State of Maryland v. Universal Election
Filing
AMENDING ORDER/OPINION filed [999182692] amending and superseding Unpublished per curiam Opinion [999160769-2]. Motion disposition in opinion--granting Motion to publish opinion/order (Local Rule 36(b)) [999163683-2] Originating case number: 1:10-cv-03183-CCB Copies to all parties.. [12-1791]
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Filed:
August 28, 2013
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1791
(1:10-cv-03183-CCB)
STATE OF MARYLAND, Office of the Attorney General,
Plaintiff - Appellee,
UNITED STATES OF AMERICA,
Intervenor/Plaintiff – Appellee,
v.
UNIVERSAL ELECTIONS, INCORPORATED; JULIUS HENSON,
Defendants – Appellants,
and
RHONDA RUSSELL,
Defendant.
O R D E R
Upon
the
Motion
to
Publish
Opinion
filed
by
the
Intervenor/Plaintiff – Appellee the United States of America,
and the responses in support of publication,
IT IS ORDERED that the Motion to Publish is granted.
The
follows:
Court
amends
its
opinion
filed
July
29,
2013,
as
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On the cover sheet, section 1 -- the status is changed from
“UNPUBLISHED” to “PUBLISHED.”
On the cover sheet, section 6 -- the status line is changed
to read “Affirmed by published opinion.”
is added:
The following sentence
“Judge Norton wrote the opinion, in which Judge King
and Judge Agee joined.”
On
page
2
-–
the
reference
to
the
use
of
unpublished
opinions as precedent is deleted.
On page 3 -– the heading “PER CURIAM” is deleted and is
replaced with “NORTON, District Judge.”
For the Court – By Direction
/s/ Patricia S. Connor
Clerk
2
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1791
STATE OF MARYLAND, Office of the Attorney General,
Plaintiff - Appellee,
UNITED STATES OF AMERICA,
Intervenor/Plaintiff – Appellee,
v.
UNIVERSAL ELECTIONS, INCORPORATED; JULIUS HENSON,
Defendants – Appellants,
and
RHONDA RUSSELL,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:10-cv-03183-CCB)
Argued:
May 15, 2013
Decided:
July 29, 2013
Before KING and AGEE, Circuit Judges, and David C. NORTON,
United States District Judge for the District of South Carolina,
sitting by designation.
Affirmed by published opinion. Judge Norton wrote the opinion,
in which Judge King and Judge Agee joined.
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ARGUED:
Edward Smith, Jr., LAW OFFICE OF EDWARD SMITH, JR.,
Baltimore, Maryland, for Appellants.
William D. Gruhn, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; Mark
R. Freeman, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees.
ON BRIEF:
Douglas F. Gansler, Attorney
General, Philip D. Ziperman, Assistant Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellee State of Maryland.
Rod J. Rosenstein, United States
Attorney, Stuart F. Delery, Acting Assistant Attorney General,
Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for the United States.
2
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NORTON, District Judge:
Political
consultant
Julius
Henson
and
his
company,
Universal Elections, Inc., appeal the district court’s grant of
summary judgment to the State of Maryland (“the State”) on its
claim that Henson and Universal Elections violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (2010) (“the TCPA” or
“the Act”).
For the reasons set forth below, we affirm the
district court’s decision in all respects.
I.
Though the district court ably summarized the facts in its
summary judgment order, we briefly restate them here.
months
before
the
2010
Maryland
gubernatorial
Three
election,
the
political campaign of Republican candidate Robert L. Ehrlich,
Jr.
hired
Henson
campaign’s efforts.
and
Universal
Elections
to
assist
with
the
J.A. 487. 1
On Election Day, November 2, 2010, Henson and Universal
Elections employee Rhonda Russell composed and prepared a prerecorded telephone call, also known as a “robocall,” as part of
their work for the Ehrlich campaign.
Id.
That pre-recorded
telephone call (“the election night robocall”) stated, in its
entirety:
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
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Hello. I’m calling to let everyone know that Governor
O’Malley and President Obama have been successful.
Our goals have been met.
The polls were correct and
we took it back.
We’re okay.
Relax.
Everything is
fine.
The only thing left is to watch it on TV
tonight. Congratulations and thank you.
J.A. 487-88.
The election night robocall neither identified the
Ehrlich campaign as the sponsor of the message nor included the
campaign’s phone number.
J.A. 488.
Henson dictated the contents of the election night robocall
to Russell and directed Russell to omit an authority line that
would have identified the Ehrlich campaign as the source of the
message.
it,
J.A. 488.
along
with
two
Russell recorded the message and uploaded
lists
containing
the
phone
numbers
for
Maryland Democratic voters, to the website of a Pennsylvaniabased automatic dialing service called Robodial.org, LLC.
Id.
After sending test messages to Henson and to Ehrlich staffers,
Russell authorized Robodial.org to deliver the election night
robocall to the phone numbers included on the uploaded lists.
Id.
Robodial.org sent the election night robocall to more than
112,000 Maryland Democratic voters through an account maintained
by Universal Elections.
Of
the
roughly
J.A. 487-88.
112,000
calls
voters received the entire message.
that
J.A. 488.
recipients received part of the message.
calls failed or went unanswered.
Id.
4
were
Id.
placed,
69,497
Another 16,976
The remaining
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On
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10,
November
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State
2010,
the
filed
a
civil
lawsuit
against Henson, Russell, and Universal Elections for violations
of the TCPA.
defendants
J.A. 10.
had
Specifically, the State alleged that the
violated
the
Act
by
failing
to
identify
the
Ehrlich campaign as the sponsor of the election night robocall.
J.A. 14.
On
December
Elections moved
15,
to
Supp. App. 1-15.
December
28,
2010,
dismiss
Henson,
the
Russell,
State’s
complaint.
After
their
Universal
J.A.
16;
In a supplemental motion to dismiss filed on
2010,
they
argued
that
the
implementing regulations were unconstitutional.
51.
and
defendants
supplemental
asserted
motion
to
a
First
TCPA
the
its
Supp. App. 45-
Amendment
dismiss,
and
defense
United
in
States
intervened in this case to defend the constitutionality of the
TCPA.
J.A. 43-45.
defendants’
motion
content-neutral
On May 25, 2011, the district court denied
to
dismiss,
speech
holding
regulation
that
that
the
survives
TCPA
is
a
intermediate
constitutional scrutiny, and finding defendants’ other arguments
unavailing.
J.A. 96-108.
On May 11, 2011, shortly before the district court denied
defendants’ motion to dismiss, Henson, Russell, and Universal
Elections moved to stay the proceedings pending the resolution
of
related
state
district court
criminal
determined
investigations.
that
the
5
motion
J.A.
to
92-93.
stay
would
The
not
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affect its ruling on the motion to dismiss, and addressed the
motion to stay after denying the motion to dismiss.
148.
J.A. 95,
On July 7, 2011, the court denied the motion to stay,
noting that:
Other than unfounded attacks on the motives of the
Attorney General, the defendants have not explained
why a blanket stay of this action is warranted by the
existence of a partially parallel criminal indictment
brought by the State Prosecutor. . . . The motion to
stay as filed is overbroad and is Denied.
J.A. 148 (emphasis and capitalization in original).
On March 15, 2012, the State moved for summary judgment.
Supp. App. 52-75.
for
summary
Defendants did not oppose the State’s motion
judgment,
and
the
district
unopposed motion on May 29, 2012.
court
J.A. 487-94.
granted
the
The court
explained that the record unambiguously supported a finding that
defendants had violated the TCPA:
Universal Elections, by and through both Russell and
Henson, drafted and sent a message that failed to
include the disclosure information required by [the
TCPA].
As Russell’s testimony makes clear, both she
and Henson were directly and personally involved in
the creation of the offending message. . . . [T]he
documentary evidence in the record and the deposition
testimony of Russell and Ehrlich staffers establish
without any doubt that Henson discussed plans to
suppress the votes of African-American Democrats,
recorded the plan in the strategy memo sent to the
Ehrlich
campaign,
and
ultimately
dictated
and
authorized the offending message.
Thus, both Henson
and Russell, in addition to Universal Elections, may
be held jointly and severally liable for any damages
this court may award under the TCPA.
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J.A. 490.
State
in
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The district court entered judgment on behalf of the
the
amount
of
$10,000
against
Russell,
and
in
the
amount of $1,000,000 against Henson and Universal Elections.
Henson and Universal Elections timely filed a notice of
appeal on June 22, 2012. We have jurisdiction under 28 U.S.C.
§ 1291.
II.
We
review
de
novo
the
constitutionality
of
a
federal
statute and its implementing regulations, United States v. Sun,
278 F.3d 302, 308-09 (4th Cir. 2002); the denial of a motion to
dismiss, Brockington v. Boykins, 637 F.3d 503, 505 (4th Cir.
2011);
and
the
grant
of
an
unopposed
motion
for
summary
judgment, Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).
The grant or denial of a request to stay proceedings calls for
an exercise of the district court’s judgment “to balance the
various factors relevant to the expeditious and comprehensive
disposition
of
the
causes
of
action
on
the
court's
docket.”
United States v. Ga. Pac. Corp., 562 F.2d 294, 296 (4th Cir.
1977).
an
As such, we review the denial of a motion to stay under
abuse-of-discretion
standard.
Id.
at
297;
Chase
Brexton
Health Servs., Inc. v. Maryland, 411 F.3d 457, 464 (4th Cir.
2005).
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III.
Henson and Universal Elections raise four issues on appeal. 2
Appellants assert that the district court erred by: (1) finding
that the TCPA is not unconstitutional when applied to political
robocalls;
denying
(2)
denying
defendants’
resolution
of
a
defendants’
motion
related
to
stay
state
motion
to
dismiss;
(3)
pending
the
proceedings
court
criminal
case;
granting summary judgment in favor of the State.
and
(4)
We address
these arguments in turn.
A.
With
regard
to
the
constitutionality
of
the
TCPA,
appellants appear to argue that § 227(d) “violates the First
Amendment
because
it
is
a
content-based
burden
speech” that cannot withstand strict scrutiny.
12 n.6.
on
political
Appellants’ Br.
When evaluating whether a regulation violates the First
Amendment,
“the
most
exacting
scrutiny”
is
applied
to
regulations “that suppress, disadvantage, or impose differential
burdens
upon
speech
because
of
its
content.”
Turner
Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994).
regulations
that
are
unrelated
to
the
content
Broad.
“In contrast,
of
speech
are
subject to an intermediate level of scrutiny, because in most
cases
2
they
pose
a
less
substantial
risk
of
excising
certain
Russell does not appeal the district court’s ruling.
8
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ideas
or
viewpoints
from
Clark
v.
Cmty.
Creative
(1984)).
for
“[L]aws
that
the
Pg: 11 of 22
public
dialogue.”
Non-Violence,
confer
benefits
Id.
468
or
U.S.
impose
(citing
288,
293
burdens
on
speech without reference to the ideas or views expressed are in
most instances content neutral.”
The
TCPA
and
its
Id. at 643.
implementing
regulations
require
that
automated, prerecorded messages identify the entity sponsoring
the phone call and provide that entity’s telephone number.
U.S.C. § 227(d)(1), (3)(A); 47 C.F.R. § 64.1200(b) (2008).
identity
content
disclosure
of
the
requirement
message
that
is
applies
relayed
regardless
to
the
of
47
This
the
recipient.
§ 227(d)’s requirements do not place any greater restriction on
a particular group of people or form of speech, and do not
burden appellants – or entities engaging in political speech –
any more than any other person or group placing robocalls.
The
district court properly determined that the TCPA is a contentneutral law to which intermediate scrutiny must be applied.
A content-neutral law that regulates speech is valid if “it
furthers an important or substantial governmental interest . . .
[that] is unrelated to the suppression of free expression; and
if
the
incidental
restriction
on
alleged
First
Amendment
freedoms is no greater than is essential to the furtherance of
that interest.”
(1968).
United States v. O’Brien, 391 U.S. 367, 377
“To satisfy this standard, a regulation need not be the
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speech-restrictive
interests.”
simply
of
advancing
Turner, 512 U.S. at 662.
cannot
necessary
means
Pg: 12 of 22
to
“burden
further
Government's
Instead, the regulation
substantially
the
the
more
government's
speech
legitimate
than
is
interests.”
Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989)).
There
are
at
least
furthered
by
the
protecting
residential
three
TCPA’s
important
identity
privacy;
government
disclosure
promoting
disclosure
interests
provision:
to
avoid
misleading recipients of recorded calls; and promoting effective
law enforcement.
J.A. 104-107.
The TCPA protects residential
privacy – a government interest articulated in the legislative
history of the Act – by enabling the recipient to contact the
caller to stop future calls.
U.S.C.
§
227(d).
See S. Rep. No. 102-178, at 1; 47
Moreover,
the
Supreme
Court
has
long
“recognized that ‘[p]reserving the sanctity of the home, the one
retreat to which men and women can repair to escape from the
tribulations of their daily pursuits, is surely an important
value.’”
Frisby v. Schultz, 487 U.S. 474, 484 (1988) (quoting
Carey v. Brown, 447 U.S. 455, 471 (1980)); see also Nat’l Fed’n
for the Blind v. F.T.C., 420 F.3d 331, 339-40 (4th Cir. 2005)
(“Nat’l Fed’n for the Blind”) (finding that residential privacy
is
“a
substantial
government
interest
process is entitled to protect”).
10
that
the
democratic
The Act is narrowly tailored
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to protect this interest by requiring only that callers identify
themselves and a phone number at which they can be reached.
Cf.
Nat’l Fed’n for the Blind, 420 F.3d at 342-43 (finding that
caller
identification
provision
of
the
Federal
Trade
Commission’s Telemarketing Sales Rule is a narrowly tailored,
minimal restriction that simply allows consumers to “pre-select
whom they wish to speak to on a particular evening”).
The
Act
also
promotes
disclosure
recipients of prerecorded calls.
provision
obliges
callers
responsible for the call.
to
to
avoid
misleading
The TCPA’s identity disclosure
state
the
name
of
the
entity
This disclosure allows the recipient
to better evaluate the content and veracity of the message.
See
Riley v. Nat’l Fed’n for the Blind of N.C., 487 U.S. 781, 792
(1988) (“The interest in protecting charities (and the public)
from fraud is, of course, a sufficiently substantial interest to
justify
a
narrowly
requirement
that
tailored
robocall
regulation.”).
sponsors
identify
The
themselves
narrowly tailored to protect citizens from fraud.
Fed’n
for
the
Blind,
420
F.3d
at
342-43
TCPA’s
is
Cf. Nat’l
(upholding
as
constitutional a government regulation requiring telefunders to
transmit their name and phone number to caller ID services).
Finally,
the
TCPA’s
identity
disclosure
provision
also
promotes effective law enforcement by assisting the government
in
detecting
violations.
See
J.A.
11
91
(affidavit
of
Federal
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Communications Commission enforcement official stating that “the
two identification requirements for prerecorded messages . . .
play a central role in allowing called parties to accurately
report the parties who are responsible for specific violations,
thereby assisting the Commission in taking enforcement action
after
complaints
are
received”).
Again,
the
Act’s
identification provision is narrowly tailored to accomplish the
goal
of
assisting
law
enforcement;
the
provision
places
a
minimal burden on callers to identify themselves and how they
can be contacted.
The
district
court
correctly
identified
these
three
important government interests, found that the Act is a contentneutral regulation that furthers important government interests
unrelated
to
free
expression,
and
held
that
the
TCPA’s
restrictions do not burden substantially more speech than is
necessary to protect those interests.
Appellants have failed to
present a comprehensible argument to the contrary.
For these
reasons, we affirm the district court’s finding that the TCPA’s
identity disclosure provisions are constitutional.
B.
To argue that the district court improperly denied their
motion
to
dismiss,
appellants
reiterate
the
same
convoluted
arguments made in their December 2011 motion to dismiss.
12
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surprisingly,
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these
arguments
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meet
with
the
same
amount
of
success that they received in the district court.
Appellants
assert
that
the
complaint
should
have
been
dismissed because it fails to allege that the election night
robocall was received by any Maryland citizen.
misses the mark.
This argument
The complaint alleges that “the prerecorded
voice message . . . was broadcast to the phone numbers of more
than 112,000 Maryland residents chosen by Defendants.”
¶ 15
(emphasis
added).
This
allegation
Compl.
sufficiently
alleges
that defendants placed the election night robocall to Maryland
citizens and that Maryland citizens received the call.
The TCPA
does not require state attorneys general to identify particular
phone call recipients by name.
Appellants next contend that Congress’ failure to pass “the
Robocall
Privacy
Congress
has
Act
chosen
Appellants’ Br. 20-21.
of
2006,
2007,
and
not
to
regulate
2008”
shows
political
that
robocalls.
Appellants’ argument is unavailing.
The
fact that Congress has not passed legislation that specifically
addressed political robocalls does not lessen in any way the
scope and applicability of the TCPA.
The Act’s plain language
demonstrates that it applies to all prerecorded phone calls,
including
§ 227(d)(3)
those
(the
with
a
political
restrictions
of
message.
See
§
apply
227(d)
artificial or prerecorded telephone messages”).
13
47
to
U.S.C.
“all
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By referring repeatedly to Maryland agency law, appellants
also attempt to argue that Henson and Russell cannot be held
liable
under
the
TCPA.
Appellants’
Br.
21-22.
However,
Maryland’s approach to the doctrine of respondeat superior does
not
affect
the
scope
of
liability
contemplated
by
the
TCPA.
Additionally, the TCPA’s language makes clear that individuals
can be sued under the Act.
§ 227(d) prohibits “any person” from
violating the authority identification requirements contained in
the Act, and empowers state attorneys general to bring action
against “any person” who violates the Act.
See also Balt.-Wash.
Tel. Co. v. Hot Leads Co., 584 F. Supp. 2d 736, 745 (D. Md.
2008) (finding that individuals could be held personally liable
for TCPA violations); Texas v. Am. Blastfax, Inc., 164 F. Supp.
2d 892, 898 (W.D. Tex. 2001) (same); Covington & Burling v.
Int’l Mktg. & Research, Inc., No. 01-cv-4360, 2003 WL 21384825,
at *6 (D.C. Super. Ct. Apr. 17, 2003) (same).
Appellants also contend that the election night robocall
cannot
violate
the
TCPA
because
it
was
a
single
phone
call
placed to multiple recipients, not multiple phone calls made to
the
same
recipients
over
time.
Appellants’
Br.
22-23.
Appellants cite no authority in support of this proposition, and
the TCPA contains no requirement that multiple calls be made to
the
same
person.
Indeed,
§
14
227(d)(1)(A)
prohibits
“any
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telephone call” that fails to comply with the Act’s technical
and procedural standards.
Appellants assert that they cannot be liable under the TCPA
because they did not actually place any of the offending phone
calls.
Appellants’
Br.
23.
Rather,
they
suggest
that
Robodial.org, the autodialing company that placed all the phone
calls at appellants’ direction, must bear the responsibility for
violating the Act.
Id.
As with many of their other arguments,
appellants cite no authority for the proposition that only the
autodialer that places the improper calls can be held liable
under
the
purpose
escape
TCPA.
of
Such
the
Act
liability.
a
narrow
reading
and
would
allow
In
addition,
the
the
would
actual
language
undermine
violators
of
the
the
to
Act
indicates that it is intended to apply to the individuals who
use the autodialing systems that place calls, and not just to
the autodialing services themselves.
(“It
shall
be
unlawful
for
any
See 47 U.S.C. § 227(d)(1)
person
.
.
.
to
make
any
telephone call using any automatic telephone dialing system[]
that does not comply with the technical and procedural standards
prescribed under this subsection . . . or to use any . . .
automatic telephone dialing system in a manner that does not
comply
with
the
standards.”).
Robodial.org’s
terms
of
use
reinforce this interpretation of the Act, as those terms state
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the
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[TCPA].”
“[c]ustomer
is
Pg: 18 of 22
responsible
for
compliance
with
the
argument
that
the
J.A. 488.
Finally,
appellants
make
a
cursory
complaint should have been dismissed because Robodial.org was
not joined as a party under Federal Rule of Civil Procedure 19.
Appellants’ Br. 24.
Federal Rule of Civil Procedure 19(a)(1)
provides:
A person who is subject to service of process and
whose joinder will not deprive the court of subjectmatter jurisdiction must be joined as a party if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person's absence may:
(i) as a practical matter impair or impede
person's ability to protect the interest; or
the
(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.
When a person “who is required to be joined if feasible cannot
be joined, the court must determine whether, in equity and good
conscience, the action should proceed among the existing parties
or should be dismissed.”
Fed. R. Civ. P. 19(b).
The State’s failure to include Robodial.org as a defendant
in this case did not affect the district court’s ability to
adjudicate
Universal
the
claims
Elections.
raised
against
Robodial.org’s
16
Henson,
absence
Russell,
from
the
and
case
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neither impairs its ability to protect its interest nor leaves
the existing parties “subject to a substantial risk of incurring
double, multiple, or otherwise inconsistent obligations because
of the interest.”
In
summary,
Fed. R. Civ. P. 19(a)(1)(B).
appellants
have
failed
to
demonstrate
their motion to dismiss should have been granted.
that
Rather, the
district court properly evaluated and denied defendants’ motion
to dismiss.
C.
Appellants next suggest that the district court erred by
denying their motion to stay the proceedings pending resolution
of partially parallel criminal proceedings.
This argument also
fails.
“[T]he
power
to
stay
proceedings
is
incidental
to
the
power inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for itself,
for counsel, and for litigants.”
248, 254 (1936).
regulatory
jurisprudence
laws
Landis v. N. Am. Co., 299 U.S.
“Because of the frequency with which civil and
overlap
contemplates
with
the
criminal
possibility
of
laws,
American
simultaneous
or
virtually simultaneous parallel proceedings and the Constitution
does not mandate the stay of civil proceedings in the face of
criminal
proceedings.”
Ashworth
v.
F.R.D. 527, 530 (S.D. W. Va. 2005).
17
Albers
Med.,
Inc.,
229
Stays generally are not
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granted before an indictment has issued.
Id. at 531 n.3 (citing
Trs. of Plumbers & Pipefitters Nat’l Pension Fund v. Transworld
Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y. 1995)); State
Farm Mut. Auto. Ins. Co. v. Beckham-Easley, No. 01-cv-5530, 2002
WL 31111766, at *2 (E.D. Pa. Sept. 18, 2002) (quoting Walsh
Sec., Inc. v. Cristo Prop. Mgmt., Ltd., 7 F. Supp. 2d 523, 527
(D.N.J. 1998)); In re Par Pharm., Inc. Sec. Litig., 133 F.R.D.
12, 13 (S.D.N.Y. 1990).
The district court’s denial of defendants’ motion to stay
is in keeping with the bulk of judicial authority, which holds
that stays are generally not granted before indictments have
issued.
The court’s decision to deny the motion to stay was
particularly appropriate where, as here, the motion was devoid
of any facts or legal argument.
The defendants’ two-page motion
to stay the proceedings simply stated that they believed that at
least
two
grand
juries
had
been
convened
for
which
Henson,
Russell, and Universal Elections were targets and that “[t]he
use of witnesses who are/may be indicted by government action
both at that federal and state level triggers substantial Fifth
Amendment issues.”
identify
any
J.A. 92-93.
particular
Fifth
The motion to stay did not
Amendment
conflict
that
had
arisen, or explain how the convening of two grand juries had
jeopardized
the
constitutionality
proceedings.
The district court wisely chose to delay ruling on
18
of
the
pending
civil
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any Fifth Amendment issues until those issues had been properly
identified and fully briefed.
Denial of the motion to stay was
therefore not an abuse of the court’s discretion.
D.
Finally, appellants argue that the district court erred by
granting
summary
respond
to
judgment
the
to
State’s
the
State.
motion
Defendants
for
summary
did
not
judgment.
Nevertheless, the district court thoroughly analyzed the motion,
as it was obligated to do.
599
F.3d
403,
409
n.8
(4th
Robinson v. Wix Filtration Corp.,
Cir.
2010)
(“[I]n
considering
a
motion for summary judgment, the district court ‘must review the
motion, even if unopposed, and determine from what it has before
it whether the moving party is entitled to summary judgment as a
matter of law.’”) (quoting Custer v. Pan Am. Life Ins. Co., 12
F.3d 410, 416 (4th Cir. 1993)) (emphasis in original).
Because appellants did not respond to the State’s summary
judgment motion, the following facts were uncontroverted: (1)
Henson and Russell, as political consultants employed by the
Ehrlich gubernatorial campaign, wrote and recorded the election
night robocall; (2) the call did not disclose the name or phone
number of the message’s sponsor; (3) Henson directed Russell to
omit from the message a line explaining who had authorized the
message; (4) Russell – perhaps mistakenly – also omitted the
phone
number
of
the
message’s
sponsor
19
from
the
message;
(5)
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through an account maintained by Universal Elections, Russell
uploaded
the
message,
along
with
two
lists
of
Maryland
Democratic voters, to the website of automatic dialing system
Robodial.org;
(6)
Russell
then
commenced
the
calls
through
Robodial.org; (7) the election night robocall was delivered to
approximately 112,000 Democratic voters in Baltimore City and
Prince
George’s
County;
(8)
at
least
69,497
call
recipients
received the entire recorded message contained in the election
night robocall; and (9) at least 16,976 call recipients received
part of the message.
Supp. App. 56, 59-61.
These facts clearly establish that appellants created and
distributed
the
election
night
robocall,
which
failed
to
identify either the message’s sponsor or a phone number at which
the sponsor could be reached.
This is sufficient to establish
appellants’ liability under the TCPA, and the district court did
not err in granting summary judgment in favor of the State.
IV.
For the foregoing reasons, we affirm the rulings of the
district judge in all respects.
AFFIRMED
20
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