Miller's Furniture of Mercer Company v. Banner Life Insurance Company, et al

Filing 71

ORDER granting 50 Insurer Defendants' Motion to Stay, or in the Alternative, Motion for Extension of Time to Respond to the Complaint; granting 51 Defendants DJM Advisory Group LLC and Donald Quirke's Motion for Stay, or in the Alte rnative, Motion for Extension of Time to Respond to the Complaint; denying as moot 55 Insurer Defendants' Motion for Leave to File Reply Brief in Support of the Motion [to] Stay or, in the Alternative, Motion for Extension of Time to Respond to the Complaint; denying as moot 56 Defendants DJM Advisory Group, LLC and Donald Quirke's Motion for Leave to File Reply Brief. The matter is STAYED, and the Clerk is directed to add a stay flag to the case. The stay shall remain in effec t until December 29, 2017, or until Plaintiff opts-out of the settlement in JWD Automotive, Inc. v. DJM Advisory Group, LLC, et al., case no. 2:15-cv-793-JES-MRM (M.D. Fla. filed Dec. 21, 2015). If Plaintiff opts-out of the settlement in JWD, Plaintiff is directed to file a notice with the Court, requesting that the stay be lifted. A case management and scheduling order shall be issued once the stay is lifted. Signed by Magistrate Judge Carol Mirando on 10/19/2017. (KBR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MILLER’S FURNITURE OF
MERCER COMPANY, a Pennsylvania
Corporation, individually and as the
representative of a class of similarlysituated persons
Plaintiff,
v.

Case No: 2:17-cv-456-FtM-99CM

BANNER LIFE INSURANCE
COMPANY, WILLIAM PENN
LIFE INSURANCE COMPANY OF
NEW YORK, DJM ADVISORY
GROUP LLC, DONALD QUIRKE
and JOHN DOE,
Defendants.
ORDER
This matter comes before the Court on Banner Life Insurance Company and
William Penn Life Insurance Company of New York’s (“Insurer Defendants”) Motion
to Stay, or in the Alternative, Motion for Extension of Time to Respond to the
Complaint (Doc. 50), and Defendants DJM Advisory Group LLC and Donald Quirke’s
(“DJM Defendants,” together with Insurer Defendants, “Defendants”) Motion for
Stay, or in the Alternative, Motion for Extension of Time to Respond to the Complaint
(Doc. 51), both filed on August 22, 2017. Plaintiff opposes the requested relief. Doc.
54. For the reasons discussed below, Defendants’ Motions for Stay (Docs. 50, 51) are
due to be granted. Defendants also have requested to file reply briefs, which the
Court will deny as moot given its ruling herein. Docs. 55, 56.

Plaintiff initiated this suit on April 28, 2017, alleging that Defendants sent
unsolicited fax advertisements in violation of the Telephone Consumer Protection Act
of 1991 (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. §
227. Doc. 1 ¶¶ 1-2. Plaintiff proposes to represent a class of similarly situated
persons, and has sought class certification. Doc. 2.
Defendants filed two separate motions seeking a stay of this action, citing
another Middle District of Florida case involving the same facsimile transmission at
issue here in which the Honorable John E. Steele, Senior United States District
Judge, granted preliminary approval of a class settlement. Doc. 50 at 1, Doc. 51 at
1; see also JWD Automotive, Inc. v. DJM Advisory Group, LLC, et al. , case no. 2:15cv-793-JES-MRM (M.D. Fla. filed Dec. 21, 2015) (“JWD”). A final approval hearing
is schedule before Judge Steele on December 4, 2017.

JWD, Docs. 77, 78.

Defendants represent that if the settlement in JWD receives final approval, it would
resolve Plaintiff’s claims in this case. Doc. 50 at 1-2. Plaintiff responds that the
actions are dissimilar, and a stay would unduly prejudice Plaintiff. See Doc. 54.
A district court has broad discretion to stay proceedings to control its own
docket. Clinton v. Jones, 520 U.S. 681, 683 (1997). A stay is proper where its scope
is properly limited and not “immoderate.”

Ortega Trujillo v. Conover & Co.

Communications, Inc., 221 F.3d 1262, 1264 (11th Cir. 2000) (citing CTI–Container
Leasing Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1288 (11th Cir. 1982).

“In

determining whether to grant a stay, courts examine general factors such as whether
a stay will unduly prejudice or tactically disadvantage the non-moving party; simplify

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the issues and streamline trial; and reduce the burden of litigation on the parties and
on the court.”

Brent v. Source Interlink Distribution, LLC, No. 2:14-cv-52-FtM-

38DNF, 2014 WL 4162770, at *2 (M.D. Fla. Aug. 21, 2014).
Here, the Court finds a temporary stay is appropriate pending the outcome of
the hearing in JWD. The Court has considered Plaintiff’s argument that it will be
unduly prejudiced by a stay, and finds it unavailing. Plaintiff states that it seeks
discovery in this case to determine whether an objection is appropriate in JWD. Doc.
54 at 7. Plaintiff admits, however, that it will be unable to receive discovery and
draft and file an objection prior to the deadline for objections in JWD.1 Doc. 54 at 7,
n.3; see also JWD, Doc. 77. As such, Plaintiff’s argument that it will be prejudiced
by a stay fails.
Moreover, the factors — simplification of issues at trial, and reducing the
burden of litigation on the parties and the court — militate in favor of a stay. See

Brent, 2014 WL 4162770 at *2. Based on a review of the pleadings, it appears that
Plaintiff’s claims may in fact be resolved, or at least narrowed, by the JWD
settlement.

Compare Doc. 1 with JWD, Doc. 77.

The fax at issue in JWD is

identical to the fax at issue here. Compare Doc. 1-2 with JWD, Doc. 1-1. Plaintiff
received the fax at issue in this case on or about April 3, 2015, which falls within the
time period included in the preliminarily approved class in JWD. Doc. 1 at ¶ 20.
Both Plaintiff here and the plaintiff in JWD allege damages under the TCPA.

1

In fact, the deadline for objections in JWD expired on September 29, 2017. See

JWD, Doc. 77.

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Compare Doc. 1 with JWD, Doc. 1. Moreover, Banner Life Insurance Company,
William Penn Life Insurance Company of New York, and DJM Advisory Group, LLC
all are defendants in both cases. Compare Doc. 1 with JWD, Doc. 1. To the extent
there are claims alleged here not present in JWD, all such claims relate to the same
nexus of facts underlying Plaintiff’s claim for violation of the TCPA. See Doc. 1 at
18-21.

Moreover, the additional named Defendant here, Mr. Quirke, is

“substantially involved with and interested in the outcome” of JWD. Doc. 51 at 2,
n.1. In sum, a stay until such time as a final determination is made on the proposed
settlement in JWD, or until Plaintiff opts-out of the JWD settlement, will simplify
the issues at trial and reduce the burden of litigation on the parties and the court,
while avoiding inconsistent outcomes.

For these reasons, the Court will grant

Defendants’ request for a temporary stay pending the outcome of the hearing in JWD.
ACCORDINGLY, it is hereby
ORDERED:
1.

Insurer Defendants’ Motion to Stay, or in the Alternative, Motion for

Extension of Time to Respond to the Complaint (Doc. 50), and Defendants DJM
Advisory Group LLC and Donald Quirke’s Motion for Stay, or in the Alternative,
Motion for Extension of Time to Respond to the Complaint (Doc. 51) are GRANTED.
The matter is STAYED, and the Clerk is directed to add a stay flag to the case.
2.

The stay shall remain in effect until December 29, 2017, or until Plaintiff

opts-out of the settlement in JWD Automotive, Inc. v. DJM Advisory Group, LLC, et

al., case no. 2:15-cv-793-JES-MRM (M.D. Fla. filed Dec. 21, 2015). If Plaintiff opts-

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out of the settlement in JWD, Plaintiff is directed to file a notice with the Court,
requesting that the stay be lifted. A case management and scheduling order shall
be issued once the stay is lifted.
3.

Insurer Defendants’ Motion for Leave to File Reply Brief in Support of

the Motion [to] Stay or, in the Alternative, Motion for Extension of Time to Respond
to the Complaint (Doc. 55) and Defendants DJM Advisory Group, LLC and Donald
Quirke’s Motion for Leave to File Reply Brief (Doc. 66) are DENIED as moot.
DONE and ORDERED in Fort Myers, Florida on this 19th day of October,
2017.

Copies:
Counsel of record

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