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DATED: July 2, 2020 

Respectfully Submitted, 

HIRALDO P.A. 

s/ Manuel S. Hiraldo 

Manuel S. Hiraldo, Esq. 

Florida Bar No. 030380 

401 E. Las Olas Boulevard 

Suite 1400 

Ft. Lauderdale, Florida 33301 

mhiraldo@hiraldolaw.com 

(t) 954.400.4713 

JIBRAEL S. HINDI, ESQ.

Florida Bar No.: 118259 

E-mail:jibrael@jibraellaw.com 

THOMAS J. PATTI, ESQ.

Florida Bar No.: 118377 

E-mail:tom@jibraellaw.com 

The Law Offices of Jibrael S. Hindi 

110 SE 6th Street, Suite 1744 

Fort Lauderdale, Florida 33301 

Phone: 954-907-1136 

Fax: 855-529-9540 

COUNSEL FOR PLAINTIFF 

 /s/ John W. McGuinness .

JOHN W. MCGUINNESS, ESQ. 

(admitted pro hac vice) 

E-mail: jmcguinness@manatt.com

A. PAUL HEERINGA, ESQ.

E-mail: PHeeringa@manatt.com

(admitted pro hac vice) 

Manatt Phelps & Phillips LLP 

1050 Connecticut Avenue NW, Suite 600 

Washington, DC 20036 

Phone: 202-585-6500 

Fax:202-585-6600 

 /s/ Yaniv Adar 

YANIV ADAR, ESQ. 

Florida Bar No.: 63804 

Mark Migdal & Hayden 

Brickell City Tower 

80 SW 8th Street, Suite 1999 

Miami, FL 33130 

Phone: (305)374-0440 

Email: yaniv@markmigdal.com 

COUNSEL FOR DEFENDANT 

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