Machesney v. Lar-Bev of Howell, Inc. et al

Filing 98

ORDER Denying 96 Motion to Stay. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Shari Machesney,
Plaintiff,
v.

Case No. 10-10085

Lar-Bev of Howell, Inc., et al.,

Honorable Sean F. Cox

Defendants.
_________________________________________/
ORDER DENYING
DEFENDANTS’ MOTION FOR
CONTINUED STAY OF PROCEEDINGS
This putative class action has a very long history, that need not be repeated here. Three
separate, but very similar, putative class actions were assigned to this Court at or around the
same date: 1) Machesney v. Lar-Bev of Howell, Inc., et al. (Case No. 10-10085) (“Machesney”);
2) APB Associates, Inc. v. Bronco’s Saloon, Inc., et al. (Case No. 09-14959) (“APB Associates”);
and 3) Compressors Engineering Corp. v. Manufacturers Financial Corp. et al. (Case No. 0914444) (“Compressors Engineering”). All three cases were filed by the same Plaintiff’s counsel
and assert claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”).
This Court initially dismissed each of these cases for lack of subject matter jurisdiction
because, at the time, there was an unpublished Sixth Circuit decision holding that “state courts’
maintenance of exclusive jurisdiction over private rights of action under the TCPA and federal
courts’ concomitant lack of jurisdiction to hear such private claims are well-settled.” Dun-Rite
Constr., Inc. v. Amazing Tickets, Inc., 2004 WL 3239533 (6th Cir. 2004).
Plaintiffs appealed in all three cases. All three of these cases incurred a delay due to the
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resolution of the issue of whether federal-question jurisdiction exists over TCPA cases,
ultimately ruled upon by the United States Supreme Court, which ruled that federal-question
jurisdiction does exist.1
Upon remand, each of these three cases proceeded to discovery, proceeding along similar
scheduling orders.
Back in 2013, this Court denied motions for class certification in each of these cases.
Because this Court denied the motions for class certification, each of the three cases proceeded
with respect to the named Plaintiff’s individual claims.
The Defendants in each of the three cases later filed motions, asking this Court to dismiss
the case as moot because Defendants had made an offer of judgment that provided each of the
named Plaintiffs with all the relief that they could potentially obtain if they prevailed at trial.
This Court ultimately granted those motions, based upon the Sixth Circuit’s position regarding
the mootness-by-unaccepted-offer-of-judgment theory.
Shortly thereafter, Plaintiffs filed motions in each case asking the Court to vacate the
judgments and reconsider class certification in each case. At a September 17, 2015 hearing on
those motions, counsel for the parties agreed that, given that the United States Supreme Court
was scheduled to hear a case that would resolve a circuit split on the viability of the mootnessby-unaccepted-offer-of-judgment theory in October of 2015, it would be best for the Court to
take the motions under advisement until there was a ruling in that case. This Court agreed to do
so.

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See Charvet v. EchoStar Satellite, LLC, 630 F.3d 459, 463 (6th Cir. 2010) and Mims v.
Arrow Fin. Srvs., LLC, 132 S.Ct. 740 (2012).
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On January 20, 2016, the Supreme Court issued its decision in Campbell-Ewald v. Gomez
on January 20, 2016, ruling that an unaccepted offer of judgment does not moot a plaintiff’s
case. Campbell-Ewald v. Gomez, 577 U.S. __ (2016). As a result, Plaintiff’s motions asking this
Court to vacate the judgments issued in these cases and reconsider class certification are now
ripe for a decision by this Court.
Defendants in two of the three cases at issue (APB Associates and Machnesney),
however, filed a motion asking this Court to stay this action until the Supreme Court issues a
decision in Spokeo, Inc. v. Robins, No. 13-1339. In that case, the Supreme Court will be
reviewing the Ninth Circuit’s standing ruling in a case involving the federal Fair Credit
Reporting Act. Defendants’ motions ask this Court to exercise its discretion and stay these
actions pending a ruling in Spokeo. Defendants believe the ruling in that case may have some
potential implications in these cases.
The Court finds that the issues have been adequately presented in the parties’ briefs and
that oral argument would not aid the decisional process. See Local Rule 7.1(f)(2), U.S. District
Court, Eastern District of Michigan. The Court therefore orders that the motions will be decided
upon the briefs.
Having considered Defendants’ Motions to Stay, this Court declines to exercise its
authority to stay this action pending a ruling by the Supreme Court in Spokeo. This concludes
that it is unlikely that the ruling in Spokeo will impact these cases. The Court also concludes that
the history of these actions and the amount of time that passed since they were filed also militate
against the requested stay.

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Accordingly, IT IS ORDERED that Defendants’ Motion for Stay is DENIED.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 17, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 17, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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