United States District Court, S.D. Florida
BILAL SALEH, individually and on behalf of all others similarly situated, will do Plaintiffs,
ME BATH SPA EXPERIENCE, LLC, Defendant.
BLOOM UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court upon
Defendant's Motion to Stay Proceedings Pending a Ruling
by the D.C. Circuit Court of Appeals, ECF No.  (the
“Motion”). The Court has carefully reviewed the
Motion, all opposing and supporting materials, the record in
this case and the applicable law, and is otherwise fully
advised. For the reasons set forth below, the Motion is
INTRODUCTION Plaintiff has filed a putative class
action against Defendant alleging violations of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227(b), for sending text messages using an automatic
telephone dialing system (“ATDS”) to his cellular
telephone without his consent. See ECF No. . The
TCPA makes it unlawful for any person to make “any call
(other than a call made for emergency purposes or made with
the prior express consent of the called party) using any
automatic telephone dialing system . . . to any telephone
number assigned to a . . . cellular telephone service . .
.” 47 U.S.C. § 227(b)(1)(A)(iii). Critical issues
in this case will involve the meaning of “ATDS”
and whether Defendant indeed used an ATDS when contacting
Plaintiff and the putative class members.
Motion, Defendant seeks to temporarily stay these proceedings
until the D.C. Circuit Court of Appeals issues its decision
in the consolidated appeal of ACA International v.
Federal Communications Commission, Case No. 15-1211
(“the D.C. Circuit appeal”). By way of
background, the TCPA defines an ATDS as “equipment
which has the capacity - (A) to store or produce telephone
numbers to be called, using a random or sequential number
generator and (B) to dial such numbers.” 47 U.S.C.
§ 227(a)(1). In 2015, the Federal Communications
Commission (“FCC”) issued a ruling in which it
defined ATDS broadly to include equipment with the
“potential ability” to hold or store telephone
numbers and rejected a definition that would interpret the
word “capacity” to mean “current
capacity” or “present ability.” ECF No. 9-2
at 7. Now on appeal, the D.C. Circuit will consider the
question of whether the FCC “interpreted ATDS in a way
that unlawfully turns on the equipment potential rather than
present abilities, nullifies the statutory
random-or-sequential-number-generation requirement, and
provides inadequate guidance to regulated parties.”
ECF. No. [9-1] at 10. Given the impact the D.C. Circuit's
opinion will have on Plaintiff's claim in this action,
Defendant argues that the case should be temporarily stayed.
See ECF No. . Plaintiff filed a timely Response
and Defendant filed a timely Reply. See ECF Nos.
 and . The Motion is now ripe for review.
district court may stay a case pending the resolution of a
related case before a different court under a variety of
circumstances. Ortega Trujillo v. Conover & Co.
Commc'ns, 221 F.3d 1262, 1264 (11th Cir. 2000). For
example, “[a] stay sometimes is authorized simply as a
means of controlling the district court's docket and of
managing cases before the district court.” Id.
(citing Clinton v. Jones, 520 U.S. 681 (1997).
District courts may consider “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.” Owens-Benniefield v. Nationstar Mortg.
LLC, No. 8:17-CV-540-T-33TGW, 2017 WL 1426720, at *2
(M.D. Fla. Apr. 21, 2017).
district court, in its discretion, stays a case pending the
resolution of related proceedings in another forum,
“the district court must limit properly the scope of
the stay.” Id. Critically, “a stay must
not be ‘immoderate.'” Id. (quoting
CTI-Container Leasing Corp. v. Uiterwyk Corp., 685
F.2d 1284, 1288 (11th Cir.1982)). To determine whether a stay
is “immoderate, ” the Court must consider the
scope of the stay, including its potential duration.
Id. (citing Hines v. D'Artois, 531 F.2d
726, 733 (5th Cir.1976)). “A stay is immoderate and
hence unlawful unless so framed in its inception that its
force will be spent within reasonable limits, so far at least
as they are susceptible of prevision and description.”
Landis v. North American Co., 299 U.S. 248 (1936).
outset, the Court recognizes that, over the last two years,
district courts throughout the country have been confronted
with the precise question presented here - whether the
proceedings should be stayed while awaiting a ruling from the
D.C. Circuit. There is no clear consensus among the courts.
Many courts in TCPA cases have entered a stay, finding that
the D.C. Circuit's opinion will clarify the law, which in
turn will assist the district court in reaching a decision,
that a stay at the early stages will not prejudice the
plaintiff, and that a stay will not be
“immoderate” given the forthcoming ruling.
See Coatney v. Synchrony Bank, No. 616CV389ORL22TBS,
2016 WL 4506315, at *2 (M.D. Fla. Aug. 2, 2016) (“[T]he
Court agrees with recent district court decisions in the
Eleventh Circuit that have found, under similar
circumstances, that a stay pending the resolution of ACA
International is warranted.”) (collecting cases);
Jacobs v. Ocwen Loan Servicing, LLC, No.
16-62318-CIV, 2017 WL 1733855, at *2 (S.D. Fla. Apr. 14,
2017)(“Here, the Court also considers persuasive that
oral arguments in ACA International occurred on
October 19, 2016, and-far from ‘indefinite' or
‘indeterminate'-a decision remains
imminent.”). In this case, the definition of ATDS will
be a threshold issue as Plaintiff's entire claim under
the TCPA is premised upon the use of such a dialing system.
Waiting for a ruling from the D.C. Circuit will benefit both
parties as it will clarify the definition of ATDS. Such a
clarification will assist the Court in adjudicating the
issues, will frame the pertinent discovery for the parties,
and will conserve judicial resources. In addition, the stay
will not prejudice Plaintiff given that the D.C.
Circuit's ruling is imminent, as further explained below,
and this case remains in its beginning stages. In fact, the
Court only issued its Scheduling Order earlier this week,
see ECF No. , and discovery has only recently
directs the Court to opinions from other courts finding that
the requested stay should be denied as immoderate. However,
many of those decisions denied the stay because the D.C.
Circuit appeal was, at that time, in its infancy, making the
length of the stay indeterminate. See Sliwa v. Bright
House Networks, LLC, No. 216CV235FTM29MRM, 2016 WL
3901378, at *4 (M.D. Fla. July 19, 2016) (“First, there
is no indication of when the D.C. Circuit will hear oral
argument in ACA International, let alone issue an
opinion.”); Mancini v. JPMorgan Chase Bank,
N.A., No. 1:15-CV-61524-UU, 2016 WL 1273185, at *1 (S.D.
Fla. Mar. 28, 2016)(opinion issued seven months before oral
argument was held in D.C. Circuit appeal); Leachman v.
Discovery Financial Servs., LLC, No. 15-62120-PAS (S.D.
Fla. Jan. 12, 2016) (“In light of the disputed
relevance of the FCC's July 2015 Order, and the
indeterminate timeline of its appellate review,
Defendant's Motion to Stay pending Appellate review of
the FCC Order is denied.”) (emphasis added).
this Court cannot determine with certainty when the D.C.
Circuit will issue its opinion, Defendant directs the Court
to statistics for last five years revealing the median time
for the issuance of an opinion by the D.C. Circuit. The most
recent statistics compiled by the United States Courts in
September of 2017 reveal that the D.C. Circuit's median
time from the filing of a notice of appeal until the
disposition of the appeal was 11.9 months. See
(last visited Jan. 11, 2018). The D.C. Circuit heard oral
argument in ACA International fifteen months ago on
October 19, 2016. See ECF No. [9-3]. This does not
account for the number of months the appeal was fully briefed
and pending prior to oral argument. Given the median
timeframe for the D.C. Circuit's issuance of opinions and
the length of time the appeal has been fully briefed with the
benefit of oral argument, this Court concludes that a
decision is imminent and any stay of these proceedings is
likely to be brief.
to the Motion, Plaintiff also argues that a stay would be
immoderate because the parties to the D.C. Circuit appeal
will likely challenge the decision at the Supreme Court level
and such a challenge will lead to an indeterminate stay. In
support of this argument, Plaintiff cites to several
decisions finding that a stay would be immoderate given the
possibility of further appellate review. See
Owens-Benniefield, 2017 WL 1426720, at *2; Terec v.
Reg'l Acceptance Corp., No. 8:16-CV-2615-T-30MAP,
2017 WL 662181, at *2 (M.D. Fla. Feb. 17, 2017). However, in
its Reply, Defendant stipulates that the requested stay is
only until the D.C. Circuit issues its opinion.
See ECF No.  at 4. Defendant does not ask the
Court to expand the stay to future hypothetical proceedings
at the Supreme Court level and this Court declines any
invitation to speculate as to whether the parties in the D.C.
Circuit appeal will seek further review and the impact such
hypothetical proceedings will have on this lawsuit.
Court also notes that several of the cases upon which
Plaintiff relies are factually distinguishable in that they
involved additional claims unrelated to the D.C. Circuit
appeal. For example, in Owens-Benniefield, the
plaintiff stated a claim under the TCPA for calls made by an
ATDS and calls using an artificial and prerecorded
voice in addition to claims under the Fair Debt
Collection Practices Act and the Fair Credit Reporting Act.
2017 WL 1426720, at *2. Because the outcome of the D.C.
Circuit appeal would not impact the plaintiff's alternate
TCPA claim or other statutory claims, the
Owens-Benniefield court found this weighed against a
stay. Id. Similarly, in Terec, the
plaintiff alleged violations of the TCPA for use of an ATDS
and a pre-recorded voice. See 2017 WL
662181, at *2. The district court determined that the D.C.
Circuit's ruling was not dispositive as the alternate
TCPA claim involving the use of a prerecorded voice remained
intact regardless of the appeal's outcome. Id.
Here, Plaintiff advances one theory of liability - Defendant
allegedly violated the TCPA by using an ATDS. See
ECF No. . Thus, the D.C. Circuit's ruling will
directly impact this case regardless of the appellate
court's decision as it will certainly clarify the
definition of ATDS.
as an additional basis to deny the stay, Plaintiff directs
the Court to three decisions from the Middle District of
Florida and argues that a stay would violate the Hobbs Act.
“The Hobbs Act . . . expressly confers on the federal
courts of appeals ‘exclusive jurisdiction to enjoin,
set aside, suspend (in whole or in part), or to determine the
validity of' such FCC orders.” Mais v. Gulf
Coast Collection Bureau, Inc., 768 F.3d 1110, 1119 (11th
Cir. 2014). In these decisions, the district courts declined
to stay the proceedings, finding a stay would “amount
to a constructive refusal to enforce the FCC's
interpretation [of the ATDS definition], which this Court is
prohibited from doing.” Williams v. Bluestem
Brands, Inc., No. 8:17-CV-1971-T-27AAS, 2017 WL 6507226,
at *1 (M.D. Fla. Dec. 15, 2017); see also Sliwa v. Bright
House Networks, LLC, No. 216CV235FTM29MRM, 2016 WL
3901378, at *4 (M.D. Fla. July 19, 2016) (“Granting a
stay premised on the contention that the FCC got it wrong
could, in fact, amount to a constructive ‘refus[al] to
enforce an FCC interpretation . . .'”). These
decisions rely upon the Eleventh Circuit's opinion in
Mais, which found that a district court violated the
Hobbs Act when it declared that a 2008 FCC ruling was
inconsistent with the TCPA. Unlike Mais, the Hobbs
Act is not implicated here as this Court is not commenting
upon or opining upon the validity of the FCC's
interpretation and definition of ATDS. Likewise, this Court
is not refusing to enforce the FCC's interpretation of
ATDS. Instead, the Court is briefly staying the case given
the imminence of the D.C. Circuit's decision and the
benefit that such clarification will provide the Court and