Fitzgerald v. Pollard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RHONDA FITZGERALD, Case No.: 20cv848-JM (NLS) 12 Plaintiff, ORDER GRANTING IN PART DEFENDANTS’ MOTION TO 13 v. BIFURCATE DISCOVERY 14 MARCUS POLLARD; Lieutenant C. MOORE; Sargeant H. CRUZ; Officer [ECF No. 33] 15 JACKSON; Officer LITTLE; and DOES 1 16 through 10, inclusive, 17 Defendants. 18 19 Before the Court is Defendants’ motion to bifurcate discovery. ECF No. 33. 20 Plaintiff filed an opposition, and Defendants filed a reply. ECF Nos. 37, 38. After due 21 consideration and for the reasons set forth below, the Court GRANTS IN PART the 22 motion to bifurcate discovery. 23 I. BACKGROUND 24 Plaintiff Rhonda Fitzgerald (“Fitzgerald”) brings this putative class action on 25 behalf of herself and others similarly situated, alleging violations of 42 U.S.C. § 1983 26 against Defendants along with state law claims. ECF No. 1. Plaintiff alleges that she 27 was subjected to a strip search at the Richard Donovan Correctional Facility (“RJD”) 28 when she went there to visit her friend, inmate Christopher Roberts (“Roberts”). Id. at ¶ 1 13. Plaintiff alleges that she was not screened upon arrival but was told by Defendant 2 Officer Little that she would not be permitted to see Roberts without submitting to a strip 3 search. Id. at ¶ 14. Plaintiff alleges that she was told that the search was random, and 4 that Defendant Warden Pollard requested it. Id. at 17. Prior to the search, Plaintiff 5 alleges that Officer Little produced a Notice of Request to Search form, which Plaintiff 6 signed but alleges that no supervisor signed until after the search. Id. at ¶¶ 22-23. 7 Defendant Officers Jackson and Little conducted the search, which included asking 8 Plaintiff to remove all her clothing and submit to a body cavity search as well. Id. at ¶¶ 9 24-27. Plaintiff alleges that she was not told and not aware that it would include a body 10 cavity search. Id. at ¶¶ 18-21. 11 Plaintiff alleges that she believes the strip search she was subjected to was 12 common practice. Id. at ¶ 13. Thus, she brings a class action consisting of “visitors to 13 the Richard J. Donovan Correctional Facility in the CLASS PERIOD who were required 14 to submit to an unclothed search as a condition to visiting an inmate and whose Notice of 15 Request for Search form states no specific objective facts and rational inferences 16 establishing individualized reasonable suspicion to believe that the person targeted for the 17 search had an intention of smuggling contraband into the Prison.” Id. at ¶ 38. Plaintiff 18 alleges that Defendants violated her Fourth Amendment Rights in searching her without 19 reasonable suspicion and for failure to train and supervise, and state law claims for 20 intentional infliction of emotional distress and negligence. 21 The Court held an early neutral evaluation conference, where the case did not 22 settle, and issued a Scheduling Order after holding a case management conference. ECF 23 Nos. 25-26, 31-32. Defendants now bring this motion to bifurcate discovery related to 24 the claims of the individual named plaintiff, Fitzgerald, from the remainder of class 25 claims. 26 II. DISCUSSION 27 “The decision to bifurcate discovery in putative class actions prior to certification 28 is committed to the discretion of the trial court.” McEwan v. OSP Grp., L.P., No. 14-CV- 1 2823-BEN (WVG), 2016 WL 1241530, at *2 (S.D. Cal. Mar. 30, 2016) (citing True 2 Health Chiropractic Inc. v. McKesson Corp., 2015 WL 273188, at *1 (N.D. Cal. Jan. 20, 3 2015)); see also Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 4 2009) (“District courts have broad discretion to control the class certification process, and 5 ‘[w]hether or not discovery will be permitted … lies within the sound discretion of the 6 trial court.’”) (quotation omitted). Courts may consider the following factors in deciding 7 whether to bifurcate: “(1) the overlap between individual and class discovery, (2) whether 8 bifurcation will promote Federal Rule of Civil Procedure 23’s requirement that 9 certification be decided at ‘an early practicable time,’ (3) judicial economy, and (4) any 10 prejudice reasonably likely to flow from the grant or denial of a stay of class discovery.” 11 True Health Chiropractic Inc., 2015 WL 273188, at *1. 12 Defendants argue that bifurcation is appropriate here because they intend to bring 13 an early motion for summary judgment to ask the court to adjudicate the issue of whether 14 there was reasonable, individualized suspicion to search Ms. Fitzgerald. ECF No. 33 at 15 2. In support of this, Defendants submit several confidential memoranda and other 16 evidence that they argue they relied upon to find reasonable suspicion to conduct the 17 search in accordance with their guidelines and procedures. Id. at 8-10. If their motion is 18 granted, Defendants argue that the class claims would also fail. Id. at 7. Thus, 19 Defendants contend that judicial economy and cost savings would be achieved in not 20 having to engage in class discovery until a ruling on the motion for summary judgment. 21 Plaintiff objects to the request to bifurcate. ECF No. 37. First, they argue that 22 Defendants’ evidence does not establish reasonable suspicion to search Ms. Fitzgerald. 23 Id. at 5-8. Second, they argue that the factors do not favor bifurcation. Id. at 9-11. 24 Finally, they argue that even if Ms. Fitzgerald were deemed to not be an adequate class 25 representative, they would seek leave to substitute another class representative. Id. at 12- 26 13. 27 As a preliminary matter, the Court notes that it will not address any merits of the 28 contention of whether the evidence submitted by Defendants would establish reasonable 1 suspicion to search Ms. Fitzgerald or the issue of whether Ms. Fitzgerald is an 2 appropriate class representative. However, the evidence and Defendant’s intention to 3 bring an early summary judgment on that issue does affect the procedural posture of the 4 case and how the case will proceed going forward as a class action. Defendants state that 5 they are ready to file the motion imminently. ECF No. 33 at 2 (stating that they intend to 6 file the motion by May 14, 2021). Thus, the Court finds that there will be some judicial 7 economy to be achieved if the initial discovery was limited to Plaintiff’s claims before 8 delving into the class claims. 9 The Court will GRANT IN PART this motion, and limit initial discovery to only 10 that discovery related to Ms. Fitzgerald’s individual claims until July 30, 2021, after 11 which discovery will be open to all class claims. There may be some overlap between 12 individual discovery and class discovery here as Plaintiff points out (for example, as to 13 Defendants’ practices and policies), but as long as the discovery pertains to Plaintiff’s 14 claims, Plaintiff would not be precluded from seeking that discovery initially. Moreover, 15 contrary to what the parties state in their motion, there is a scheduling order in place. 16 ECF No. 32. This temporary stay on class-wide discovery does not affect the close of 17 fact discovery as set in the scheduling order, nor does it effect the class certification date 18 at this time.1 Thus, the factors related to prejudice and early class certification are not 19 affected. 20 // 21 // 22 // 23 // 24 // 25 // 26 27 1 Fact Discovery is currently set to close on December 31, 2021 and the deadline to file a motion for 28 1 II. Conclusion 2 For the reasons set forth above, the Court GRANTS IN PART the motion to 3 || bifurcate discovery. Discovery will be limited to only discovery related to Ms. 4 || Fitzgerald’s individual claims until July 30, 2021, after which discovery will be open to 5 class claims. In addition, Defendants must file their motion for summary judgment by 6 ||no later than June 1, 2021. 7 IT IS SO ORDERED. 8 ||Dated: May 25, 2021 9 Mite. Lemme 10 Hon. Nita L. Stormes United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28