DiStasio v. Edible Arrangements, LLC

Filing 135

ORDER denying Defendant's 112 Motion to Transfer to Another District, 113 Motion for Judgment on the Pleadings, and 114 Motion to Stay, and granting in part and denying in part 128 Motion for Extension of Time, for the reasons set forth in the attached Ruling on Pending Motions. The Court will enter a Revised Scheduling Order. Signed by Judge Vanessa L. Bryant on 2/1/2021. (Nault, James)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTOPHER DISTASIO,
Individually and on behalf of all
Others similarly situated,
Plaintiff,
v.
EDIBLE ARRANGEMENTS, LLC,
Defendant.

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No. 3:16-cv-00538 (VLB)

February 1, 2021

RULING ON PENDING MOTIONS
The plaintiff, Christopher DiStasio (“DiStasio”), initiated this action
individually and on behalf of all others similarly situated against the defendant,
Edible Arrangements, LLC (“Edible”), alleging violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). In his Amended Complaint,
DiStasio alleges that Edible sent automated text messages 1 to his cellular
telephone, as well as to the cellular telephones of other consumers, without having
obtained prior written consent as required by the TCPA.
On August 17, 2020, Edible moved to stay this action pending the decision
of the United States Supreme Court in Facebook, Inc. v. Duguid, No. 19-511, [ECF
No. 114], moved to transfer this action to another judicial district pursuant to 28
U.S.C. § 1404(a), [ECF No. 112], and moved for judgment on the pleadings, i.e. for

“Generally, the TCPA prohibits the use of ATDSs [automatic telephone dialing
systems] to produce unwanted phone calls or text messages.” Duran v. La Boom
Disco, Inc., 955 F.3d 279, 282 (2d Cir. 2020).
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dismissal. [ECF No. 113]. DiStasio opposes all three motions. [ECF Nos. 119, 117,
118]. On December 29, 2020, the Parties jointly moved for a six-month extension
of all case management deadlines, citing Edibles’ three pending motions, notices
of supplemental authority filed by both parties since the filing of these motions,
and unavoidable medical leave for two key members of Edible’s legal team in early
2021. [ECF No. 128]. For the reasons stated below, Edible’s three motions pending
since August 2020 are denied, and for the sole reason that counsel represents that
two key members of Edible’s legal team have unavoidable medical leave, the
Parties’ joint motion for extension is granted-in-part, with a two-month, rather than
six-month, extension granted.
I.

PROCEDURAL BACKGROUND

DiStasio filed his Original Complaint on April 5, 2016. [ECF No. 1].
On August 3, 2016, the Court approved the Parties’ jointly filed Rule 26(f)
Report, setting the close of all discovery on March 1, 2017, and stating that “[t]he
parties are encouraged to commence discovery forthwith and to arrange their
schedules in contemplation of the briefing deadlines for any dispositive motions,
because the Court is unlikely to grant a future request for an extension of the
scheduling order absent extraordinary and unforeseeable circumstances.” [ECF
No. 16 (emphasis in original)].
On August 26, 2016, Edible moved to partially stay discovery on the grounds
that whether DiStasio opted-in or consented to Edible’s text messages might be
dispositive and obviate the need for other discovery. [ECF No. 19]. DiStasio
opposed the motion on September 7, 2016, [ECF No. 21], and on September 13,

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2016, the case was transferred from District Judge Jeffrey A. Meyer to Judge
Dominic J. Squatrito for all further proceedings. [ECF No. 22].
On October 24, 2016, the Court denied Edible’s motion to stay, but ordered
DiStasio to file an amended complaint in light of the Supreme Court’s then-recent
opinion in Spokeo v. Robins, Inc., 136 S. Ct. 1540 (2016), which “raise[d] a question
about the plaintiff’s standing to pursue this action,” which had to be “addressed
before class-related discovery [could be] conducted.” [ECF No. 25 at 4-6].
DiStasio filed his Amended Complaint, which is the operative complaint in
this action, on November 17, 2016. [ECF No. 26]. On February 8, 2017, Edible
moved to dismiss DiStasio’s amended complaint for lack of standing, but on May
10, 2017, the Court denied Edible’s motion to dismiss. [ECF No. 43].
On two additional occasions, Edible moved to stay this case, with the Court
granting stays both times. On August 18, 2017, the Court granted Edible’s July 20,
2017 motion to stay pending the issuance of a decision by the D.C. Circuit in ACA
Int’l v. FCC. [ECF No. 59]. The decision of the D.C. Circuit in ACA Int’l, which was
issued on March 16, 2018, in part “set aside the [Federal Communication]
Commission’s explanation of which devices qualify as an ATDS . . . .”1 ACA Int’l v.
FCC, 885 F.3d 687, 695 (D.C. Cir. 2018). That decision did not, however, fully clarify
the meaning of the term “automatic telephone dialing system.” More specifically,
that decision did not resolve the issue of whether the definition of an ATDS in the

The TCPA defines the term “automatic telephone dialing system” as “equipment
which has the capacity-- (A) to store or produce telephone numbers to be called,
using a random or sequential number generator; and (B) to dial such numbers.”
47 U.S.C. §227 (a)(1).
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TCPA includes devices that can store and automatically dial telephone numbers
even if those devices do not use a random or sequential number generator (“the
pertinent issue”). The Court subsequently lifted the stay order on June 19, 2018.
[ECF No. 63].
Less than a month later, on July 11, 2018, Edible again moved for a stay of
this case. [ECF No. 69]. On March 29, 2019, the Court granted Edible’s second stay
motion. [ECF No. 99]. In granting that motion, the Court indicated that a potential
“ruling by the FCC regarding the scope and definition of an automatic telephone
dialing system . . . or the granting of the pending writ of certiorari in Marks v.
Crunch San Diego, LLC could be of significant assistance in clarifying the meaning
of that term, particularly in light of differing rulings on [the pertinent issue] from
the Ninth and Third Circuits.” Id. The Court noted further that there was no
controlling authority in this Circuit on the pertinent issue. On January 24, 2020,
that stay was extended on the basis of an “upcoming decision of the Second Circuit
in La Boom Disco, Inc. v. Duran” expected to address the pertinent issue. [ECF
No. 106]. The Second Circuit issued its decision in Duran on April 7, 2020, and the
Court lifted the stay on April 30, 2020. See Duran v. La Boom Disco, Inc., 955 F.3d
279 (2d Cir. 2020); [ECF No. 109].
As noted, on August 17, 2020, Edible again moved to stay this action, this
time due to the pending decision of the United States Supreme Court in Facebook,
Inc. v. Duguid, No. 19-511, [ECF No. 114], moved to transfer this action to another
judicial district pursuant to 28 U.S.C. § 1404(a), [ECF No. 112], and moved for

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judgment on the pleadings, i.e. for dismissal. [ECF No. 113]. DiStasio opposes all
three motions. [ECF Nos. 119, 117, 118].
II.

LEGAL STANDARD

“In deciding whether to stay proceedings, courts in the Second Circuit
examine the following five factors: (1) the private interests of the plaintiffs in
proceeding expeditiously with the civil litigation as balanced against the prejudice
to the plaintiffs if delayed; (2) the private interests of and burden on the defendants;
(3) the interests of the courts; (4) the interests of persons not parties to the civil
litigation; and (5) the public interest.” Milliken v. Am. Realty Capital Hospitality
Advisors, LLC, No. 18-CV-1757 (VEC), 2018 U.S. Dist. LEXIS 132829, at *10 (S.D.N.Y.
Aug. 7, 2018). “The decision whether to issue a stay is therefore firmly within a
district court’s discretion.” Id.
The Federal Rules of Civil Procedure “should be construed, administered,
and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.
“For the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it
might have been brought or to any district or division to which all parties have
consented.” 28 U.S.C. § 1404(a). The objectives of such a transfer are “to prevent
the waste of time, energy and money and to protect litigants, witnesses, and the
public against unnecessary inconvenience and expense.” Van Dusen v. Barrack,
376 U.S. 612, 616 (1964) (internal quotations omitted). “The movant bears the
burden of establishing the propriety of transfer by a clear and convincing

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showing.” MAK Mktg., Inc. v. Kalapos, 620 F. Supp. 2d 295, 298 (D. Conn. 2009)
(citing Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950)).
To determine whether a transfer under this section is appropriate, the Court
must consider “(1) whether an action ‘might have been brought’ in the proposed
transferee forum, and, if so, (2) whether the transfer promotes convenience and
justice.” Costello v. Home Depot USA, Inc., 888 F. Supp. 2d 258, 267 (D. Conn.
2012). In reaching the latter conclusion, “[d]istrict courts have broad discretion to
make case-by-case determinations . . . .” Id. (citing In re Cuyahoga Equip. Corp.,
980 F.2d 110, 117 (2d Cir. 1992)).
“Federal courts are courts of limited jurisdiction. . . .” Gunn v. Minton, 568
U.S. 251, 256 (2013). Subject matter jurisdiction is not waivable, and a lack of
subject matter jurisdiction may be raised at any time, by a party or the court sua
sponte. See Gonzalez v. Thaler, 565 U.S. 134, 141 (2012).
III.

DISCUSSION

First, as DiStasio points out in his Opposition to Edible’s pending motion to
stay, Edible has actually moved to stay this case seven times, [ECF No. 119 at 1
n.1], and has additionally moved to delay this case more than that if other motions
for various extensions of time are considered. See, e.g. [ECF Nos. 17 (Motion for
Extension of Time to file Motion to Stay), 31 (Motion for Extension of Time to Serve
Discovery Responses), 64 (Motion for Extension of Time to file proposed revised
scheduling order)]. The Court makes no comment on the worthiness of each of
Edible’s previous motions for delay, but cumulatively, they have, as DiStasio

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argues, “delay[ed] this case and prejudice[d] Plaintiff and members of the putative
class.” [ECF No. 119 at 2]. Edible’s pending motion to stay will do so as well.
Moreover, as DiStasio points out, “no matter what definition of an ATDS the
Supreme Court adopts, the Parties will still need to complete outstanding
discovery in this case regarding how Defendant’s telephone dialer functioned to
send automatic telemarketing text messages to Plaintiff and members of the
putative class, along with a number of unrelated issues.” Id. Thus, a stay will not
assuage the “private interests of and burden on the defendant[],” Milliken, 2018
U.S. Dist. LEXIS 132829, at *10, and will only prejudice Plaintiff DiStasio. Id. Other
courts, as DiStasio notes, have so found.

Pittenger v. First National Bank of

Omaha, No. 20-CV-10606, 2020 U.S. Dist. LEXIS 171062, at *8-9 (E.D. Mich. Sept. 18,
2020) (denying motion to stay TCPA case pending Duguid because, inter alia, the
parties will still need to conduct discovery regardless of how Duguid is resolved);
Smith v. JPMorgan Chase Bank, N.A., No. 20-CV-017777 (CBM) (PJWx), 2020 U.S.
Dist. LEXIS 156427, at *3-4 (C.D. Cal. Aug. 21, 2020) (denying defendant’s motion to
stay case pending Duguid where “although the nature of discovery in this case
may change in some ways based on the outcome of Duguid, the Court is
unconvinced the entire action should be stayed for that reason alone.”); Fabricant
v. Elavon, Inc., No. 2:20-cv-02960, slip op., [ECF No. 46] (C.D. Cal. Aug. 25, 2020)
(denying motion to stay pending Duguid); Becker v. Keller Williams Realty, Inc.,
No. 9:19-cv-81451, slip op., [ECF No. 49] (S.D. Fla. Aug. 27, 2020) (denying motion
to stay pending Duguid); Lacy v. Comcast Cable Commc’ns, LLC, No. 3:19-cv05007, 2020 U.S. Dist. LEXIS 146003, at *4 (W.D. Wash. Aug. 13, 2020) (declining to

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stay TCPA case pending Duguid because “regardless of Duguid’s outcome,
discovery will need to take place in th[at] case regarding” inter alia “the existence
and exact nature of any ATDS used to contact [plaintiff].”).
For the above reasons, and because granting the motion to stay will not
“secure the just, speedy, and inexpensive determination of [this] action,” Fed. R.
Civ. P. 1, Edible’s Motion to Stay, [ECF No. 114], is denied. Milliken, 2018 U.S. Dist.
LEXIS 132829, at *10.
The Court also declines to transfer this case. Pursuant to 28 U.S.C. § 1404(a),
the Court may transfer the case to any district “where it might have been brought
or to any district or division to which all parties have consented.” Id. Here,
DiStasio has opposed Edible’s motion for transfer, negating consent, and when the
case was “brought,” Edible was headquartered in Connecticut, not Florida or
Georgia.
Moreover, the Court agrees with DiStasio that “judicial economy will not be
achieved by a transfer at this late stage where Edible waited more than four years
to file its motion.” [ECF No. 117 at 2]. The Court simply declines to entertain
Edible’s motion to transfer at this late date, holding that Edible has not made “a
clear and convincing showing” that transfer is appropriate. MAK Mktg., 620 F.
Supp. 2d at 298 (citing Ford Motor Co., 182 F.2d at 330).
Finally, the Court declines to grant Edible’s motion for judgment on the
pleadings that the Court lacks subject matter jurisdiction. [ECF No. 113]. The Court
has reviewed the Parties’ filings on this issue including the various citations to
supplemental authority and notes first that none of the cases cited are binding on

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this Court. And, the case that the Court looks to for guidance, Barr v. American
Association of Political Consultants, 140 S. Ct. 2335 (2020) (“AAPC”), says
“precious little” about exactly how its fractured opinion should be applied in cases
such as this. Creasy v. Charter Commc’ns, Inc., No. 20-1199, 2020 U.S. Dist. LEXIS
177798, at *3 (E.D. La. Sept. 28, 2020). What is clear is the Court’s statement that
“the Court’s decision would not ‘negate the liability of parties who made robocalls
covered by the robocall restriction’ [potentially including Edible] during the
timeframe in which the exception remained operative.” Id. (quoting AAPC, 140 S.
Ct. at 2355 n.12). In addition, the Court stated that it “disagree[d] with plaintiffs’
broader initial argument for holding the entire 1991 robocall restriction
unconstitutional,” AAPC, 140 S. Ct. at 2349 (emphasis added), and severed the
unconstitutional government debt exception.

Id. (“Congress may include a

severability clause in the law, making clear that the unconstitutionality of one
provision does not affect the rest of the law.”) (emphasis added); see also id. (“A
severability clause indicates that Congress did not intend the validity of the statute
in question to depend on the validity of the constitutionally offensive provision.”)
(emphasis added). These statements echo the words of the Fourth Circuit: “the
debt-collection exemption fails to satisfy strict scrutiny, constitutes an
unconstitutional content-based restriction on speech, and therefore violates the
Free Speech Clause.” Am. Ass’n of Political Consultants v. FCC, 923 F.3d 159, 170
(4th Cir. 2019) (emphasis added), aff’d AAPC. Because of this, the Court declines
to hold that the statute DiStasio has sued Edible under, 47 U.S.C. § 227(b)(1)(A),

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was unconstitutional at the time suit was filed, and therefore denies Edible’s
motion for judgment on the pleadings.
IV.

CONCLUSION

For the reasons stated above, Edible’s Motion to Stay Pending the Supreme
Court’s decision in Facebook, Inc. v. Duguid, [ECF No. 114], Motion to Transfer,
[ECF No. 112], and Motion for Judgment on the Pleadings, [ECF No. 113], are
DENIED.
The Court notes that on August 3, 2016, it entered an Order stating that “[t]he
parties are encouraged to commence discovery forthwith and to arrange their
schedules in contemplation of the briefing deadlines for any dispositive motions,
because the Court is unlikely to grant a future request for an extension of the
scheduling order absent extraordinary and unforeseeable circumstances.” [ECF
No. 16 (emphasis in original)]. The Court fully intends to adhere to that statement
going forward.
Based only on Edible’s representation that “two key members” of its legal
team “will be on unavoidable medical leave in early 2021,” the Court grants-in-part
the Parties’ joint motion for extension of case management deadlines, [ECF No.
128]; lacking further specificity the Court grants a two-month extension. The Court
will enter a Revised Scheduling Order.
IT IS SO ORDERED
_______/s/_______________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: February 1, 2021
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