DEFENDANT’S REPLY TO RESPONSE TO MOTION FOR PROTECTIVE ORDER Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

STEPHANIE BROWN, on behalf of herself §

and others similarly situated, §

§

Plaintiff, §

§

vs. § Civil Action No. 1:24-cv-16-MAC

§

PREMIER HEALTH SOLUTIONS, LLC, §

§

Defendant. §

DEFENDANT’S REPLY TO RESPONSE TO MOTION FOR PROTECTIVE ORDER

Premier Health Solutions, LLC (“Premier”), files this Reply to Response to Motion 

for Protective Order:

I.

Initial Discovery Should First Address Whether Plaintiff Can Maintain an Action

1. Contrary to Plaintiff’s assertions in her Response, Defendant merely 

requests that the Court delay class discovery until it is established that Plaintiff individually 

has a right to maintain an action against Defendant under the Telephone Consumer 

Protection Act (“TCPA”) or the Florida Telephone Solicitation Act Autodial Class (“Florida 

Telephone Act”). While Plaintiff asserts that a call was made to her telephone, Defendant 

has no record of any call being made to that telephone number in violation of the Do Not 

Call Registry. Defendant has answered the discovery as to communications with Plaintiff

and advised it has no record of a call to her number. If Defendant did not make a 

telephone call to Plaintiff as alleged in the Petition, then Plaintiff would have no standing 

to assert either individual or class action causes of action against Defendant. 

2. Defendant’s Motion for Protective Order simply requests that the discovery 

premised on discovering other potential class members be postponed until such time as 

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the Court can address whether Plaintiff can maintain an individual cause of action much 

less whether Plaintiff is a proper lead plaintiff in a class action suit. If Plaintiff is not an 

appropriate lead plaintiff, then she would not be entitled to pursue a class action suit on 

behalf of other potential class members. Because Plaintiff is a commercial litigator, she 

does not qualify as a lead plaintiff in a class action suit. See, Stoops v. Wells Fargo Bank, 

N.A., No. CV 3:15-83, 2016 WL 356266 (W.D. Pa. June 24, 2016); Telephone Science 

Corp. v. Asset Recovery Solutions, L.L.C., No. 15-CV-5182, 2016 WL 4179150, at *1 

(N.D. Ill. Aug. 8, 2016). 

3. Defendant has no record of calling the number identified by Plaintiff. If 

Defendant never placed a call to the number identified by Plaintiff, Plaintiff would not have 

standing to bring a class action on behalf of herself or others. As Plaintiff’s response 

concedes, the decision in Geraci v. City of Austin, No. 1:19-CV-340-LY-SH, 2019 WL 

6050728, at *1 (W.D. Tex. Nov. 14, 2019), agreed that it was appropriate to stay discovery 

when the plaintiff may not be able to pursue the litigation herself. Where a motion 

challenging Plaintiff’s standing to assert her own as well as her class action complaints 

could eliminate the class aspect of the case, requiring the parties to conduct expensive 

class discovery is unnecessary until that determination is made by the Court.

II.

Individual Claim Should be Addressed Before Class Discovery

4. Plaintiff’s reliance on a decision out of a Pennsylvania district is misplaced 

as in that ruling, the Court specifically noted that the Court had not previously bifurcated 

discovery. Frey v. Frontier Utils. Northeast, L.L.C., No. 19-2372-KSM, 2020 WL 

12697468(E.D. Pa. Apr. 13, 2020). In contrast, this Court has previously held that that 

“individual claims should be addressed prior to initiating class-wide discovery.” 

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Whittington v. Mobiloil Federal Credit Union, No. 1:16-CV-482, 2018 WL 4278503, at *1 

(E.D. Tex. Apr. 5, 2018). This Court has yet to address whether class action discovery 

should proceed before Plaintiff’s standing to assert either individual or class action 

complaints has been established. 

5. Plaintiff asserts that class discovery is necessary at this stage essentially 

for fear of the possibility of spoliation of evidence. However, in the unlikely event of 

spoliation of evidence occurring after a lawsuit has been filed, the Court could address

that issue if it even arose. That is not a legitimate reason to require class discovery before 

the Plaintiff has even shown her standing to pursue a claim on her own. 

6. Plaintiff also cites to cases outside of Texas and the Fifth Circuit for the 

premise that plaintiffs are allowed to commence class wide discovery. Doc. 10, Page 9. 

However, Plaintiff does not provide any proper citation to the string cite of cases. A search 

of Pacer for the Abramson decision referred to by Plaintiff only found three orders on the 

date cited by Plaintiff – a Case Management Order, Order on Motion to Appear Pro Hac 

Vice, and an Order on Motion for Extension of Time to File Answer. In Cooley v. Freedom 

Forever, L.L.C., No. 2:19-cv-00562-JCM-NJK, Doc. 37 (D. Nev. July 19, 2019), the Court 

had previously prohibited the Plaintiff from engaging in any class wide discovery. The 

July 19, 2019 decision made a limited lift of a stay to allow discovery into another potential 

defendant to comply with the Court’s Scheduling Order for adding new defendants. 

Similarly, the three line order in Cooley v. First Data Merchant Services, L.L.C., No. 1:19-

cv-1185, Doc. 32 (N.D. Ga. July 8, 2019), simply allowed limited discovery on “the John 

Doe Corporation or any third party that may have information that could identify putative 

class members.” The decision in Abante Rooter & Plumbing, Inc. v. Birch 

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Communications, Inc., No. 1:15-cv-3562-AT, 2016 WL 269315, at *3 (N.D. Ga. Jan. 7, 

2016), contained no substantive discussion concerning discovery for class action claims 

and the class is only mentioned in a single sentence. Likewise, the order in Mey v. 

Interstate National Dealer Services, Inc., No. 14-cv-01846, Doc. 23 (N.D. Ga. Aug. 19, 

2014) contained no discussion regarding the merits of class discovery.

7. Interestingly, in attempting to identify the cases improperly cited by Plaintiff, 

a Westlaw search for the Abramson decision located another case involving Stewart 

Abramson, which identified him as being “on a crusade against robocalls.” Abramson v. 

First American Home Warranty Corp., No. 22-cv-1003-NR, 2023 WL 2214248, at *1 (W.D. 

Pa. Feb. 24, 2023). That Abramson decision actually limited the scope of permissible 

discovery to a discrete issue of whether the individual plaintiff could proceed in district 

court. Id. 

8. Plaintiff further attempts to distinguish the caselaw cited by Defendant 

concerning staying discovery by asserting that those cases only apply to a motion to 

dismiss. While those holdings did involve a pending motion to dismiss, nothing in those 

decisions limit the stay of discovery to a motion to dismiss. Plaintiff should not be 

permitted to conduct class action discovery simply because her Petition is artfully worded. 

Nor should Defendant be required to engage in class action discovery because it chose

not to fill the Court’s docket with a Motion to Dismiss instead of challenging the merits of 

the claim. Because Defendant disputes that it made any call to Plaintiff in violation of the 

TCPA or the Florida Telephone Act and because Plaintiff appears to be a serial litigator 

of these type claims, it would be appropriate to first ascertain whether Plaintiff has 

standing to assert the claims alleged in the Petition before engaging in class discovery.

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III.

Request for Protective Order

9. The Fifth Circuit allows the trial courts to stay discovery for “good cause” 

until after threshold legal issues which may dispose of the case are resolved. Fujita v. 

United States, 416 Fed. Appx. 400, 402 (5th Cir. 2011), citing Petrus v. Bowen, 833 F.2d 

581, 583 (5th Cir. 1987). Courts should have concern about commercial litigators using 

the threat of costly class action discovery to increase the expense of litigation without 

even allowing basic discovery into whether the Plaintiff has a potential right of recovery. 

For that reason, Defendant requests that this Court exercise its discretion to stay class 

action discovery until such time as the Court makes determination of whether Plaintiff can 

recover on her own behalf, much less whether she can pursue a class action.

Respectfully submitted,

/s/ Deanne C. Ayers

Deanne C. Ayers (State Bar No. 01465820)

dayers@ayersfirm.com 

Julie B. Tebbets (State Bar No. 00793419)

jtebbets@ayersfirm.com

AYERS & AYERS

4205 Gateway Drive, Suite 100

Colleyville, Texas 76034

(817) 267-9009 Telephone

(817) 318-0663 Facsimile

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF SERVICE

A true and correct copy of the foregoing document was filed electronically with the 

United States District Court for the Eastern District of Texas, with notice automatically 

routed to Plaintiff via the Court’s CM/ECF system on this the 15th day of April, 2024.

/s/ Deanne C. Ayers

Deanne C. Ayers

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