Skzynear v. Kia Motors Finance
Filing
20
ORDER denying 12 motion to stay. Signed by Judge Susan C Bucklew on 1/23/17. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LAURA SKZYNEAR,
Plaintiff,
v.
Case No. 8:16-cv-3174-T-24 JSS
KIA MOTORS FINANCE,
Defendant.
__________________________/
ORDER
This cause comes before the Court on Defendant’s Motion to Stay. (Doc. No. 12).
Plaintiff opposes the motion. (Doc. No. 19). As explained below, Defendant’s motion is denied.
I. Background
Plaintiff filed suit against Defendant, alleging that Defendant violated the Telephone
Consumer Protection Act (“TCPA”) and the Florida Consumer Collection Practices Act.
Specifically, with regards to her TCPA claim, Plaintiff alleges that Defendant called her cell
phone in attempt to collect a debt from her. She contends that Defendant made some of the calls
using an automated telephone dialing system (“ATDS”) and some calls using an artificial or prerecorded voice. Finally, she alleges that she revoked her consent for Defendant to make calls to
her cell phone using an ATDS, pre-recorded voice, or artificial voice.
II. Motion to Stay
Defendant filed the instant motion to stay this case, arguing that this case should be
stayed until to D.C. Circuit Court of Appeals issues its decision in ACA International v. Federal
Communications Commission, 15-1211, in which the appellate court heard oral argument on the
petition to review the FCC’s Declaratory Ruling and Order on October 19, 2016. Defendant
argues that the decision in that case will affect key issues in the instant case, including the
definition of an ATDS, the definition of a predictive dialer, and the method by which a consumer
can revoke her prior express consent (if at all). Plaintiff opposes the stay and cites this Court’s
decision in Sliwa v. Bright House Networks, LLC, 2016 WL 3901378 (M.D. Fla. July 19, 2016),
in support.
This Court has reviewed the thorough and well-reasoned decision is Sliwa that addresses
a motion to stay based on the D.C. Circuit’s case. As explained by this Court in Sliwa:
Even assuming this Court is bound to follow the result reached by the
D.C. Circuit, until that court issues its opinion, the FCC's Final Order
“has the force of law” in this Court. . . . Staying this case because the
Circuit Court may conclude that FCC incorrectly interpreted the
TCPA is the opposite of affording the Final Order deference.
Granting a stay premised on the contention that the FCC got it wrong
could, in fact, amount to a constructive “refus[al] to enforce an FCC
interpretation” – an action this Court is expressly prohibited from
taking . . . .
[Furthermore, after the Circuit Court issues its decision,] that decision
will likely be appealed to the Supreme Court. If the Supreme Court
agrees to hear the case, it will be at least another several months
before it issues an opinion, which opinion could disagree with the
Circuit Court's holding and either vacate or reinstate the FCC's
conclusions. In short, the indefinite length and uncertain outcome of
the appeal substantially weigh against [staying this case] . . . .
Id. at *4 (citations omitted). This Court agrees with the decision in Sliwa that a stay is not
appropriate in this case.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion to Stay (Doc.
No. 12) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 23rd day of January, 2017.
Copies to: Counsel of Record
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