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Castillo v. Caesars Entertainment Corp.

United States District Court, D. Nevada

October 1, 2019

JUAN CASTILLO, as an individual and on behalf of all others similarly situated, Plaintiff,
v.
CAESARS ENTERTAINMENT CORPORATION, et al., Defendants.

          ORDER

          Gloria M. Navarro, District Judge

         Pending 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).

         Also 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).

         I. BACKGROUND

         This 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. ¶ 19).

         On 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.

         II. LEGAL STANDARD

         “After 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).

         In 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. 2009).

         “[J]udgment 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. 2006).

         III. DISCUSSION

         A. Motion for Stay

         Defendants 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.

         1. ...


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