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Thomas v. Smith-Palluck Associates Corp.

United States District Court, D. Nevada

April 12, 2019




         I. SUMMARY

         This is a Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), case where Plaintiff Andrea Thomas alleges Defendant Smith-Palluck Associates Corp. d/b/a Las Vegas Athletic Clubs violated the TCPA by repeatedly calling Plaintiff after she stopped paying for her gym membership using automated equipment, even after she asked Defendant to stop calling her. (ECF No. 1.) Plaintiff further alleges violations of Nevada's Deceptive Trade Practices Act, NRS § 598.0918 (“NDTPA”). (Id. at 11-14.) Magistrate Judge Carl W. Hoffman previously stayed the case in September 2018 to await a potentially case-determinative ruling from the Ninth Circuit or the Federal Communications Commission (“FCC”), whichever came earlier. (ECF No. 42.) Before the Court is Defendant's motion to maintain the stay, even though the Ninth Circuit issued the opinion Judge Hoffman agreed to wait for, to await further guidance from the FCC on what constitutes an automatic telephone dialing system (“ATDS”) under the TCPA (the “Motion”).[1] (ECF No. 44.) Because the Court finds-as explained below-that neither the Landis factors nor the primary jurisdiction doctrine suggest the Court should maintain the stay, the Court will deny Defendant's Motion and lift the stay. The Court further addresses herein the parties' response to a prior minute order (ECF Nos. 49, 50) and Plaintiff's motion for leave to file supplemental authority (ECF No. 51). To preview, the Court determines this case should proceed separately from Kibbee v. Smith-Palluck Associates Corp., No. 2:18-cv-1848-APG-GWF (D. Nev. Filed Sept. 24, 2018) (“Kibbee”), and will deny Plaintiff's motion for leave to file supplemental authority as moot.


         Judge Hoffman had imposed a temporary stay of this case on Defendant's unopposed motion because of the potential impact of the Ninth Circuit Court of Appeals' decision in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), cert. dismissed, No. 18-995, 2019 WL 368840 (U.S. Feb. 27, 2019)-or the FCC's decision on whether the Nuxiba dialing system also at issue here constitutes an ATDS (the “FCC Decision”), whichever came earlier-on this case. (ECF No. 42.) In Marks, the Ninth Circuit found “that the statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a ‘random or sequential number generator,' but also includes devices with the capacity to dial stored numbers automatically.” Marks, 904 F.3d 1041 at 1052; see also Id. at 1052-53. However, the FCC Decision has yet to issue as of the date of entry of this order. Defendant moves the Court to maintain the stay until the FCC Decision. (ECF No. 44.)


         A district court has discretionary power to stay proceedings in its own court. See Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936); see also Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). “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 issue a stay, the court must weigh competing interests including: (1) the possible damage which may result from the granting of a stay; (2) the hardship or inequity which a party may suffer in being required to go forward; and (3) the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay [these factors are henceforth referred to as “the Landis factors”].” Singer v. Las Vegas Athletic Clubs, No. 2:17-cv-01115-GMN-VCF, 2019 WL 1338384, at *5 (D. Nev. Mar. 25, 2019) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).


         The Court first addresses whether to maintain the stay currently in effect in this case, whether to combine this case with Kibbee, and then Plaintiff's motion for leave to file supplemental authority.

         A. Whether to Maintain the Stay

         The Court will lift the stay because the Landis factors weigh in favor of lifting it. Defendant argues the Court should maintain the stay to await the FCC Decision under the primary jurisdiction doctrine because Defendant will be prejudiced if it is forced to defend this lawsuit, and because the FCC Decision may moot some of Plaintiff's claims.[2](ECF No. 44 at 5-8, 7 (incorporating by reference the prejudice due to defense argument from ECF No. 38).) Plaintiff responds the Court should lift the stay because she wants this litigation to move forward, and Defendant cannot articulate a meaningful basis to determine how long a maintained stay would last.[3] (ECF No. 45.) The Court agrees with Plaintiff on the latter point.

         Plaintiff filed this case in July 2017. Plaintiff is entitled to expeditiously prosecute its case. Indefinite stays are at odds with the Federal Rules of Civil Procedure's goal of “just, speedy, and inexpensive of every action and proceeding.” Fed.R.Civ.P. 1; see also LR 1-1(a), 1-1(b) (“It is the obligation of attorneys, as officers of the court, to work toward the prompt completion of each case and to minimize the costs of discovery.”). Further, “stays should not be indefinite in nature.” Singer, 2019 WL 1338384, at *5 (quoting Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007)). The Court agrees with Plaintiff that Defendant cannot point to a definite time or set of circumstances when a stay would no longer be appropriate-and this uncertainty weighs strongly in favor of lifting the stay here.[4] Further, the Court is unpersuaded by Defendant's argument that litigation costs alone represent prejudice meriting an indefinite stay. See Singer, 2019 WL 1338384, at *5 (citing Hawai'i v. Trump, 233 F.Supp.3d 850, 854 (D. Haw. 2017) (“being required to defend a suit, without more, does not constitute a clear case of hardship or inequity”) (citation omitted)).

         The Court is also unpersuaded by Defendant's argument that the Court should prolong the stay under the primary jurisdiction doctrine. (ECF No. 44 at 5-7.) Judge Navarro addressed and rejected Defendant's primary jurisdiction argument in Singer, 2019 WL 1338384, at *4-*5 (rejecting the argument and listing other courts within the Ninth Circuit that have rejected stay requests to await further FCC rulemaking in TCPA cases). The Court finds the same rationale applies here. Most notably, it is unclear when the FCC will issue new rules that would settle the question of whether Defendant's system at issue here is an ATDS, and when those rules will become final in light of likely legal challenges to them. See Id. at *5. It is also unclear whether the FCC Decision would definitively resolve all pertinent issues in this case. In short, the FCC Decision favorable to Defendant's position may never arrive. Thus, it would be inefficient to indefinitely delay these proceedings-and efficiency is a key consideration when determining whether to invoke the prudential doctrine of primary jurisdiction. See Singer, 2019 WL 1338384 at *4-*5.

         Defendant also argues the stay should be maintained because several constitutional challenges to portions of the TCPA applicable to this case are pending before other courts in the Ninth Circuit, and at the Ninth Circuit. (ECF No. 44 at 8 (citing Meza v. Sirius XM Radio, Inc., No. 17-cv-2252-AJB-JMA, 2018 WL 4599718, at *3-*5 (S.D. Cal. Sept. 25, 2018).) However, Plaintiff did not respond to this argument (ECF No. 45), and Defendant did not mention it in its reply (ECF No. 46). Further, Defendant argues in its reply that the FCC Decision will be “the binding decision[.]” (Id. at 4 (emphasis in original).) Thus, Defendant appears to have dropped this argument. Regardless, this argument is flawed for the same ...

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