GERALD POLICASTRO, A FLORIDA RESIDENT, PETITIONER,
v.
CHERYL STELK, RESPONDENT

Fla. 5th DCA | 2001-03-23
No. 5D00-3497
SHARP, W. and SAWAYA, JJ., concur.
780 So. 2d 989 Florida District Court of Appeal, Fifth District (2001) Positive Treatment
Cited by 16 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Policastro sought certiorari review of an order denying his motion for protective order that would have halted merits discovery pending class certification in a shareholder derivative action. The Florida District Court of Appeal granted certiorari and quashed the discovery order, holding that merits discovery must be stayed until the trial court determines whether class certification is appropriate.


Holding

A trial court must stay merits discovery pending its determination of class certification. Under Florida Rule of Civil Procedure 1.220(d)(1), discovery prior to class certification is limited to determining whether the claim is maintainable on behalf of a class, not to discovery on the merits. No class action may proceed until there is a named plaintiff with standing to represent the class, and if certification is denied, the plaintiff would have no right to pursue merits discovery on behalf of a class she cannot represent.


Headnotes

[1] Certiorari is appropriate to review interlocutory orders that depart from the essential requirements of law, causing material injury throughout the remainder of the proce…

[2] Discovery may be curtailed where it is affirmatively established to be irrelevant or will not lead to the discovery of relevant information.

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Key Quotes

“It is clear that no class action may proceed until there is a named plaintiff with standing to represent the class.”

Establishes the fundamental requirement that class certification cannot precede establishment of plaintiff's standing to represent the class.

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Facts & Procedural History

Stelk filed a multi-count complaint against Policastro, a fellow shareholder of Agent Investors Holding Company (AIHC), alleging mismanagement of the …

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Opinion of the Court
ORFINGER, R.B.

Petitioner, Gerald Policastro (Policas-tro), seeks certiorari review of an order denying his motion for protective order. We grant certiorari and quash the discovery order under review.

Respondent, Cheryl Stelk (Stelk), filed a multi-count second amended complaint against Policastro relating to Poli-castro’s alleged mismanagement of Agent Investors Holding Company (AIHC), a corporation in which both Policastro and Stelk own stock. Stelk attempts to assert a class action claim against Policastro, purportedly on behalf of the other minority shareholders of AIHC, seeking damages from Policastro for his alleged mismanagement of the corporation. Certiorari is appropriate to review interlocutory orders that depart from the essential requirements of law, causing material injury throughout the remainder of the proceeding below, effectively leaving no adequate remedy at law. See Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla.1995); Tampa Pipeline Corp. v. CF Indus., Inc., 693 So. 2d 580, 582 (Fla. 2d DCA 1997) (recognizing that although generally certiorari relief will not be granted unless petitioner can establish material injury, DCA may curtail discovery order where discovery affirmatively established to be irrelevant, or will not lead to discovery of relevant information).

Stelk began discovery by requesting numerous documents from Policastro and the various corporations he owns. The requested discovery went to the merits of Stelk’s claims, not the appropriateness of class certification. Policastro filed a motion for protective order seeking to stop discovery on the merits of the claims until class certification had been determined.

The trial court denied Policastro’s motion to limit the scope of discovery and it is that order we now review.1 It is clear that no class action may proceed until there is a named plaintiff with' standing to represent the class. W.S. Badcock Corp. v. Webb, 699 So. 2d 859, 860 (Fla. 5th DCA 1997); Jose Gutierrez v. E & J Gallo Winery, No. C-75-0001 SW, 1975 WL 982 at *1 (N.D.Cal. Nov.25, 1975) (“[T]he question of plaintiffs’ standing to sue ... should be disposed of before reaching the question of whether [the] action should be certified as a class action. For a decision contrary to plaintiffs’ claim of standing would bring this action to a crashing halt, necessitating no further action whatsoever.”).

A civil action does not become a “class action” simply because the complaint bears the legend “class action complaint” or, as required by Florida Rule Civil Procedure 1.220, “class representation.” Markham R. Leventhal, Class Actions: Fundamentals of Certification Analysis, Fla.B.J., May 1998, at 11; 3 James Wm. Moore, et al., Moore’s Federal Practice, ¶ 23.02 (2nd ed.1995).

The courts have recognized that “[Certification of a large class may so increase the defendant’s potential damages liability and litigation costs that he may find it economically prudent to settle and to abandon a meritorious defense.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 476, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).

As a result, no class should be certified until the trial court has satisfied itself “after a rigorous analysis” that all of the requirements of class certification have been met. See Fla. R.Civ.P. 1.220; Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

Florida Rule of Civil Procedure 1.220(d)(1) provides for discovery prior to class certification. The rule does not contemplate merits discovery pri-or to class certification; rather, the rule permits discovery “concerning whether the claim or defense is maintainable on behalf of a class.” Until discovery on this limited issue is completed, the trial court may postpone the determination of class certification.

If Stelk was determined to have no standing to represent the class, or if class certification was otherwise inappropriate, she would have no right to pursue discovery on behalf of a putative class whose rights she does not represent. We therefore grant certiorari, quash the order under review with directions that the trial court stay merits discovery in this matter pending its determination of class certification.

CERTIORARI GRANTED, ORDER QUASHED.

SHARP, W. and SAWAYA, JJ., concur. . In an unpublished order dated December 7, 2000, this court stayed discovery pending res olution of Policastro’s petition for writ of certiorari.


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  • Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91 (Fla. 2011)
    …trial court’s proper focus is on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits.” (quoting City of Tampa v. Addison, 979 So. 2d 246, 252 (Fla. 2d DCA 2007))); Policastro v. Stelk, 780 So. 2d 989, 991 (Fla. 5th DCA 2001) (“Florida Rule of Civil Procedure 1.220(d)(1) does not contemplate merits discovery prior to class certification; rather, the rule permits discovery ‘concerning whether the claim or defense is maintainable on behalf of a cla…
  • Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169 (Fla. 1st DCA 2008)
    …asonably calculated to lead to admissible evidence.” Langston, 655 So. 2d at 94. In putative class action cases such as this one, “Florida Rule of Civil Procedure 1.220(d)(1) provides for discovery prior to class certification.” Policastro v. Stelk, 780 So. 2d 989, 991 (Fla. 5th DCA 2001). The Fifth District has explained, “The rule does not contemplate merits discovery prior to class certification; rather, the rule permits discovery ‘concerning whether the claim or defense is maintainable on behalf of a clas…
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  • S.D.S. Autos, Inc. v. Chrzanowski, 976 So. 2d 600 (Fla. 1st DCA 2007)
    …t not with the present appeals. . Until the trial court certified the class, just those persons actually named in the complaints were parties, and only their leases were pertinent, although the record contains other leases. See Policastro v. Stelk, 780 So. 2d 989, 991 (Fla. 5th DCA 2001) (noting that “[a] civil action does not become a 'class [*604] action' simply because the complaint bears the legend 'class action complaint' ”). .The Lexus 2 agreement provides that “if the provision prohibiting classwide…

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