Hiemstra v. Credit One Bank

Filing 21

ORDER signed by District Judge John A. Mendez on 09/14/17 DENYING defendant's 15 Motion to Stay; Defendant's Counsel is SANCTIONED $250 for violating this Court's Filing Requirements Order to be paid within 5 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RHONDA HIEMSTRA,

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2:16-cv-02437-JAM-EFB

Plaintiff,

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No.

v.

ORDER DENYING DEFENDANT’S MOTION
TO STAY

CREDIT ONE BANK,
Defendant.
The pending D.C. Circuit opinion in ACA International v.

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Federal Communications Commission has garnered considerable

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attention in the last year.

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Consumer Protection Act cases have moved to stay their cases

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pending a decision in ACA International.

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disagree on what to do: Some courts have granted stay requests;

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others have denied them.

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joins the latter and DENIES Defendant Credit One Bank’s motion to

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stay. 1

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///

Many defendants in Telephone

District courts

For reasons explained below, this Court

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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 29, 2017.
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I.

BACKGROUND

Plaintiff Rhonda Hiemstra sues Defendant Credit One Bank,

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seeking damages under the Telephone Consumer Protection Act

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(“TCPA”), 47 U.S.C. § 227 et seq., and California’s Rosenthal

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Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ.

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Code § 1788 et seq.

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Defendant used an automatic telephone dialing system (“ATDS”) or

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artificial or prerecorded voice technology to call Plaintiff

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several times within the last year to collect a debt.

See Compl., ECF No. 1.

Plaintiff alleges

See id.

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¶¶ 8, 13, 17.

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whose telephone number had been reassigned to Plaintiff.

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¶¶ 7-9.

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But this debt belonged to a different individual
See id.

Plaintiff claims Defendant made these calls without her

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consent, see id. ¶¶ 20-21, and that Defendant “bombarded [her]

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with multiple calls per day,” even after she had “directed

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[Defendant] to stop calling,” id. ¶¶ 12-13.

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Plaintiff alleges, violates the TCPA’s prohibition on placing

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non-emergency phone calls using an ATDS or an artificial or

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prerecorded voice without having first obtained the called

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party’s prior express consent, see id. ¶¶ 17, 20-21, 25, and

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constitutes abusive and harassing behavior in connection with

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debt collection under section 1788 of the Rosenthal Act, see id.

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¶¶ 15, 29.

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This conduct,

More than eight months after Plaintiff filed her complaint,

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Defendant now moves to stay this case.

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contends a stay is warranted pending the D.C. Circuit’s opinion

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in ACA International, No. 15-1211, and the Ninth Circuit’s

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opinion in Marks v. Crunch San Diego, LLC, No. 14-56834, which
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ECF No. 15.

Defendant

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the Ninth Circuit has stayed pending the ACA International

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decision.

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Mot. at 1-2.

Defendant argues that, given the overlapping issues between

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ACA International and those here, this Court should stay the

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proceedings because “[t]he specter of costly discovery and

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litigating issues that may be moot soon presents an undue burden

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on Defendant.”

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“not be fooled by Defendant’s attempt to complicate the issues,”

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for “this is a straight forward [sic] case.”

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Mot. at 7.

Plaintiff opposes, urging this Court

Opp’n, ECF No. 18,

at 2.

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The Court recognizes that the FCC issued a ruling in 2015

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interpreting various TCPA provisions, In the Matter of Rules &

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Regulations Implementing the Telephone Consumer Protection Act of

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1991, 30 F.C.C. Rcd. 7961 (July 10, 2015) (“FCC 2015 Order”), a

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ruling the D.C. Circuit is now reviewing.

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D.C. Circuit is addressing whether the FCC properly defined ATDS

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as equipment having not only the present capacity to dial

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sequentially or randomly, but also the potential capacity to do

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so.

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caller making a call subject to the TCPA to a number reassigned

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from the consumer who gave consent for the call to a new consumer

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is liable for violating the TCPA.”

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favorable decision in ACA International, Defendant asks this

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Court to stay these proceedings.

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this request.

Id. at 7972.

As relevant here, the

The D.C. Circuit is also reviewing “whether a

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II.

Id. at 7999.

Hoping for a

Plaintiff vehemently opposes

OPINION

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A.

Judicial Notice

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Defendant requests this court judicially notice the Second
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Amended Petition for Review in ACA International, the appellate

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docket in Marks, and orders granting stay requests in Bowden v.

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Contract Caller, Inc., No. 16-2v-06171-MMC, 2017 WL 1732017

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(N.D. Cal. Apr. 5, 2017); Roark v. Credit One Bank, 16-cv-173;

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and Kristensen v. Credit One Bank, 14-cv-7963.

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for Judicial Notice, ECF No. 16.

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a court may judicially notice judicial proceedings and orders,

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see Rosales-Martinez v. Palmer, 753 F.3d 890, 894-95 (9th Cir.

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2014), the Court grants Defendant’s judicial notice request.

Def.’s Request

Because it is well established

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B.

Legal Standard

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“[T]he power to stay proceedings is incidental to the power

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inherent in every court to control the disposition of the causes

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on its docket with economy of time and effort for itself, for

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counsel, and for litigants.”

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248, 254 (1936).

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deciding whether to grant a stay, considering factors such as

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“the possible damage which may result from the granting of a

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stay, the hardship or inequity which a party may suffer in being

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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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1962) (citing Landis, 299 U.S. at 254-55).

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circumstances will a litigant in one cause be compelled to stand

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aside while a litigant in another settles the rule of law that

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will define the rights of both.”

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moving party has the burden to show that a stay is appropriate.

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See Clinton v. Jones, 520 U.S. 681, 708 (1997).

Landis v. N. Am. Co., 299 U.S.

The court must use sound discretion when

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

Landis, 299 U.S. at 255.

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The

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C.

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In order to have its request for a stay granted, Defendant

Analysis

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here must establish that under the specific claims, issues and

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facts involved in this action, a stay will result in judicial

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efficiency, will not prejudice Plaintiff, and that denying

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Defendant’s request will impose hardship and inequity on

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Defendant.

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As discussed below, Defendant has not done so.
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Judicial Efficiency

Defendant leads with a judicial efficiency argument,

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contending a favorable ruling in ACA International would narrow

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the issues here and so it is unnecessary to litigate potentially

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moot issues.

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International will minimally affect this case, making a stay

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unwarranted.

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See Mot. at 3-5.

Plaintiff disagrees, arguing ACA

See Opp’n at 2-3.

The Court agrees with Plaintiff.

Defendant’s assertion

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that ACA International and Marks will moot Plaintiff’s claims

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and preclude the need for discovery is speculative.

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the results in these appeals, Defendant must still produce

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discovery to, at the very least, settle factual disputes

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regarding its prerecorded voice technology.

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Performant Fin. Corp., No. 16-cv-05461-JST, 2017 WL 786293, at

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*2 (N.D. Cal. Feb. 27, 2017).

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brings two independent bases for TCPA liability: ATDS or a

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prerecorded voice, see Compl. ¶ 17, and the pending appeals do

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not address prerecorded voice technology.

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House Networks, LLC, No. 2:16-cv-235-FTM-29-MRM, 2016 WL

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3901378, at *4 (ACA International “will not affect Plaintiff’s

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contention that [defendant] called him using a prerecorded or

No matter

See Glick v.

Equally important, Plaintiff

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See Sliwa v. Bright

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automated voice, which is an independent basis for stating a

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claim under the TCPA).

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International may very well petition the U.S. Supreme Court for

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review, making it impossible to forecast if or when a decision

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in ACA International will become final.

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786293 at *2; Sliwa, 2016 WL 3901378 at *4.

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International does not address Rosenthal Act claims, a claim

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Plaintiff also brings here.

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stay would serve judicial efficiency.

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2.

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Moreover, the losing party in ACA

See Glick, 2017 WL
And, finally, ACA

In sum, Defendant has not shown a

Hardship & Inequity

Defendant also fails to “make out a clear case of hardship

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or inequity” if required to move forward.

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255.

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alone does not state a compelling need as to why this Court

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should impose a stay.

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1098, 1112 (9th Cir. 2005) (“[B]eing required to defend a suit,

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without more, does not constitute a ‘clear case of hardship or

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inequity’ within the meaning of Landis.”).

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Defendant cites “costly discovery,” Mot. at 7, but this

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Landis, 299 U.S. at

See Lockyer v. Mirant Corp., 398 F.3d

Prejudice

Lastly, staying this case would prejudice Plaintiff.

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Defendant filed its motion more than eight months after Plaintiff

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filed her complaint.

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2016); Mot (filed June 26, 2017).

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and, again, Defendant must still produce discovery to settle the

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factual disputes regarding its prerecorded voice technology and

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whether Defendant previously obtained consent of the individual

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it was allegedly trying to reach.

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*4.

See generally Compl. (filed October 12,
Discovery has not yet started

See Sliwa, 2016 WL 3901378

Also, as explained above, Plaintiff’s prerecorded-voice
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at

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basis for her TCPA claim and her Rosenthal Act claim will remain,

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no matter the result in ACA International.

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III.

ORDER

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Defendant has not shown this case is one of those “rare

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circumstances” where a court may compel a party in one case “to

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stand aside while a litigant in another settles the rule of law

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that will define the rights of both,” Landis, 299 U.S. at 255,

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and so has not met its burden.

Indeed, each case this Court

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judicially noticed, at Defendant’s request, was factually

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distinguishable:

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discovery; Rowark and Kristensen concluded a stay would only

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minimally prejudice plaintiff.

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class action, and this Court has found that imposing a stay would

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prejudice Plaintiff.

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motion to stay.

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Bowen discussed burdensome class action

This case, however, is not a

The Court therefore DENIES Defendant’s

Finally, the Court sanctions Defendant for violating this

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Court’s Filing Requirements Order.

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shall not exceed five pages.

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order must pay monetary sanctions: $50 per page).

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filed a ten-page reply brief and counsel for Defendant is ordered

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to pay $250 to the Clerk of the Court within five days of this

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Order.

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ECF No. 3-2.

Reply briefs

See id. (those who violate this

IT IS SO ORDERED.
Dated: September 14, 2017

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Defendant