Lively v. Caribbean Cruise Lines, Inc.

Filing 25

ORDER denying defendant's 11 Motion to Stay, signed by Judge John A. Mendez on 9/3/14. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOLLY LIVELY, on behalf of
herself and all others
similarly situated,

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Plaintiff,

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No.

2:14-cv-00953 JAM CKD

ORDER DENYING DEFENDANT’S MOTION
TO STAY

v.
CARIBBEAN CRUISE LINE, INC.,
a Florida corporation, and
DOES 1 through 20, inclusive
and each of them,

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Defendants.
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This matter is before the Court on Defendant Caribbean

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Cruise Line, Inc.’s (“Defendant”) Motion to Stay (Doc. #11) this

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action pending resolution of substantially similar actions.

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Plaintiff Holly Lively (“Plaintiff”) opposes Defendant’s motion

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(Doc. #18).

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following reasons, Defendant’s motion is DENIED. 1

Defendant filed a reply (Doc. #20).

For the

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for August 6, 2014.
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I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff is a resident of California.

Compl. ¶ 2.

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Defendant is a Florida corporation with its principal place of

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business in Florida.

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beginning on April 7, 2014, Defendant contacted Plaintiff on her

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cellular telephone three times.

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that each phone call was “an attempt to communicate with

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Plaintiff regarding a cruise.”

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that these phone calls were made using an “automated telephone

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dialing system” and were in violation of the federal Telephone

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Consumer Protection Act (“TCPA”).

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Compl. ¶ 5.

Plaintiff alleges that,

Compl. ¶ 9.

Compl. ¶ 9.

Plaintiff alleges

Plaintiff claims

Compl. ¶ 10.

On April 17, 2014, Plaintiff filed the Complaint (Doc. #1)

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in this Court.

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action: (1) “Violations of the Telephone Consumer Protection Act,

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47 U.S.C. § 227;” and (2) “Willful Violations of the Telephone

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Consumer Protection Act, 47 U.S.C. §227.”

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The Complaint includes the following causes of

Plaintiff brings this action on behalf of herself and all

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others similarly situated, as a member of the following proposed

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class: “All persons within the United States who received any

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telephone calls from Defendant to said person’s cellular

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telephone made through the use of any automatic telephone dialing

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system or an artificial or prerecorded voice and such person had

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not previously provided express consent to receiving such calls

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within the four years prior to the filing of this Complaint.”

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II.

OPINION

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A.

Legal Standard

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A district court has the “inherent power to control the
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disposition of the causes on its docket in a manner which will

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promote economy of time and effort for itself, for counsel, and

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for litigants.”

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1962).

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discretion” of the district court.

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B.

CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir.

The decision to grant or deny a stay is within the “sound
CMAX, 300 F.2d at 268.

Discussion
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Other Pending Actions

With regard to this motion, the primary dispute between
Plaintiff and Defendant is whether the present case is

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“substantially similar” to a number of other pending class

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actions against Defendant.

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motion turns on its claim that Plaintiff’s proposed class is

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substantially similar to the proposed classes in the other

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pending actions, a careful look at the proposed class in each

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case is warranted.

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important differences between Plaintiff’s proposed class

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definition (supra at 2) and those proposed in the other class

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actions against Defendant.

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Mot. at 2; Opp. at 5.

As Defendant’s

As explained below, the Court finds there are

In Bank v. Caribbean Cruise Line, Inc., 1:12-cv-00584-JG-VMS

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(E.D.N.Y.) (hereinafter “Bank II”), the proposed class includes

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“all persons to whose residential telephone lines Defendant

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placed one or more telephone calls using an artificial or

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prerecorded voice that delivered a message . . . during the

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period beginning four years prior to the commencement of this

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action until the present.”

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II is different from the case at bar because it concerns phone

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calls made to residential phones, rather than cellular phones.

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The TCPA makes a clear distinction between the provisions that

Valero Dec., Ex. 1 ¶ 17.

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Thus, Bank

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apply to residential lines and those that apply to numbers

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assigned to a “cellular telephone service.”

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§ 227(b)(1)(A)(iii) (prohibiting calls “to any telephone number

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assigned to a . . . cellular telephone service” unless with

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“prior express consent” or for emergency purposes) with

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§ 227(b)(1)(B) (prohibiting calls to “any residential telephone

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line” unless it is for emergency purposes, with consent, or

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expressly exempted).

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Compare 47 U.S.C.

In Bank v. Caribbean Cruise Line, Inc., 1:12-cv-05572-ENV-

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RML (E.D.N.Y.) (hereinafter “Bank III”), the proposed class

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includes “all persons to whose residential telephone lines CCL,

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or a third party acting with the authorization of CCL, placed one

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or more telephone calls using an artificial or prerecorded voice

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that delivered a message . . . during the period from February 7,

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2012 to the commencement of this action until the present.”

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Valero Dec., Ex. 2 ¶ 18.

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because it concerns calls made to residential, not cellular,

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phone lines.

Thus, Bank III is also dissimilar

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In Birchmeier, et al. v. Caribbean Cruise Line, Inc., et

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al., 1:12-cv-04069 (N.D.Ill.), the most recent proposed class

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definition includes persons to whom “(1) one or more telephone

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calls were made by, on behalf, or for the benefit of the

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Defendants, (2) purportedly offering a free cruise in exchange

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for taking an automated public opinion and/or political survey,

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(3) which delivered a message using a prerecorded or artificial

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voice; (4) between August 2011 and August 2012 . . .” (Wood Dec.,

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Ex. 2 (Plaintiffs’ Supplemental Reply in Support of Class

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Certification) at 2).

Birchmeier is different from the present
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case, due to the alleged offer of a free cruise “in exchange for

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taking an automated public opinion and/or political survey.”

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In this case, Defendant “did not request that Plaintiff take a

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survey or request Plaintiff submit to a political poll.”

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3.

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Amendment concerns which are not relevant in this case.

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Moreover, the limited time frame in Birchmeier would exclude the

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calls to Plaintiff, which occurred in April 2014.

Id.

Opp. at

Accordingly, the Birchmeier case may well touch on First

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Compl. ¶ 9.

In Visser v. Caribbean Cruise Line, Inc., et al., 1:13-cv-

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01029 (W.D. Mich.), the proposed class is defined as follows:

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“All persons residing in any of the United States that are

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holders of residential telephone numbers to which a pre-recorded

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and/or artificial call or message was sent on behalf of

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Defendants advertising or promoting the goods or services of

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Defendants without the prior express consent of the holder (the

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‘Class’).”

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dissimilar to the present case for the same reason as Bank II and

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Bank III: it only includes recipients of residential calls.

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Although the plaintiff in Visser also seeks to represent a

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“Cellular Subclass,” that group is defined as “all members of the

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Class who received the complained of call or message at their

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cellular telephone numbers[.]”

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added).

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residential telephone numbers to which” the call was sent.

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¶ 19.

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member of the Class must have received the relevant call at his

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residential number, not at his cellular telephone number.

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Valero Dec., Ex. 1 ¶ 19.

Accordingly, Visser is

Valero Dec., Ex. 4 ¶ 20 (emphasis

By its own terms, the Class is limited to “holders of
Id.

Therefore, the “Cellular Subclass” is a null set: any

In Jackson v. Caribbean Cruise Line, Inc., et al., CV-145

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2485-ADS-AKT (E.D.N.Y.), the proposed class is defined as all

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persons “who, on or after a date four years prior to the filing

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of this action . . . were sent text message calls by or on behalf

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of defendant Caribbean Cruise Line, Inc.”

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¶ 22.

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it concerns text messages, rather than phone calls.

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Valero Dec., Ex. 5

Thus, Jackson is different from the present case because

Finally, in McCabe v. Caribbean Cruise Line, Inc., et al.,

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1:13-cv-01029-PLM (E.D.N.Y.), the proposed class includes “all

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persons to whose cellular telephone lines or residential

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telephone lines Defendants, or third parties acting with the

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authorization of Defendants, placed one or more “Free Cruise”

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Robocalls . . . during the period from four years prior to the

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commencement of this action until the present[.]”

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Ex. 6 ¶ 7.

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class in McCabe, due to the timing of the phone calls received by

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Plaintiff.

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calls occurring after the complaint was filed would fall outside

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the scope of McCabe.

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term “until the present” is used interchangeably with “until the

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date on which this action is commenced.”

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9.)

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Dec., Ex. 6.

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occurred on April 7, 2014.

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would not be an eligible member of the proposed class in McCabe.

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Valero Dec.,

Plaintiff would likely be excluded from the proposed

By the terms of the complaint in McCabe, any phone

(Throughout the complaint in McCabe, the

Valero Dec., Ex. 6 ¶ 7-

The McCabe complaint was filed on April 3, 2014.

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Valero

Here, Plaintiff alleges that the first phone call
Compl. ¶ 9.

Accordingly, Plaintiff

CMAX Factors

The Ninth Circuit has held that district courts should

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consider the following three factors in evaluating a motion to

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stay: “the possible damage which may result from the granting of
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a stay, the hardship or inequity which a party may suffer in

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being required to go forward, and the orderly course of justice

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measured in terms of the simplifying or complicating of issues,

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proof, and questions of law which could be expected to result

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from a stay.”

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3.

CMAX, 300 F.2d at 268.
Analysis
a.

Harm to Plaintiff if Stay is Granted

Defendant argues that Plaintiff would not be harmed by a
stay, which would “simply delay, for a short period of time,

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Plaintiff’s potential recovery[.]”

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that “a delay in recovering potential monetary damages is not

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sufficient harm to avoid the imposition of a stay.”

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Plaintiff does not directly respond to this argument.

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Mot. at 5.

Defendant argues

Mot. at 5.

It is true that a delay in monetary recovery is minimal harm

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for purposes of the CMAX inquiry.

CMAX, 300 F.2d at 268-69.

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However, the delay sought by Defendant could be substantial.

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two cases which are closest to resolution, Bank III and

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Birchmeier, are least similar to the present case.

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concerns residential phone calls, and Birchmeier concerns

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political polls and a time period two years prior to the calls in

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the case at bar.)

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factual and legal issues raised in these cases, a stay pending

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their result – even if it were relatively brief – would not be

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helpful to the Court or the parties.

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case which is arguably most similar to the present case, was only

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commenced a month before this case.

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of McCabe could stretch on for several years.

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delay would complicate access to evidence and witnesses.

The

(Bank III

Given the significant differences in the

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Conversely, McCabe, the

A stay pending the outcome
Such a lengthy

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Accordingly, the imposition of a stay would result in at least

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some harm to Plaintiff.

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b.

Harm to Defendant if Stay is Denied

Defendant argues that it would be harmed if a stay is

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denied, because “there are approximately seven . . .

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substantially similar class action suits pending against

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[Defendant] for alleged TCPA violations related to telephone

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calls and SMS messages.”

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that the “simultaneous prosecution of these various actions in

Mot. at 5-6.

Defendant further argues

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separate courts before separate judges leads to the very real

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possibility of inconsistent rulings, and subjects the defendants

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and other witnesses to a duplicative burden and expense of

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discovery.”

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recently filed putative class cases against [Defendant] are

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easily distinguishable.”

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Mot. at 6.

Plaintiff responds that “the other

Opp. at 3.

As acknowledged by Defendant, “being required to defend a

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suit, without more, does not constitute a clear case of hardship

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or inequity,” for the purposes of granting a stay.

Lockyer v.

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Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005).

Defendant’s

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contention that “the situation is unique” - because of the large

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number of substantially similar cases pending against it - is not

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persuasive.

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pending cases are not substantially similar to the present case.

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Supra at 3-6.

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between those cases and this case, and the mere fact that

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Defendant has been sued by multiple parties in multiple courts

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does not constitute judicially-cognizable hardship.

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F.3d at 1112.

Mot. at 5.

As discussed in detail above, the other

There are important factual and legal distinctions

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Lockyer, 398

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Moreover, Defendant’s concern over the “possibility of

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inconsistent rulings” should be assuaged by the fact that the

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pending cases are not substantially similar to the present case.

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Mot. at 6.

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this case and other pending cases significantly decrease – if not

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eliminate - the likelihood of inconsistent rulings.

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differing results at the Rule 23 class certification stage would

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be consistent with the differing class definitions proposed in

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each case.

The important legal and factual distinctions between

For example,

Moreover, Defendant’s concern over the “duplicative

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burden of discovery” appears to be overstated.

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discovery in Birchmeier is limited – by the class definition – to

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the time period from August 2011 to August 2012, whereas

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discovery in the present case would focus on calls made in 2014.

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c.

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For example,

Orderly Administration of Justice

With respect to the third CMAX factor, Defendant argues

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that the “orderly administration of justice requires a stay in

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this action.”

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raises the same factual and legal issues as those raised in the

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pending class actions, and that these issues include “who made

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the calls, how any such calls were made, what equipment was used,

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did the equipment constitute ‘automatic telephone dialing

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equipment,’ is [Defendant] liable for telephone calls made by

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third parties, is a class action the proper and superior method

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of resolving these disputes, etc.”

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continues to respond that the present action raises different

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factual and legal issues than the pending class actions.

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3.

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Mot. at 7.

Defendant maintains that this case

Mot. at 7.

Plaintiff

Opp. at

The factual and legal issues identified by Defendant will
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not be identical to those raised in the pending class actions.

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As noted above, the issue of whether “a class action [is] the

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proper and superior method of resolving these disputes”

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necessarily depends on the unique contours of the proposed class

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in each case.

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any such calls were made, what equipment was used, [and] did the

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equipment constitute ‘automatic telephone dialing equipment’”

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will vary significantly by case.

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a different time period than that in Birchmeier, a different form

Moreover, the issues of “who made the calls, how

Plaintiff’s complaint concerns

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of communication (phone calls vs. text messages) than that in

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Jackson, and may well implicate a separate and distinct marketing

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campaign than that seen in any of the other pending actions.

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Similarly, the issue of whether Defendant is “liable for

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telephone calls made by third parties” may vary based on the

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factual circumstances of each case, such as the agreement between

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Defendant and the specific third party caller involved.

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Plaintiff contends that Defendant “enlists the assistance of a

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myriad group of third parties” to make its phone calls.

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2.

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calls may vary by third party caller.

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said that the factual and legal issues raised in the present case

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are substantially similar to those raised in the pending class

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actions.

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avoid duplicative litigation.”

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Dist. v. U. S., 424 U.S. 800, 817 (1976).

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would not be duplicative, a stay is not appropriate.

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Opp. at

If this is true, the issue of Defendant’s liability for those
Accordingly, it cannot be

When considering a stay, “the general principle is to
Colorado River Water Conservation
As this litigation

Finally, Defendant’s argument that this Court should grant a
stay because it is an overburdened district is misplaced.
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Although the Eastern District of California is one of the busiest

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districts in the country, the Ninth Circuit has noted that a

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district court’s “ability to control its own docket, particularly

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in this time of scarce judicial resources and crowded dockets” is

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not, without more, sufficient grounds to impose a stay.

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v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 2005).

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significant differences between the present case and the pending

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class actions, it would be improper to grant Defendant’s request

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for a stay.

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III.

ORDER

For the reasons set forth above, the Court DENIES

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Defendant’s Motion to Stay:

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IT IS SO ORDERED.

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Dated: September 3, 2014

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Lockyer
Given the