Gosneigh v. Nationstar Mortgage, LLC
Filing
24
ORDER: Defendant Nationstar Mortgage, LLC's Motion to Stay (Doc. # 20 ) is denied. Signed by Judge Virginia M. Hernandez Covington on 2/1/2017. (DMD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LAURA M. GOSNEIGH,
Plaintiff,
v.
Case No. 8:16-cv-3040-T-33AEP
NATIONSTAR MORTGAGE, LLC,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Nationstar Mortgage, LLC’s Motion to Stay (Doc. # 20), filed
on January 17, 2017. Plaintiff Laura Gosneigh filed a response
on January 31, 2017. (Doc. # 23). For the reasons that follow,
the Motion is denied.
Discussion
Gosneigh initiated this action against Nationstar on
October
28,
2016,
alleging
violations
of
the
Telephone
Consumer Protection Act, 47 U.S.C. § 227, et seq., and the
Florida
Consumer
Collection
Practices
Act,
Fla.
Stat.
§
559.55, et seq. (Doc. # 1). Specifically, Gosneigh alleges
that Nationstar made numerous calls to her cellular telephone
without her consent using an automated telephone dialing
1
system (ATDS) or an artificial or prerecorded voice. (Id. at
¶¶ 21, 41).
On January 17, 2017, Nationstar filed its Motion to Stay,
arguing that a stay is “appropriate because an important legal
issue that may be dispositive of this case is currently
pending before the United States Circuit Court of Appeals for
the District of Columbia.” (Doc. # 20 at 1). That case, ACA
International v. Federal Communications Commission, Case No.
15-1211 (D.C. Cir. 2015), questions the FCC’s redefinition of
the term ATDS in the agency’s July 10, 2015, Order. (Id. at
2, Ex. A). Nationstar argues that the ACA International
decision may be dispositive, or at least clarify the issues
in this case, because “whether Nationstar used an [ATDS] as
defined by the TCPA and by the [FCC]” is directly at issue.
(Id. at 2).
A
district
court
has
“broad
discretion
to
stay
proceedings as an incident to its power to control its own
docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997)(citing
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Deciding
whether to stay a case “calls for the exercise of judgment,
which must weigh competing interests and maintain an even
balance.” Landis, 299 U.S. at 254-55.
2
This Court considers “several factors when evaluating a
request for a stay, including prejudice to the non-moving
party, whether the requested stay would simplify and clarify
the issues, and whether the potential stay would reduce the
burden
of
litigation
on
the
parties
and
on
the
court.”
Mackiewicz v. Nationstar Mortg., LLC, No. 6:15-cv-465-Orl18GJK,
2015
WL
11983233,
at
*1
(M.D.
Fla.
Nov.
10,
2015)(citing Freedom Sci., Inc. v. Enhanced Vision Sys., No.
8:11-cv-1194-T-17AEP, 2012 U.S. Dist. LEXIS 11410, at *2
(M.D. Fla. Jan. 21, 2012)).
Federal courts routinely exercise their power to stay a
proceeding where a pending decision in another court would
“have a substantial or controlling effect on the claims and
issues in the stayed case.” Miccosukee Tribe of Indians of
Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th
Cir. 2009); see also Coatney v. Synchrony Bank, No. 6:16-cv389-Orl-22TBS, 2016 WL 4506315, at *1 (M.D. Fla. Aug. 2,
2016)(staying
TCPA
case
because
“[t]he
issue
in
ACA
International bears directly on the instant case in that the
ruling will determine whether the equipment that Defendants
allegedly
used
to
make
telephone
calls
to
considered an ATDS for purposes of the TCPA”).
3
Plaintiff
is
But, here, the decision of ACA International will not be
dispositive. In the Complaint, Gosneigh alleges that she
received
both
calls
using
an
ATDS
and
calls
using
an
artificial or prerecorded voice. (Doc. # 1 at ¶¶ 21-22, 24).
Section 227 of the TCPA makes it unlawful to make collection
calls using an ATDS or an artificial or prerecorded voice, so
“plaintiffs can state a claim under the TCPA by allegin[g]
the use of (1) an ‘artificial or prerecorded voice’ or (2) an
ATDS.” Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174-IEG RBB,
2013 WL 3776927, at *1 n.2 (S.D. Cal. July 16, 2013)(citing
47 U.S.C. § 227(b)(1)(A); Vance v. Bureau of Collection
Recovery LLC, No. 10-cv-06324, 2011 WL 881550, at *3 (N.D.
Ill. Mar. 11, 2011)).
Thus, ACA International “will not affect [Gosneigh’s]
contention that [Nationstar] called [her] using a prerecorded
or automated voice, which is an independent basis for stating
a claim under the TCPA.” Sliwa v. Bright House Networks, LLC,
No. 2:16-cv-235-FtM-29MRM, 2016 WL 3901378, at *4 (M.D. Fla.
July 19, 2016)(declining to stay TCPA case pending decision
of ACA International); see also Rodriguez v. DFS Servs., LLC,
No. 8:15-cv-2601-T-30TBM, 2016 WL 369052, at *3 (M.D. Fla.
Feb. 1, 2016)(stating ACA International did not warrant a
4
stay because it would “have no effect on the viability of
Rodriguez’s lawsuit as pled in her complaint”).
As the ACA International decision would not dispose of
all the issues in this case, a stay would primarily be “in
the interests of judicial economy, which the Supreme Court
has found to be insufficient justification for a stay pending
a similar proceeding.” Mancini v. JPMorgan Chase Bank, N.A.,
No. 1:15-CV-61524-UU, 2016 WL 1273185, at *1 (S.D. Fla. Mar.
28, 2016)(citing Landis, 299 U.S. at 257); see also Coniglio
v. Iqual Corp., No. 8:15-cv-2406-T-33AEP, 2015 WL 8521288, at
*1 (M.D. Fla. Dec. 3, 2015)(“ackowledg[ing] that important
developments
in
[TCPA]
nevertheless
declining
law
to
may
stay
be
on
pending
the
horizon”
decision
of
but
ACA
International and another case).
Gosneigh also argues that she would be prejudiced by a
stay because it is uncertain when the D.C. Circuit will rule.
See Mancini, 2016 WL 1273185, at *1 (noting that “[a]ny stay
would be indefinite”). Furthermore, “there is always the
possibility that the D.C. Circuit’s decision will be appealed
to the Supreme Court, adding a further layer of indefinite —
and perhaps lengthy — delay were a stay to be granted here.”
Schwyhart v. AmSher Collection Servs., Inc., 182 F. Supp. 3d
1239, 1243 (N.D. Ala. 2016). According to Gosneigh, such a
5
delay
could
lead
to
an
“irreversible
loss
of
needed
information,” such as original call logs and recordings.
(Doc. # 23 at 4). To be sure, regardless of the outcome of
ACA International, further discovery will be required and
loss of such relevant evidence would prejudice Gosneigh. Cf.
Lathrop v. Uber Techs., Inc., No. 14-cv-05678-JST, 2016 WL
97511, at *4 (N.D. Cal. Jan. 8, 2016)(“Even if the D.C.
Circuit were to modify or vacate the 2015 FCC Order, factual
disputes, such as whether an ATDS was used and whether text
recipients provided their consent, will remain here.”).
Upon
due
consideration
of
these
factors,
the
Court
determines that a stay pending the D.C. Circuit’s decision in
ACA International is unwarranted.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant
Nationstar
Mortgage,
LLC’s
Motion
to
Stay
(Doc. # 20) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 1st
day of February, 2017.
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