Bowden v. Contract Callers, Inc.

Filing 33

ORDER GRANTING DEFENDANT'S MOTION TO STAY. The instant action is stayed pending the D.C. Circuit's opinion in ACA International. No later than four weeks from the date the D.C. Circuit issues said opinion, the parties shall submit a joint report apprising the Court of the status of any appeal of ACA International, the status of the Ninth Circuit's review of Marks, and the parties' positions as to whether a continuation of the stay is warranted. Signed by Judge Maxine M. Chesney on 04/05/17. (mmclc2, COURT STAFF) (Filed on 4/5/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KEITH BOWDEN,
Plaintiff,

United States District Court
Northern District of California

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v.

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Case No. 16-cv-06171-MMC
ORDER GRANTING DEFENDANT’S
MOTION TO STAY

CONTRACT CALLERS, INC.,
Defendant.

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Re: Dkt. No. 27

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Before the Court is defendant Contract Callers, Inc.'s (“Contract Callers”) “Motion

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to Stay,” filed February 3, 2017. Plaintiff Keith Bowden (“Bowden”) has filed opposition,

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to which Contract Callers has replied. Having read and considered the papers filed in

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support of and in opposition to the motions, the Court rules as follows.1
BACKGROUND

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In his complaint, Bowden alleges that, in June 2016, Contract Callers “called [him]

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at least 8 times on his cellular telephone using an autodialer and/or an artificial or

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prerecorded voice in an attempt to collect a consumer debt that [he] did not owe” and that

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such calls “continued despite several requests by [Bowden] to stop calling him.” (See

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Compl. ¶ 1.) Bowden further alleges that he “did not give [Contract Callers] prior express

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consent to make these calls” and had previously “had no contact or relationship with”

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By order filed March 3, 2017, the Court took the motion under submission.

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Contract Callers. (See id.)
Based thereon, Bowden asserts claims, on behalf of himself and a number of

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subclasses, under the Telephone Consumer Protection Act (“TCPA”), Fair Debt

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Collection Practices Act (“FDCPA”), and California’s Rosenthal Fair Debt Collection

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Practices Act (“Rosenthal Act”).

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By the instant motion, Contract Callers seeks a stay of the above-titled action

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pending the outcome of ACA Int’l v. Fed. Commc’n Comm’n, No. 15-1211 (D.C. Cir.

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2015) (hereinafter ACA International), in which the D.C. Circuit has been asked to review

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various aspects of an order issued by the Federal Communications Commission
(“F.C.C.”) as to the TCPA, see In the Matter of Rules & Regulations Implementing the

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United States District Court
Northern District of California

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Telephone Consumer Protection Act of 1991, 30 F.C.C. Recd. 7961 (July 10, 2015). As

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relevant to the instant motion, the D.C. Circuit has been asked to decide whether the

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F.C.C.’s holding that the statutory definition of an “automatic telephone dialing system”

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(“ATDS”)2 “is not limited to its current configuration” but, instead, also “includes its

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potential functionalities,” see 30 F.C.C. Recd. at 7974, constitutes an abuse of discretion

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or violates callers’ constitutional rights. (See Amended Petition for Review, Def.’s

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Request for Judicial Notice (“RJN”), Ex. 6, at 3).3

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Contract Callers also points out that the Ninth Circuit has stayed its review of

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Marks v. Crunch San Diego, 55 F.Supp.3d 1288 (S.D. Cal. 2014), a case concerning the

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definition of an ATDS, pending the D.C. Circuit’s decision in ACA International (see Def.’s

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RJN, Ex. 1, at 7), and asks the Court to extend any stay it may grant to “the possible

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The TCPA defines an ATDS as “equipment which has the capacity . . . to store or
produce telephone numbers to be called, using a random or sequential number generator
. . . and . . . to dial such numbers,” see 47 U.S.C. § 227(a)(1), and sets forth the limited
circumstances under which an ATDS may be used, see 47 U.S.C. § 227(b).
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Contract Callers’ unopposed request for judicial notice of various orders issued
by trial and appellate courts in several cases, as well as the docket for an additional case,
is hereby GRANTED. See Rosales–Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir.
2014) (“It is well established that [a court] may take judicial notice of judicial proceedings
in other courts.”).
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decision of the Ninth Circuit in Marks” (see Mot. at 3:27).
LEGAL STANDARD
“[T]he power to stay proceedings is incidental to the power inherent in every court

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to control the disposition of the causes on its docket with economy of time and effort for

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itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). A

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court may “find it is efficient for its own docket and the fairest course for the parties to

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enter a stay of an action before it, pending resolution of independent proceedings which

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bear upon the case,” even if the “issues in such proceedings” are not “necessarily

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controlling of the action before the court.” See Leyva v. Certified Grocers of Cal., Ltd.,

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United States District Court
Northern District of California

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593 F.2d 857, 863–64 (9th Cir. 1979).
“The proponent of a stay bears the burden of establishing its need.” Clinton v.

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Jones, 520 U.S. 681, 708 (1997). In deciding whether to stay proceedings pending

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resolution of an appeal in another action, a district court must weigh “the competing

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interests which will be affected by the granting or refusal to grant a stay,” including “the

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possible damage which may result from the granting of a stay, the hardship or inequity

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which a party may suffer in 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, proof, and questions of

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law which could be expected to result from a stay.” See Lockyer v. Mirant Corp., 398

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F.3d 1098, 1110 (9th Cir. 2005) (internal quotation and citation omitted).

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DISCUSSION

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Contract Callers argues a stay is appropriate here because the D.C. Circuit’s

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decision in ACA International will narrow the issues and conserve judicial resources in

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the instant action, reduce Contract Callers’ discovery burdens, and pose no harm to

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Bowden. Bowden disagrees with each of Contract Callers’ arguments and, in addition,

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contends a stay is inappropriate given Bowden’s FDCPA and Rosenthal Act claims.

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Although the Court recognizes that district courts in the Ninth Circuit have disagreed as to

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the propriety of a stay pending the D.C. Circuit’s decision in ACA International, see, e.g.,

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Clayton v. Synchony Bank, -- F.Supp.3d --, 2016 WL 7106018, at *3-4 (E.D. Cal., Nov. 7,
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2016) (collecting cases), the Court finds, for the reasons set forth below, a stay is, in this

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instance, appropriate.

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One of the competing interests the Court must consider is whether a stay would

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promote “the orderly course of justice measured in terms of the simplifying . . . of issues,

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proof, and questions of law.” See Lockyer, 398 F.3d at 1110. In that regard, Contract

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Callers asserts, the equipment it used to call Bowden has already been found by two

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district courts to not be an ATDS because it lacks the present capacity to generate or dial

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random or sequential numbers (see Reply at 1:21-27 (citing Smith v. Stellar Recovery,

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No. 15-cv-11717 (E.D. Mich. Feb. 7, 2017); Pozo v. Stellar Recovery, No. 8:15-cv-00929AEP (M.D. Fla. Sept. 2, 2016))), and that, consequently, Bowden’s “only possible

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United States District Court
Northern District of California

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argument” as to its TCPA claim is “that the concept of capacity or ‘potential capacity’ is

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broadly construed” to include both present and potential capacity (see Reply at 1:24-25),

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which issue the D.C. Circuit will decide in ACA International.

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In response Bowden argues that the D.C. Circuit’s decision would not be binding

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on this Court, an issue the Court does not resolve herein, as, irrespective of any

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precedential effect, ACA International will at least provide substantial guidance on a key

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issue in the case,4 and a stay in the interim would thus serve to conserve judicial

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resources. See, e.g., Fontes v. Time Warner Cable, Inc., No. CV 14-2060-CAS (CSW),

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2015 WL 9272790, at *5 (C.D. Cal. Dec. 17, 2015) (finding stay appropriate where

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decision may otherwise “render moot substantial efforts by the parties as well as many of

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the Court’s rulings”); see also Gustavson v. Mars, Inc., No. 13-CV-04537-LHK, 2014 WL

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6986421, at *3 (N.D. Cal. Dec. 10, 2014) (finding stay appropriate where decision may

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change “the applicable law or the landscape of facts that need to be developed” and “the

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need to re-brief and potentially re-open discovery would involve a significant expenditure

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of time and resources”) (internal quotation and citation omitted).

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Moreover, as noted above, the Ninth Circuit has found the D.C. Circuit’s ruling in
ACA International to be of sufficient significance to warrant a stay in a case presently
pending before the Ninth Circuit.
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The Court next considers the “hardship or inequity which a party may suffer in

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being required to go forward” with the case. See Lockyer, 398 F.3d at 1110. Here,

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Contract Callers argues, it would be harmed by burdensome class discovery. Although,

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as Bowden correctly points out, discovery on the functionality of the system Contract

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Callers used to call Bowden will be required regardless of the outcome of ACA

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International, the Court finds denying a stay would “force[]” the parties “to spend time and

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money conducting discovery on a critical issue of liability without knowing what law will

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ultimately apply at summary judgment or at trial—a fool’s errand, to say the least.” See

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Washington v. Six Continents Hotels, Inc., No. 16-cv-03719-ODW (JEMx), 2017 WL
111913, at *2 (C.D. Cal., Jan. 9, 2017); see also Gustavson, 2014 WL 6986421, at *3

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United States District Court
Northern District of California

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(finding defendant “would clearly suffer significant and potentially unnecessary hardship if

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compelled to proceed” where outcome of decision might require defendant to “re-depose

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key witnesses, conduct further discovery, and re-brief class certification”).5

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With respect to “the possible damage which may result from the granting of a

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stay,” see Lockyer, 398 F.3d at 1110, Bowden argues that the stay requested here is

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indefinite in nature, thereby increasing the risk of evidence becoming stale or witnesses’

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memories fading. In support thereof, Bowden cites to cases in which other courts have

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denied motions to stay pending ACA International, due, in part, to the length of time it

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may take the D.C. Circuit to reach its decision. While recognizing that “[a] stay should

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not be granted unless it appears likely the other proceedings will be concluded within a

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reasonable time in relation to the urgency of the claims presented to the court,” see

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Leyva, 593 F.2d at 864, the Court agrees with Contract Callers that “ACA International is

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To the extent Bowden contends Contract Callers “must make out a clear case of
hardship or inequity in being required to go forward” where there is “even a fair
possibility” the stay will prejudice the opposing party, see Landis, 299 U.S. at 255, the
Court finds such a “clear case” of hardship has been made, as denial of a stay would
require both parties to conduct discovery and prepare for summary judgment without
clarity as to the underlying law. In light of such finding, Bowden’s request that, even if a
stay is granted, the Court permit written discovery to go forward, or, in the alternative,
require the parties to respond to all pending written discovery, is denied.
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now in a different posture” than it was in most of the earlier cases to which Bowden cites,

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as, at this point, appellate briefing is complete and the D.C. Circuit heard oral argument

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on October 19, 2016. (See Reply at 6:13-18 (citing Clayton, 2016 WL 7106018, at *4).)

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Thus, the Court finds a stay is unlikely to last more than a few months and, consequently,

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the damage from granting such relief is, if any, minimal. See Washington, 2017 WL

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111913, at *2 (holding, as of January 9, 2017, ACA International stay is “unlikely to

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exceed four to six months”).6

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Lastly, as to Bowden’s argument that “Contract Callers fails to offer any legal basis
to stay the FDCPA and Rosenthal Act claims, which have nothing to do with the
proceedings in ACA [International]” (see Opp. at 9:2-4), the Court notes that all of

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United States District Court
Northern District of California

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Bowden’s claims revolve around the same set of facts, and that even Bowden concedes

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that “discovery concerning the [FDCPA and Rosenthal Act claims] overlaps with [the]

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TCPA claim.” (See id. at 6:19-20.) Accordingly, in the interests of judicial efficiency, the

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Court finds a stay of the entire action is appropriate. See, e.g., Clayton, 2016 WL

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7106018 at *1, 4 (granting stay of action with TCPA and Rosenthal Act claims pending

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ACA International).
CONCLUSION

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For the reasons stated above, Contract Callers’ motion to stay is hereby

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GRANTED and the instant action is hereby STAYED pending the D.C. Circuit’s opinion in

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ACA International. No later than four weeks from the date the D.C. Circuit issues said

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opinion, the parties shall submit a joint report apprising the Court of the status of any

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appeal of ACA International, the status of the Ninth Circuit’s review of Marks, and the

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To the extent Bowden argues ACA International is “almost certain to [be]
appeal[ed] to the Supreme Court” (see Opp. at 8:13-17 (citing Lathrop v. Uber Techs.,
Inc., No. 14-cv-05678-JST, 2016 WL 97511, at *4 (N.D. Cal. Jan. 8, 2016))) or that a stay
pending the Ninth Circuit’s resolution of Marks would be indefinite, any potential harm
resulting from either such occurrence can be addressed at a later stage of the
proceedings. In particular, the Court will limit its order to the D.C. Circuit’s decision in
ACA International, after which the Court will be in a position to “reevaluate whether
continuation of a stay is warranted,” see Washington, 2017 WL 111913, at *2 n. 2.
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parties’ positions as to whether a continuation of the stay is warranted.

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IT IS SO ORDERED.

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Dated: April 5, 2017
MAXINE M. CHESNEY
United States District Judge

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United States District Court
Northern District of California

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