United States District Court, D. Nevada
J. Dawson District Judge.
before the Court is Defendant's Motion to Stay (#6).
Plaintiff filed a response in opposition (#12) to which
Defendant replied (#14).
Noelle Gage claims that within the four years prior to filing
her complaint, Defendant Cox Communications, Inc.
(“Cox”) made numerous calls to her cellular
phone. Though Plaintiff says she informed Defendant that it
was calling the wrong person, the calls continued. Plaintiff
alleges that Defendant uses an automated telephone dialer
system to call her cellular phone, without her consent,
thereby violating the Telephone Consumer Protection Act
(“TCPA”). 47 U.S.C. 227.
moves that this court stay action until ACA
International, et al. v. Federal Communication Commission and
United States of America, No. 15-1211 (D.C. Cir. July
19, 2015) is decided. This case is a consolidated appeal of a
2015 Federal Communications Commission (“FCC”)
order regarding the TCPA. Defendant argues that the
resolution of ACA International will resolve several
central issues to the present matter, including: (1) the
definition of autodialer; (2) the definition of “called
party” for purposes of liability under the TCPA; and
(3) whether a safe harbor exists for calls to numbers where a
caller previously had consent to call, but the number was
subsequently reassigned to someone other than the person who
had given consent to be called.
has discretionary ability to stay a proceeding as part of its
power to “control the disposition of the causes on its
docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. N. Am.
Co., 299 U.S. 248, 254-55 (1936). “A trial court
may, with propriety, find it is efficient for its own docket
and the fairest course for the parties to enter a stay of an
action before it, pending resolution of independent
proceedings which bear upon the case.” Leyva v.
Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th
Cir. 1979). When deciding whether to stay a proceeding, a
court should consider the parties' “the competing
interests” that will be effected by the potential stay.
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th
Cir. 2005) (quoting Landis, 299 U.S. at 268). The
interests to consider include: (1) The possible damage that
could result by granting the stay; (2) the hardship to the
moving party if required to move forward, and; (3) the degree
to which granting the stay will complicate or simplify the
“issues, proof, and questions of law which could be
expected to result from a stay.” Id. However,
lengthy or indefinite stays are not permitted. Blue Cross
and Blue Shield of Alabama v. Unity Outpatient Surgery
Center, Inc., 490 F.3d 718, 724 (9th Cir. 2007). Such
stays effectively force the plaintiff out of court and run
the danger of denying justice. Id.
Gage's Potential Damages.
is seeking monetary damages and injunctive relief. Plaintiff
does not argue that she would suffer any harm if
Defendant's motion were granted, other than delay.
Additionally, Plaintiff has not plead that the
alleged-harassing phone calls continue into the present, so
that a delay in injunctive relief would be harmful to her.
Therefore, the only potential damage that may result from a
stay is that Plaintiff will have to wait longer for
resolution of this case.
Potential Hardship to Defendant.
other hand, Defendant claims that it would suffer substantial
hardship if it were required to spend money and resources on
defending a case that might be significantly narrowed or
resolved by the D.C. Circuit Court's ruling. This Court
has found that both parties may suffer hardship when a case
is not stayed in situations where a controlling precedent is
under review by a higher court. U.S. Bank, National
Association v. SFR Investment Pool I, LLC, 2017 WL
1025172, *3-4 (D. Nev. Mar. 15, 2017), see also Wells
Fargo Bank, N.A. v. MEI-GSR Holdings, LLC, 2017 WL
1293012, *2 (D. Nev. Mar. 3, 2017). In the current case, both
parties would be potentially harmed by unnecessary briefing
and premature expenditures of time, attorney's fees, and
resources if Defendant's Motion to Stay were not granted.
Degree to Which a Stay Will Simplify the Issues
the D.C. Circuit Court is normally not binding authority on
this Court, it has the exclusive jurisdiction to review and
vacate an FCC ruling. 28 U.S.C. § 2342(1). If the D.C.
Circuit Court vacates all, or part, of the FCC ruling, it
will dispose of a substantial portion of the issues in this
case. Staying this case pending the D.C. Circuit Court's
ruling will permit the parties to evaluate, and the Court to
consider, viability of the claims under the most complete