Jacobs v. OCWEN Loan Servicing, LLC

Filing 25

Order on Defendants Motion to Stay granting 17 Motion to Stay( Status Report due by 5/30/2017.). Closing Case. Motions Terminated: 17 Defendant's MOTION to Stay Proceedings Pending a Ruling by the D.C. Circuit Court of Appeal s filed by OCWEN Loan Servicing, LLC. Signed by Judge Robert N. Scola, Jr on 4/13/2017. (lan) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Cynthia D. Jacobs, Plaintiff
v.
Ocwen Loan Servicing, LLC,
Defendant

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Civil Action No. 16-62318-Civ-Scola
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Order on Defendant’s Motion to Stay
The Defendant Ocwen Loan Servicing, LLC, asks the Court to stay this
case pending a decision by the D.C. Circuit Court of Appeals in ACA
International v. Federal Communications Commission, Case No. 15-1211. (Mot.,
ECF No. 17.) In that consolidated appeal, the D.C. Circuit will review the
validity of a 2015 Federal Communications Commission Order (“the FCC
Order”). (Id. Ex. 1 at 4.) Ocwen argues that the decision in ACA International
will substantially affect “the resolution of an issue critical to” the Plaintiff
Cynthia D. Jacobs’s claim under the Telephone Consumer Protection Act
(“TCPA”). (Id. at 9.) Jacobs opposes the stay. (Resp., ECF No. 20.)
Jacobs filed a complaint alleging violations of the TCPA and two
additional state-law counts. (Compl., ECF No. 1.) As relevant here, the TCPA
makes it unlawful for any person “to make any call [to a cellular
telephone] . . . using any automatic telephone dialing system or an artificial or
prerecorded voice . . . .” 47 U.S.C. § 227(b)(1)(A)(iii). Jacobs primarily argues
that Ocwen violated the TCPA by using an automatic telephone dialing system
(“ATDS”). (Compl. ¶¶11, 16–17, 21, 42–43, 45, 47, 51.) Jacobs mentions in only
three paragraphs that Ocwen violated the TCPA by using a prerecorded
message. (Compl. ¶¶ 21, 45, 51.) This action is still in the beginning stages and
the fact discovery deadline has not yet passed.
The FCC Order at issue in ACA International provides, in part, an
interpretation of what constitutes an ATDS under the TCPA. (Mot. Ex. 2 at 6,
12–18, ECF No. 17-2.) The outcome of ACA International, then, does indeed
affect a critical issue in this Court’s resolution of the present case.1 However,
Circuit courts of appeal, except the Federal Circuit, have exclusive jurisdiction to determine
the validity of a final order of the FCC. 28 U.S.C. § 2342(1). Where several challenges to a final
order arise across several jurisdictions, those are consolidated in one circuit, whose decision
becomes binding on all circuits. See 28 U.S.C. § 2112; Peck v. Cingular Wireless, LLC, 535 F.3d
1053, 1057 (9th Cir. 2008). Consequently, the D.C. Circuit’s decision will be binding in the
Eleventh Circuit.
1

ACA International is not dispositive of Jacobs’s entire case because Jacobs also
alleges, albeit marginally, the use of a prerecorded voice. The Court must
determine whether a stay pending resolution of ACA International is
appropriate in these circumstances, where that resolution will substantially
affect a critical issue in this case but will not dispose of the entire case.
“A district court has the authority to issue a stay of the proceedings
pending resolution of a related matter in another court.” NIACCF, Inc. v. Cold
Stone Creamery, Inc., (S.D. Fla. May 21, 2012) (Scola, J.) (citing Ortega Trujillo
v. Conover & Co. Commc’ns, Inc., 221 F.3d 1262, 1264 (11th Cir. 2000)). The
Court must ensure, of course, that the stay “does not prove ‘immoderate’—that
is to say, too long, too indefinite, or without proper justification . . . .” NIACCF,
No. 12-20756-CIV, 2012 WL 1852941, at *1. To this end, courts also must
consider the relative prejudice and hardship “worked on each party if a stay is
or is not granted,” and general efficiency. Fitzer v. Am. Institute of Baking, Inc.,
No. 209-cv-169, 2010 WL 1955974 (S.D. Ga. May 13, 2010).
As both parties rightly note, district courts across the nation have
reached different conclusions on the identical issue before this Court. In the
Southern District of Florida, two judges have denied a stay pending appellate
review of the FCC Order where the underlying complaint alleged the improper
use of an ATDS under the TCPA. Mancini v. JPMorgan Chase Bank, N.A., No.
15-cv-61524-UU, 2016 WL 1273185, at *1 (S.D. Fla. Mar. 28, 2016) (Ungaro,
J.); Leachman v. Discover Financial Services, LLC, No. 15-cv-62120-PAS (S.D.
Fla. Jan. 12, 2016) (Seitz, J.) (order denying motion to stay). This Court notes,
however, that ACA International had quite a different procedural posture at the
time those judges denied the motions to stay. Specifically, the D.C. Circuit had
not even set oral arguments in the case, and neither court could determine the
potential duration of the stay. Mancini, No. 15-cv-61524-UU, 2016 WL
1273185, at *1 (“Any stay would be indefinite . . . .”); Leachman, Case No. 15cv-62120-PAS (“In light of . . . the indeterminate timeline of its appellate
review . . . .”).
On the other hand, several judges in the Middle District of Florida have
granted stays under these exact circumstances. Coatney v. Synchrony Bank,
No. 16-cv-389-ORL-22TBS, 2016 WL 4506315 (M.D. Fla. Aug. 2, 2016); Shahin
v. Synchrony Fin., No. 15-cv-2941-35-EAJ (M.D. Fla. Apr. 12, 2016);
Mackiewicz v. Nationstar Mortgage LLC., No. 15-cv-465-Orl-18GJK (M.D. Fla.
Nov. 10, 2015). This Court agrees with the reasoning in Coatney:
Whether Defendants used an ATDS when making telephone calls
to Plaintiff is a threshold issue for liability under the TCPA and for
the scope of discovery. A stay will conserve judicial resources, will

help clarify the law, and will enable this Court to render a sound
decision. Importantly, Plaintiff has not shown that he will be
prejudiced by a stay at such an early stage in the litigation. It is
not likely the stay will be lengthy given that ACA International has
been fully-briefed as of February 2016 and the potential prejudice
is minimal. Lastly, granting a stay will reduce the burden of
litigation on the parties and the Court by allowing the Court to
avoid issuing a dispositive Order in the midst of an uncertain legal
environment.
No. 16-cv-389-ORL-22TBS, 2016 WL 4506315, at *2 (internal quotations and
citations omitted).
Here, the Court also considers persuasive that oral arguments in ACA
International occurred on October 19, 2016, and––far from “indefinite” or
“indeterminate”––a decision remains imminent. (Mot. Ex. 3, ECF No. 17-3.)
Further, Ocwen has raised factual challenges to Jacobs’s prerecorded-voice
claims. If the Court were to find that Jacobs failed to sustain a TCPA claim
based on the use of a prerecorded voice, the Court would still need to
determine whether Ocwen used an ATDS, as defined in the FCC Order or
possibly as redefined by the D.C. Circuit. Thus, a limited stay is appropriate.
Accordingly, the Court grants the motion to stay (ECF No. 17). The case
will remain stayed until the issuance of the opinion from the D.C. Circuit. The
parties must notify the Court within seven days of the issuance of the opinion
from the D.C. Circuit. Further, Ocwen shall file a status report with this Court
every forty-five days, beginning on May 30, 2017, indicating the status of
ACA International. In the meantime, the Court directs the Clerk to
administratively close this case.
Done and ordered, at Miami, Florida, on April 13, 2017.
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Robert N. Scola, Jr.
United States District Judge