JOHNSON v. NAVIENT SOLUTIONS, INC.

Filing 47

ORDER denying Defendant's 43 Motion to Stay this action pending a ruling by the Supreme Court. Signed by Judge Larry J. McKinney on 12/15/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

RANDY JOHNSON, on behalf of himself
and all others similarly situated,
Plaintiff,
vs.
NAVIENT SOLUTIONS, INC.,
f/k/a SALLIE MAE, INC.,
Defendant.

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No. 1:15-cv-00716-LJM-MJD

ORDER ON DEFENDANT’S MOTION TO STAY
Defendant Navient Solutions, Inc. (“Navient”) has moved to stay this action
pending a ruling by the Supreme Court in the cause styled Robins v. Spokeo, Inc., 742
F.3d 409 (9th Cir. 2014), cert. granted, 135 S. Ct. 1892 (2015). Dkt. No. 43. Plaintiff
Randy Johnson, on behalf of himself and all others similarly situated (“Johnson”),
opposes the motion.
For the reasons stated herein, the Court DENIES the Motion to Stay.
I. DISCUSSION
In this case, Johnson alleges that Navient violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”), when it used an automatic
telephone dialing system, or an artificial prerecorded voice, to place non-emergency calls
to his cell phone without his permission. Compl. ¶ 53. Johnson seeks both injunctive and
monetary relief. Compl. ¶¶ 54(e) & (f).
Navient claims that Johnson has abandoned his claim for actual damages;
therefore, because he cannot show harm and rests on statutory damages alone,

depending upon the ruling in Robins, he may not have standing to bring suit. Dkt. No. 43
at 1-8. In Robins, the issue is whether or not a plaintiff has standing based on a claim for
statutory damages alone. See Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015). Navient
asserts that it would save the time and effort by the parties as well as conserve judicial
resource to stay this action until Robins is decided. Id. at 3-7. Navient contends that a
stay is the growing trend among district courts facing an “injury in law” claim. Id. at 2 &
n.1 (citing cases).
To the contrary, Johnson asserts that the Supreme Court’s grant of certiorari in
another case does cannot change current Seventh Circuit precedent that concluded that
actual damages are not a precondition to recover statutory damages under the Fair Credit
Reporting Act (“FCRA”), a similar consumer protection statute. Dkt. No. 45 at 2-4 (citing,
inter alia, Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 622 (7th Cir. 2007)).
Johnson also claims that he is asserting a claim for actual damages/actual injury and that
his failure to produce documentary evidence of those damages to date cannot preclude
him from continuing to pursue that claim. Id. at 5-8. Further, Johnson argues that the
wrongful, active intrusion into Johnson’s life is actionable because preservation of privacy
is one of the primary purposes of the TCPA. Id. at 9-12.
The Court has the inherent power to issue a stay to promote efficiency and to save
time and money for litigants. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). As
Navient suggests, the Court “should grant a motion to stay if a higher court in a separate
case will decide issues of law that are significant to the case sought to be stayed.” Dkt.
No. 43, at 4 (citing Cambell v. Wagner, No. NA 86-271-C, 1987 WL 16945, at *1 (S.D.
Ind. May 18, 1987)). The Court may consider three factors in ruling on the Motion to Stay:

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the prejudice or tactical disadvantage to the non-moving party; whether or not issues will
be simplified by the decision in the other case; and whether or not a stay will reduce the
burden of litigation on a party. See Cook Inc. v. Endologix, Inc., No. 1:09-cv-01248-WTLTAB, 2010 WL 325960, at *1 (S.D. Ind. Jan. 21, 2010).
Based on the allegations in the Complaint and the TCPA’s protection of Johnson’s
privacy rights, the Court concludes that Johnson has stated a claim for actual harm, upon
which he may rely to provide standing. Accord Schumacher v. Credit Protection Ass’n,
Cause No. 4:13-cv-00164-SEB-DML, 2015 WL 5786139, at *5 (S.D. In. Sept. 30, 2015);
Martin v. Leading Edge Recovery Solutions, LLC, Cause No. 11 C 5886, 2012 WL
3292838, at *2 (N.D. Ill. Aug. 10, 2012) (citing TCPA, 105 Stat. 2394, note following 47
U.S.C. § 227 (Congressional statement of findings)); Anderson v. AFNI, Inc., No. CIV.A.
10-4064, 2011 WL 1808779, at *6 (E.D. Pa. May 11, 2011). See also Dkt. No. 45 at 1011 (discussing Senator Hollings’, FCC Commissioner Jessica Rosenworcel’s, and FCC
Chairman Tom Wheeler’s remarks regarding the purpose of the TCPA to protect
consumer’s right to privacy). Johnson has alleged repeated automated calls to his cell
phone directed to collection of a debt owed by a third-party. Compl. ¶¶ 10-13. His
attempts to stop the calls by explaining that he was not the person Navient was looking
for went unheeded. Id. Any harassment caused by these calls could be actionable.
Further, the Court is not persuaded by Navient’s argument that Johnson has abandoned
his claim for actual damages.

Although he would need proof of monetary and/or

compensatory damages to recover them at trial, discovery is not over and it is evident
that he could prove some harm to his privacy.

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For these reasons, Navient’s claim that Johnson’s standing is predicated only on
an injury in law fails. As a result, delay will unduly prejudice Johnson because the Robins
decision will not affect his entitlement to relief for the harm to his privacy rights he claims
were caused by Navient’s alleged violation of the TCPA.
II. CONCLUSION
Defendant Navient Solutions, Inc.’s Motion to Stay is DENIED.
IT IS SO ORDERED this 15th day of December, 2015.

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LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution:
Aaron David Radbil
GREENWALD DAVIDSON RADBIL PLLC
[e-mail]
Michael L. Greenwald
GREENWALD DAVIDSON RADBIL PLLC
[e-mail]
Ryan Scott Lee
KROHN & MOSS LTD.
[e-mail]
Lisa M. Simonetti
VEDDER PRICE LLP
[e-mail]
Jeanah Park
VEDDER PRICE P.C.
[e-mail]
David M. Cummings
VEDDER PRICE, P.C.
[e-mail]

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