Coleman v. Verde Energy USA, Inc.

Filing 28

ORDER denying 17 Motion to Stay. Signed by Judge David R. Herndon on 4/18/2017. (kmb2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER COLEMAN,
Plaintiff,
v.

No. 3:17-cv-00062-DRH-SCW

VERDE ENERGY USA, INC.,
Defendant.
ORDER
HERNDON, District Judge:
Before the Court is defendant Verde Energy USA, Inc.’s (“Verde”) motion to
stay proceedings pending a forthcoming decision from the United States Court of
Appeals for the District of Columbia Circuit (Doc. 17).
Coleman (“Coleman”) opposes the motion (Doc. 22).

Plaintiff Christopher

Based on the following,

Verde’s motion to stay is DENIED.
I. BACKGROUND
In January 2017, Coleman filed a class action suit naming Verde and
alleging violation of 47 U.S.C. § 227, Telephone Consumer Protection Act (Doc. 1).
Specifically, Coleman contended Verde routinely violated section 227(b)(1)(A)(iii)
by utilizing an automatic telephone dialing system (“ATDS”) to make nonemergency calls to cellular phone numbers without receiving prior express
consent (Id.).

Verde denied allegations and claimed it made no calls using an ATDS as
defined by § 227(a)(1) 1 (Doc. 18 at 2). In support, Verde points to a July 2015
Federal Communications Commission (“FCC”) declaratory ruling which thirdparty objectors petitioned the United States Court of Appeals for the D.C. Circuit
to review; seeking clarification on treatment of “capacity” within the §227(a)(1)
definition of ATDS, and characterization of “capacity” in conformity with a caller’s
right of due process and free speech (Id.).
Currently, this FCC decision is pending in ACA Int’l v. Fed Commc’ns

Comm’n, No. 15-cv-01211 (D.C. Cir. 2015) which Verde believes could be
dispositive of the instant matter (Id. at 3). As a result, Verde requests the Court
stay Coleman’s action pending clarification (Id. at 7).

In opposition, Coleman

argues, inter alia, Verde has not met its burden to obtain a stay because no clear
case of hardship or inequity has been made; and moreover, regardless of the
outcome in ACA Int’l, discovery must still be conducted to determine the
configuration of Verde’s phone systems (Doc. 22).
II. LEGAL STANDARD
“The power to stay a case 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.’ ” Walker v. Merk & Co., Inc., No. 05cv-360 DRH, 2005 WL 1565839 at *2 (S.D. Ill. June 22, 2005) (Herndon, J.)
(citing Landis v. North American Co., 299 U.S. 248, 254 (1936)). The grant of a
1

ATDS is defined as “equipment which has the capacity—(A) to store or produce telephone
numbers to be called, using a random or sequential number generator; and (B) to dial such
number.” § 227(a)(1).

stay is “an exercise of judicial discretion, and the ‘party requesting a stay bears
the burden of showing that the circumstances justify an exercise of that
discretion. ’ ” Ind. State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 961
(2009) (quoting Nken v. Holder, 556 U.S. 418, 433-34 (2009)); see also Nken, at
443 (“[a] stay is not a matter of right, even if irreparable injury might otherwise
result”). “In considering a motion for stay, courts consider both the interest of
judicial economy and the potential prejudice or hardship to the parties.” Walker,
2005 WL 1565839, at *2. “[I]f there is even a fair possibility that the stay *** will
work damage to some one else,” the party seeking the stay “must make out a clear

case of hardship or inequity in being required to go forward.” Landis, 200 U.S. at
255 (emphasis added).
Generally, the following three factors are balanced when deciding whether
to grant a motion to stay proceedings: “(i) whether a stay will unduly prejudice or
tactically disadvantage the non-moving party, (ii) whether a stay will simplify the
issues in question and streamline the trial, and (iii) whether a stay will reduce the
burden of litigation on the parties and the court.” Guil v. All. Res. Partners, L.P.,
No. 16-CV-0424-NJR-DGW, 2017 WL 1132613 (S.D. Ill. Mar. 3, 2017) (quoting

Markel Am. Ins. Co. v. Dolan, 787 F. Supp. 2d 776, 779 (N.D. Ill. 2011)); see also
In re Groupon Derivative Litig., 882 F. Supp. 2d 1043, 1045 (N.D. Ill. 2012); SeKure Controls, Inc. v. Sennco Sols., 675 F. Supp. 2d 877, 879 (N.D. Ill. 2009);
Pfizer Inc. v. Apotex Inc., 640 F. Supp. 1006, 1007 (N.D. Ill. 2009).

III. ANALYSIS
Verde maintains the essence of Coleman’s claim turns on whether calls at
issue were made utilizing an ATDS; and, further argues a stay is warranted
pending the outcome of the D.C. Circuit’s ACA Int’l ruling, which in turn, would
clarify the statutory definition of ATDS. On the other hand, Coleman denotes,
among other things, that a ruling in ACA Int’l will not be dispositive of the matter,
and moreover, under Landis, Verde has not demonstrated a “clear case of
hardship or inequity.”
Under the instant circumstances a stay is not appropriate, and Verde’s
argument regarding clarification of the ATDS statutory definition is unpersuasive.
The D.C. Circuit Court of Appeals ruling in ACA Int’l has no dispositive effect on
the instant claim because—as Coleman has stated—discovery will still need to be
conducted in order to determine whether Verde’s calling system corresponds to
the newly clarified definition of ATDS. What is more, Verde fails to raise any
contention giving rise to a plausible consideration of facts under the 3-Factor
“Stay” Test. See Markel, 787 F. Supp. 2d at 779.
Verde attempts to argue non-existence of prejudice because Coleman is on
an “internal Do-Not-Call list; no calls regarding Verde have been made to him
since 2016; and no calls regarding Verde would be made to him during the stay if
granted. Contrarily, Coleman highlights potential prejudice with respect to absent
class members affected by Verde’s conduct via citing rational used in Cabiness v.

Educ. Fin. Sol., LLC, No. 16-cv-01109-JST, 2017 WL 167678, *3 (explaining
further delay and passage of time would increase difficulty locating class members

and increase dispersion of evidence). The Court is persuaded by Cabiness and
further believes Coleman will be prejudiced and tactically disadvantaged if a stay
is granted.
Additionally, the Court finds no simplification of issues or judicial efficiency
will be gained by grant of stay. As stated above, discovery must be conducted to

determine whether the statutory definition of ATDS in ACA Int’l is dispositive. It
is wholly inefficient to indefinitely postpone discovery, then—at some unknown
point in the future—conduct discovery proceedings which could have been
previously completed, all in order to determine whether Verde’s dialing system
aligns with the statutory definition in ACA Int’l. Similarly, a grant of stay will not
reduce the burden of litigation on parties or the Court.
III. CONCLUSION
Based on the foregoing, Verde has failed to raise any issues of hardship or
inequity which are required to implore a grant of stay. See Landis, 299 U.S. at
255. As a result, and in the interest of judicial economy, as well as potential
prejudice to litigants, see Walker, 2005 WL 1565839 at *2, Verde’s motion for
stay of proceedings is DENIED.
IT IS SO ORDERED.
Signed this 18th day of April, 2017.

Digitally signed by Judge
David R. Herndon
Date: 2017.04.18
12:51:23 -05'00'
UNITED STATES DISTRICT JUDGE