Moskowitz v. American Savings Bank, F.S.B.

Filing 37

ORDER GRANTING DEFENDANT'S MOTION TO STAY PENDING DECISION OF D.C. CIRCUIT Motions terminated: 14 MOTION to Stay Pending Decision of D.C. Circuit filed by American Savings Bank, F.S.B.. Case stayed.. Signed by MAGISTRATE JUDGE KEVIN S.C. CHANG on 10/30/2017. Defendant's Motion to Stay Pending Decision of D.C.Circuit, filed July 19, 2017, is HEREBY GRANTED as stated above.The partie s are directed to file status reports and request a status conference within two weeks after the D.C. Circuit issues its opinion in ACA International. (eps, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CRAIG MOSKOWITZ, on behalf
of himself and others
similarly situated,
Plaintiff,
vs.
AMERICAN SAVINGS BANK,
F.S.B.,
Defendant.
____________________________

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CIVIL NO. 17-00299 HG-KSC
ORDER GRANTING DEFENDANT’S
MOTION TO STAY PENDING
DECISION OF D.C. CIRCUIT

ORDER GRANTING DEFENDANT’S MOTION TO STAY
PENDING DECISION OF D.C. CIRCUIT
Before the Court is Defendant American Savings Bank,
F.S.B.’s (“Defendant”) Motion to Stay Pending Decision of D.C.
Circuit, filed July 19, 2017.

On September 25, 2017,

Plaintiff Craig Moskowitz (“Plaintiff”) filed an Opposition.1
Defendant filed a Reply on October 2, 2017.

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The Opposition and other documents filed by Plaintiff
violate Local Rule 10.2(b), which requires that
the name, Hawaii bar identification number,
address, telephone number, facsimile number, and
e-mail address of counsel . . . and the specific
identification of each party represented by name
and interest in the litigation (e.g., plaintiff,
defendant, etc.) shall appear in the upper lefthand corner of the first page of each paper
presented for filing.
Local Rule 10.2(b).

This matter came on for hearing on October 25, 2017.
Justin Brackett, Esq., appeared, and Aytan Bellin, Esq.,
appeared by phone, on behalf of Plaintiff.

Kevin Herring,

Esq., and Michael Vieira, Esq., appeared, and John Doroghazi,
Esq., appeared by phone, on behalf of Defendant.

After

careful consideration of the parties’ submissions, the
applicable law, and the arguments of counsel, the Court HEREBY
GRANTS the Motion for the reasons articulated below.
ANALYSIS
Defendant requests a stay of this action pending the
issuance of the D.C. Circuit’s decision in ACA International
v. FCC, No. 15-1211, (D.C. Cir. filed Nov. 25, 2015), which
concerns the interpretation of automatic telephone dialing
systems (“ATDS”).

Defendant argues that because the decision

will govern claims and issues before this Court, a stay would
promote economy and conserve resources.

Plaintiff counters

that Defendant has not demonstrated a strong likelihood of
success on the merits; that Defendant would not suffer
hardship and inequity if this action proceeds without a ruling
from the D.C. Circuit; and he will suffer substantial
prejudice because a stay could cause a delay of several years.
District courts have “broad discretion to stay
proceedings as an incident to its power to control its own

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docket.”

Clinton v. Jones, 520 U.S. 681, 706-07 (1997)

(citation omitted); Landis v. North American Co., 299 U.S.
248, 254 (1936) (“[T]he power to stay proceedings is
incidental to the power inherent in every court to control the
disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants.”).
A trial court may, with propriety, find it is
efficient for its own docket and the fairest
course for the parties to enter a stay of an
action before it, pending resolution of
independent proceedings which bear upon the
case. This rule applies whether the separate
proceedings are judicial, administrative, or
arbitral in character, and does not require that
the issues in such proceedings are necessarily
controlling of the action before the court.
Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863–64
(9th Cir. 1979); Mediterranean Enters., Inc. v. Ssangyong
Corp., 708 F.2d 1458, 1465 (9th Cir. 1983) (affirming district
court decision to stay proceedings pending outcome of
arbitration as to certain claims).
In exercising its judgment, the court “must weigh
competing interests and maintain an even balance.”

Landis,

299 U.S. at 254-55; Malama Mauka v. Rumsfeld, 136 F. Supp. 2d
1155, 1165 (D. Haw. 2001) (“[T]he competing interests that
will be affected by the granting or refusing of a stay must be
weighed.”).

These competing interests include

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the possible damage which may result from the
granting of a stay, the hardship or inequity
which a party may suffer in being required to
go forward, and the orderly course of justice
measured in terms of the simplifying or
complicating of issues, proof, and questions of
law which could be expected to result from a
stay.
CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962) (citing
Landis, 299 U.S. at 254–55); Malama Mauka, 136 F. Supp. 2d at
1165 (citing Filtrol Corp. v. Kelleher, 467 F.2d 242, 244 (9th
Cir. 1972)) (some citations omitted).

“If there is even a

fair possibility that the stay will work damage to someone
else, the stay may be inappropriate absent a showing by the
moving party of hardship or inequity.”

Dependable Highway

Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th
Cir. 2007) (quotation omitted).

Courts should not grant stays

“unless it appears likely the other proceedings will be
conducted within a reasonable time in relation to the urgency
of the claims presented to the court.”

Leyva, 593 F.2d at

864.
As an initial matter, the Court notes that Plaintiff
relies upon the incorrect standard in opposing the Motion.2

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Plaintiff applies the standard set forth in Nken v.
Holder, 556 U.S. 418 (2009), which concerns the stay of
enforcement of judgments or orders during the pendency of an
appeal. Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012)
(applying Nken in context of stay of the district court’s
order pending an appeal); Washington v. Trump, 847 F.3d 1151,
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This case does not concern the stay of a judgment or an order
pending an appeal originating from this case.

Applying the

proper standard stated above, and exercising its broad
discretion to stay proceedings as an incident to its power to
control its own docket, the Court GRANTS the Motion and stays
the case pending the issuance of the D.C. Circuit’s decision.3
The Court finds it reasonable to impose a brief stay
to await resolution of legal issues that bear on the
adjudication of the claims in this action.
857 at 863.

Leyva, 593 F.2d

Although a stay will slightly delay the

disposition of this case, Plaintiff will not suffer undue
prejudice.

Plaintiff speculates that the stay could drag on

indefinitely because the D.C. Circuit decision will likely be
appealed to the Supreme Court.

Plaintiff’s concerns about

circumstances that have yet to materialize do not support the

1164 (9th Cir. 2017) (same).

Nken has no applicability here.

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Many courts have stayed proceedings pending the D.C.
Circuit’s ruling. See, e.g., Washington v. Six Continents
Hotels, Inc., No. 216CV03719ODWJEMX, 2017 WL 111913, at *2
(C.D. Cal. Jan. 9, 2017); Bowden v. Contract Callers, Inc.,
No. 16-CV-06171-MMC, 2017 WL 1732017, at *3 (N.D. Cal. Apr. 5,
2017); Brickman v. Facebook, Inc., No. 16-CV-00751-TEH, 2017
WL 1508719, at *4 (N.D. Cal. Apr. 27, 2017); Clayton v.
Synchrony Bank, 219 F. Supp. 3d 1006, 1011 (E.D. Cal. 2016);
Small v. GE Capital, Inc., No. EDCV152479JGBDTBX, 2016 WL
4502460, at *3 (C.D. Cal. June 9, 2016); Lilly v. Synchrony
Fin., No. 2:16-CV-2687-JCM-VCF, 2017 WL 1370698, at *2 (D.
Nev. Apr. 7, 2017).
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denial of a stay.

Defendant is not asking for such a lengthy

stay, nor would the Court be inclined to allow it.

The stay

imposed here is limited to the D.C. Circuit’s decision.

Any

request for an extension of the stay would be evaluated based
on the attendant circumstances and Plaintiff would have ample
opportunity to challenge the request.
Judicial economy will be served, and potentially
unnecessary expenses conserved, by a short stay.

It makes

little sense for the parties and the Court to proceed with
litigation while applicable standards remain unsettled.
Indeed, requiring the parties to go forward will cause them
“to spend time and money conducting discovery on a critical
issue of liability without knowing what law will ultimately
apply at summary judgment or at trial—a fool’s errand, to say
the least.”

Washington, 2017 WL 111913, at *2.

Based on the foregoing, this case is STAYED until
the D.C. Circuit issues its opinion in ACA International.
EXCEPTED from the stay is the Findings and Recommendation to
Grant in Part and Deny in Part Defendant American Savings
Bank, F.S.B.’s Motion for Rule 41(d) Costs and Stay of
Proceedings and any orders and proceedings related thereto.
Final resolution of Defendant’s Motion for Rule 41(d) Costs
and a Stay of Proceedings should not be stayed because it does
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not concern the underlying claims in this action and the D.C.
Circuit’s decision will have no bearing on its disposition.
CONCLUSION
Defendant’s Motion to Stay Pending Decision of D.C.
Circuit, filed July 19, 2017, is HEREBY GRANTED as stated
above.
The parties are directed to file status reports and
request a status conference within two weeks after the D.C.
Circuit issues its opinion in ACA International.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, October 30, 2017.

_____________________________
Kevin S.C. Chang
United States Magistrate Judge

Civil No. 17-00299 HG-KSC; Moskowitz v. American Savings Bank,
F.S.B.; ORDER GRANTING DEFENDANT’S MOTION TO STAY PENDING DECISION OF
D.C. CIRCUIT

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