Zuluaga v. Ocwen Loan Servicing, LLC

Filing 20

ORDER denying 14 motion to stay. Signed by Judge Roy B. Dalton, Jr. on 5/3/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GEORGE ZULUAGA,
Plaintiff,
v.

Case No. 6:17-cv-335-Orl37-GJK

OCWEN LOAN SERVICING, LLC,
Defendant.
_____________________________________
ORDER
In the instant action, Plaintiff asserts claims against Defendant for violations of the
Telephone Consumer Protection Act (“TCPA”) and the Florida Consumer Collection
Practices Act. (Doc. 1.) Defendant has moved to stay the action pending a decision from
the U.S. Court of Appeals for the District of Columbia Circuit concerning, inter alia: (1) the
definition of an automatic telephone dialing system (“ATDS”); and (2) the
“reasonableness” standard regarding revocation of prior consent (“Revocation
Standard”). (Doc. 14 (“Motion to Stay”); see also Doc. 15.) For the reasons set forth below,
the Motion to Stay is due to be denied.
I.
A.

DISCUSSION

Complaint

The Complaint contains the following allegations. Between March of 2015 and
February of 2017, Defendant placed approximately 500 phone calls to Plaintiff’s cell
phone in an attempt to collect a debt arising from a mortgage loan. (Doc. 1, ¶¶ 15, 19, 21.)
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On at least two occasions, Plaintiff called Defendant and demanded that it stop calling
Plaintiff’s cell phone; nevertheless, Defendant persisted. (Id. ¶¶ 22, 23, 24, 25.)
Importantly, the Complaint also alleges that: (1) Defendant used an ATDS to place
phone calls to Plaintiff; and (2) such phone calls were done without Plaintiff’s “express
permission” in light of him revoking his prior consent. (Id. ¶¶ 23, 26, 27, 28.) In addition,
Plaintiff alleges that Defendant’s continued calls—in spite of Plaintiff’s request to stop—
evidence an intent to harass and abuse. (Id. ¶ 21.)
B.

Motion to Stay

On April 12, 2017, Defendant filed a motion requesting that the Court stay these
proceedings pending the D.C. Circuit’s decision in ACA International v. Federal
Communications Commission, No. 15-1211 (“ACA Int’l”). (Doc. 14, p. 1.; see also Doc. 15,
p. 1.) According to Defendant, the ACA Int’l decision will have precedential significance
and could be dispositive of Plaintiff’s claims because it will address challenges to the
Federal Communication Commission’s (“FCC”) definition of an ATDS and the
“reasonableness” of the Revocation Standard. (See Doc. 15, pp. 2–3.) Plaintiff timely filed
a response (Doc. 19), and the matter is ripe for the Court’s consideration.
C.

Analysis

Under the TCPA, it is unlawful “to make any call using an [ATDS] to a cellular
telephone without the prior express consent of the ‘called party.’” Breslow v. Wells Fargo
Bank,

N.A.,

755

F.3d

1265,

1266

(11th

Cir.

2014)

(per

curiam)

(quoting

47 U.S.C. § 227(b)(1)(A)(iii)). Thus, the ACA Int’l decision may impact litigation under the
TCPA. Even if the D.C. Circuit does reach an opinion favorable to Defendant, the extent
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to which this Court would be bound is not entirely clear. Compare Cabiness v. Educ. Fin.
Sols., LLC, No. 16-cv-01109-JST, 2017 WL 167678, at *3 (N.D. Cal. Jan. 17, 2017) (concluding
that ACA Int’l would be binding on the court) with Schwyhart v. AmSher Collection Servs.,
Inc., 182 F. Supp. 3d 1239, 1242 (N.D. Ala. 2016) (finding that “the D.C. Circuit’s decision
will not, in any event, be binding on this court”).
Irrespective of the deference the D.C. Circuit’s decision in ACA Int’l may or may
not be due, the Court declines to stay the instant proceeding indefinitely pending the
issuance of that decision. 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).
II.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Defendant Ocwen Loan
Servicing, LLC’s Motion to Stay (Doc. 14) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on May 3, 2017.

Copies to:
Counsel of Record
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