United States District Court, D. Nevada
JUAN CASTILLO, as an individual and on behalf of all others similarly situated, Plaintiff,
CAESARS ENTERTAINMENT CORPORATION, et al., Defendants.
M. Navarro, District Judge
before the Court is the Motion on for Judgment on the
Pleadings, (ECF No. 47), filed by Defendants Caesars
Entertainment Corporation (“CEC”) and Desert
Palace, LLC (“Caesars Palace”) (collectively
“Defendants”). Plaintiff Juan Castillo
(“Plaintiff”) filed a Response, (ECF No. 72), and
Defendants filed a Reply, (ECF No. 74).
pending before the Court is Defendants' Motion to Stay
Case, (ECF No. 48). Plaintiff filed a Response, (ECF No. 73),
and Defendants filed a Reply, (ECF No. 75).
case arises out of Defendants' alleged violations of the
Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”) by way of its “Ivy virtual
concierge.” (Compl. ¶¶ 10, 31-36, Ex. A to
Notice of Removal, ECF No. 1-1). Plaintiff alleges that in
April 2018, Plaintiff stayed in Defendants' hotel,
Caesars Palace, in Las Vegas, Nevada. (Compl. ¶ 16).
Once at the front desk, while checking in, he orally provided
his cell phone number to the receptionist. (Id.).
About thirty minutes later, he received a text message from
Defendants' Ivy virtual concierge service telling him,
inter alia, to “[t]ext me for hotel
information, towels, housekeeping requests and more.”
(Id.). Additionally, Plaintiff claims that at no
time prior to receiving Defendants' text message did
Plaintiff expressly authorize Defendants to send him text
messages using an automatic telephone dialing system for
telemarketing or advertising purposes. (Id. ¶
August 2, 2018, Plaintiff brought this class-action in the
Superior Court of the State of California, Marin County
alleging one claim against Defendants for violation of the
TCPA. (Compl. ¶¶ 31-36). Subsequently, Defendants
removed to the U.S. District Court, Northern District of
California, invoking federal question subject matter
jurisdiction. (Notice of Removal, ECF No. 1). The case was
subsequently transferred to the District of Nevada in
December 2018. (J. Chen Order, ECF No. 33); (Min. Order, ECF
No. 36). On December 21, 2018, Defendants filed the instant
Motion for Judgment on the Pleadings and Motion to Stay Case.
This Order now follows.
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). Motions for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c) are
“functionally identical” to motions to dismiss
for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Dworkin v. Hustler Magazine
Inc., 867 F.2d 1188, 1192 (9th Cir. 1989).
reviewing a motion for judgment on the pleadings pursuant to
Rule 12(c), a court “must accept all factual
allegations in the complaint as true and construe them in the
light most favorable to the non-moving party.”
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
on the pleadings is proper ‘when, taking all the
allegations in the non-moving party's pleadings as true,
the moving party is entitled to judgment as a matter of
law.'” Ventress v. Japan Airlines, 486
F.3d 1111, 1114 (9th Cir. 2007) (citation omitted). The
allegations of the nonmoving party must be accepted as true
while any allegations made by the moving party that have been
denied or contradicted are assumed to be false. MacDonald
v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir.
Motion for Stay
provide two grounds for stay: (1) the Ninth Circuit will soon
rule on Defendants' constitutional affirmative defense;
and (2) the FCC's interpretation of the term
“ATDS” in a pending proceeding will determine
whether Plaintiff can state a claim. (Mot. Stay 3:5-6, ECF
No. 48). With regard to the latter, Defendants invoke the
primary jurisdiction doctrine as well as the Court's
inherent authority in support of its Motion to Stay.