I.C. v. American Credit Acceptance, LLC

Filing 26

ORDER denying 20 motion to stay; denying 21 Motion for Hearing. Signed by Judge Roy B. Dalton, Jr. on 4/25/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
I.C. ex rel. CHARLES COCHRANE,
Plaintiff,
v.

Case No. 6:16-cv-1479-Orl-37GJK

AMERICAN CREDIT ACCEPTANCE,
LLC,
Defendant.
_____________________________________
ORDER
In the instant action, Plaintiff asserts claims against Defendant for violations of
Telephone Consumer Protection Act (“TCPA”) and the Florida Consumer Collection
Practices Act. (Doc. 6.) Defendant has moved to stay the action pending a decision from
the U.S. Court of Appeals for the District of Columbia Circuit concerning the definition
of an automatic telephone dialing system (“ATDS”) and a called party (“Called Party”)
for purposes of consent. (Doc. 20 (“Motion to Stay”).) In a separately filed motion,
Defendant seeks a hearing on the Motion to Stay. (Doc. 21.) For the reasons set forth
below, the motions are due to be denied.

-1-

I.
A.

DISCUSSION

Complaint

The operative Complaint contains the following allegations. Beginning in May
of 2015 through September of 2015, Defendant placed hundreds of phone calls to
Plaintiff’s cell phone in an attempt to collect a debt—arising from an automobile loan—
from a consumer named “Lisa” (“Alleged Debtor”). (Doc. 6, ¶¶ 1, 2, 11.) Notably,
Plaintiff is a minor child, does not own a vehicle, and does not know or have any
relationship with the Alleged Debtor. (Id. ¶¶ 6, 7.) Though Plaintiff and her father
advised Defendant’s agents on multiple occasions that they had the wrong number and
demanded that Defendant stop calling Plaintiff’s cell phone, Defendant continued to
place numerous collection calls to Plaintiff’s cell phone almost daily. (Id. ¶¶ 10, 12, 13, 15,
16.)
Importantly, the Complaint also alleges that: (1) Defendant used an ATDS to place
calls to Plaintiff; and (2) Plaintiff is not the Alleged Debtor, does not know the Alleged
Debtor, has no business relationship with Defendant, never gave her cell phone number
to Defendant, and thus never gave Defendant “prior express consent” to use an ATDS to
call her cell phone. (Id. ¶¶ 20, 23.) In addition, Plaintiff alleges that Defendant’s continued
calls—in spite of notification that it had the wrong number—evidences an intent to abuse,
harass, and/or annoy Plaintiff. (Id. ¶ 19.)
B.

Instant Motions

On February 23, 2017, Defendant filed a motion requesting that the Court stay
these proceedings pending the D.C. Circuit’s decision in ACA International v. Federal
-2-

Communications Commission, No. 15-1211 (“ACA Int’l”). (Doc. 20.) According to
Defendant, the ACA Int’l decision will have precedential significance and could be
dispositive of Plaintiff’s claim because it will address challenges to the Federal
Communication Commission’s (“FCC”) definitions of an ATDS and a Called Party. (Id.)
Contemporaneously, Defendant requested a hearing on the Motion to Stay (Doc. 21), and
Plaintiff timely filed a response opposing the Motion to Stay (Doc. 22).
C.

Analysis

The TCPA prohibits ATDS calls to a cell phone without the Called Party’s prior
express consent. 47 U.S.C. § 227(b)(1)(A). Thus, the ACA Int’l decision may impact
litigation under the TCPA. But, as Defendant concedes, the Undersigned has previously
declined to stay similar litigation on the ground that ACA Int’l will be merely persuasive
authority within the Eleventh Circuit. Adamo v. Synchrony Bank, No. 6:16-cv-530-Orl37GJK, 2016 WL 3621129, at *1 (M.D. Fla. July 6, 2016). Though the Motion to Stay
presents a thorough inventory of the divergent viewpoints among federal courts
concerning whether a circuit court’s interpretation of an FCC order is binding or merely
persuasive outside that circuit, Defendant has not persuaded the Court to recede from its
former position. Hence, in the exercise of its discretion, the Court declines to stay the
instant proceeding. See Clinton v. Jones, 520 U.S. 681, 706 (1997) (recognizing that district
courts have broad discretion to stay proceedings as an incident to their power to control
their own docket).

-3-

II.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendant American Credit Acceptance, LLC’s Motion to Stay (Doc. 20) is
DENIED.

2.

Defendant American Credit Acceptance, LLC’s Motion for Oral Argument
(Doc. 21) is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on April 25, 2017.

Copies to:
Counsel of Record

-4-