United States District Court, M.D. Florida, Tampa Division
LAURA M. GOSNEIGH, Plaintiff,
NATIONSTAR MORTGAGE, LLC, Defendant.
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court pursuant to Defendant
Nationstar Mortgage, LLC's Motion to Stay (Doc. # 20),
filed on January 17, 2017. Plaintiff Laura Gosneigh filed a
response on January 31, 2017. (Doc. # 23). For the reasons
that follow, the Motion is denied.
initiated this action against Nationstar on October 28, 2016,
alleging violations of the Telephone Consumer Protection Act,
47 U.S.C. § 227, et seq., and the Florida
Consumer Collection Practices Act, Fla. Stat. § 559.55,
et seq. (Doc. # 1) . Specifically, Gosneigh alleges
that Nationstar made numerous calls to her cellular telephone
without her consent using an automated telephone dialing
system (ATDS) or an artificial or prerecorded voice.
(Id. at ¶¶ 21, 41).
January 17, 2017, Nationstar filed its Motion to Stay,
arguing that a stay is “appropriate because an
important legal issue that may be dispositive of this case is
currently pending before the United States Circuit Court of
Appeals for the District of Columbia.” (Doc. # 20 at
1). That case, ACA International v. Federal
Communications Commission, Case No. 15-1211 (D.C. Cir.
2015), questions the FCC's redefinition of the term ATDS
in the agency's July 10, 2015, Order. (Id. at 2,
Ex. A). Nationstar argues that the ACA International
decision may be dispositive, or at least clarify the issues
in this case, because “whether Nationstar used an
[ATDS] as defined by the TCPA and by the [FCC]” is
directly at issue. (Id. at 2).
district court has “broad discretion to stay
proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681, 706
(1997)(citing Landis v. N. Am. Co., 299 U.S. 248,
254 (1936)). Deciding whether to stay a case “calls for
the exercise of judgment, which must weigh competing
interests and maintain an even balance.”
Landis, 299 U.S. at 254-55.
Court considers “several factors when evaluating a
request for a stay, including prejudice to the non-moving
party, whether the requested stay would simplify and clarify
the issues, and whether the potential stay would reduce the
burden of litigation on the parties and on the court.”
Mackiewicz v. Nationstar Mortg., LLC, No.
6:15-cv-465-Orl-18GJK, 2015 WL 11983233, at *1 (M.D. Fla.
Nov. 10, 2015)(citing Freedom Sci., Inc. v. Enhanced
Vision Sys., No. 8:11-cv-1194-T-17AEP, 2012 U.S. Dist.
LEXIS 11410, at *2 (M.D. Fla. Jan. 21, 2012)).
courts routinely exercise their power to stay a proceeding
where a pending decision in another court would “have a
substantial or controlling effect on the claims and issues in
the stayed case.” Miccosukee Tribe of Indians of
Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198
(11th Cir. 2009); see also Coatney v. Synchrony
Bank, No. 6:16-cv-389-Orl-22TBS, 2016 WL 4506315, at *1
(M.D. Fla. Aug. 2, 2016)(staying TCPA case because
“[t]he issue in ACA International bears
directly on the instant case in that the ruling will
determine whether the equipment that Defendants allegedly
used to make telephone calls to Plaintiff is considered an
ATDS for purposes of the TCPA”).
here, the decision of ACA International will not be
dispositive. In the Complaint, Gosneigh alleges that she
received both calls using an ATDS and calls using an
artificial or prerecorded voice. (Doc. # 1 at ¶¶
21-22, 24). Section 227 of the TCPA makes it unlawful to make
collection calls using an ATDS or an artificial or
prerecorded voice, so “plaintiffs can state a claim
under the TCPA by allegin[g] the use of (1) an
‘artificial or prerecorded voice' or (2) an
ATDS.” Vaccaro v. CVS Pharmacy, Inc., No.
13-CV-174-IEG RBB, 2013 WL 3776927, at *1 n.2 (S.D. Cal. July
16, 2013)(citing 47 U.S.C. § 227(b)(1)(A); Vance v.
Bureau of Collection Recovery LLC, No. 10-cv-06324, 2011
WL 881550, at *3 (N.D. Ill. Mar. 11, 2011)).
ACA International “will not affect
[Gosneigh's] contention that [Nationstar] called [her]
using a prerecorded or automated voice, which is an
independent basis for stating a claim under the TCPA.”
Sliwa v. Bright House Networks, LLC, No.
2:16-cv-235-FtM-29MRM, 2016 WL 3901378, at *4 (M.D. Fla. July
19, 2016)(declining to stay TCPA case pending decision of
ACA International); see also Rodriguez v. DFS
Servs., LLC, No. 8:15-cv-2601-T-30TBM, 2016 WL 369052,
at *3 (M.D. Fla. Feb. 1, 2016)(stating ACA
International did not warrant a stay because it would
“have no effect on the viability of Rodriguez's
lawsuit as pled in her complaint”).
ACA International decision would not dispose of all
the issues in this case, a stay would primarily be “in
the interests of judicial economy, which the Supreme Court
has found to be insufficient justification for a stay pending
a similar proceeding.” Mancini v. JPMorgan Chase
Bank, N.A., No. 1:15-CV-61524-UU, 2016 WL 1273185, at *1
(S.D. Fla. Mar. 28, 2016)(citing Landis, 299 U.S. at
257); see also Coniglio v. Iqual Corp., No.
8:15-cv-2406-T-33AEP, 2015 WL 8521288, at *1 (M.D. Fla. Dec.
3, 2015)(“ackowledg[ing] that important developments in
[TCPA] law may be on the horizon” but nevertheless
declining to stay pending decision of ACA
International and another case).
also argues that she would be prejudiced by a stay because it
is uncertain when the D.C. Circuit will rule. See
Mancini, 2016 WL 1273185, at *1 (noting that
“[a]ny stay would be indefinite”). Furthermore,
“there is always the possibility that the D.C.
Circuit's decision will be appealed to the Supreme Court,
adding a further layer of indefinite - and perhaps lengthy -
delay were a stay to be granted here.” Schwyhart v.
AmSher Collection Servs., Inc., 182 F.Supp.3d 1239, 1243
(N.D. Ala. 2016). According to Gosneigh, such a delay could
lead to an “irreversible loss of needed information,
” such as original call logs and recordings. (Doc. # 23
at 4). To be sure, regardless of the outcome of ACA
International, further discovery will be required and
loss of such relevant evidence would prejudice Gosneigh.
Cf. Lathrop v. Uber Techs., Inc., No.
14-cv-05678-JST, 2016 WL 97511, at *4 (N.D. Cal. Jan. 8,
2016)(“Even if the D.C. Circuit were to modify or
vacate the 2015 FCC Order, factual disputes, such as whether
an ATDS was used and whether text recipients provided their
consent, will remain here.”).
due consideration of these factors, the Court determines that
a stay pending the D.C. Circuit's decision ...