Garza v. Credit Union One

Filing 36

ORDER granting 30 Motion to Stay. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANGELA GARZA,
Case No. 17-10673
Plaintiff,
v.

Paul D. Borman
United States District Judge

CREDIT UNION ONE and AP
ACCOUNT SERVICES, LLC,

Mona K. Majzoub
United States Magistrate Judge

Defendants.
______________________________/
ORDER GRANTING DEFENDANTS’ MOTION TO STAY
PROCEEDINGS FOR UP TO 90 DAYS
Plaintiff Angela Garza alleges in this action that Defendants Credit Union One
and AP Account Services, LLC made repetitive automated calls to her mobile phone
in violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.
Now before the Court is Defendants’ Motion to Stay Proceedings (ECF No. 30),
through which Defendants seek a stay of this case pending the resolution of the
appeal before the United States Court of Appeals for the D.C. Circuit in ACA
International v. FCC, et al., No. 15-1211 (D.C. Cir. filed July 10, 2015). The D.C.
Circuit heard argument in ACA International on October 19, 2016. Finding that there
is no need for oral argument here, the Court will rule on Defendants’ Motion based
on the parties' written submissions. See E.D. Mich. LR 7.1(f).
Defendants argue that certain issues raised in ACA International could have

bearing on this action: specifically, the proper standards for determining when a
piece of telecommunications equipment constitutes an automatic telephone dialing
system (“ATDS”) under the TCPA, and when a plaintiff has effectively revoked
consent to receive calls. A stay of this action is thus warranted, according to
Defendants, because ACA International could narrow the issues in this case and
potentially conserve the resources of the parties as well as the Court.
This Court and other courts within the Eastern District of Michigan have
stayed similar TCPA actions based on a recognition that the D.C. Circuit’s ruling in
ACA International could be highly relevant in the adjudication of claims like those
asserted in this action. See Patterson v. Ally Financial, Inc., No. 16-CV-14505, ECF
No. 15 (E.D. Mich. Apr. 5, 2017); see also Tilley v. Ally Fin., Inc., No. 16-CV14056, 2017 WL 1732021 (E.D. Mich. Apr. 26, 2017); Jones v. Credit Acceptance
Corp., No. 15-CV-13165, 2016 WL 7320919 (E.D. Mich. Oct. 31, 2016), report and
recommendation adopted, No. 15-CV-13165, 2016 WL 7242141 (E.D. Mich. Dec.
15, 2016). Plaintiff does not distinguish these cases.
Nor is the Court persuaded that Plaintiff would suffer prejudice if the Court
grants Defendants’ requested stay. The only specific argument that Plaintiff makes
in this regard is that Defendants only filed their Motion to Stay Proceedings some
two months after she served her discovery requests. The Court declines to find that
Plaintiff was unfairly surprised by the instant Motion, however, given that
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Defendants had made clear in the parties’ Joint Discovery Plan that they were
“exploring the possibility of filing a motion for a stay pending the outcome” of ACA
International. (ECF No. 25 at 4, Pg ID 155.)
Rulings from the D.C. Circuit regarding what equipment is covered by the
TCPA or what constitutes consent under the statute—the two issues that underlie the
ACA International appeal—could provide useful guidance in the litigation of claims
premised on the use of autodialing equipment to place nonconsensual phone calls.
This Court agrees with the other courts within this District that have recognized as
much.1 Accordingly, the Court GRANTS Defendant’s Motion to Stay, and
ORDERS that this matter be stayed for up to 90 days from the date of this Order.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: October 13, 2017

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Plaintiff cites Currier v. PDL Recovery Grp., LLC, No. 14-CV-12179, 2017 WL
712887 (E.D. Mich. Feb. 23, 2017), in arguing that courts in the Sixth Circuit have
weighed in on the issue of consent under the TCPA. Currier is unavailing to
Plaintiff, both because the court in Currier did not address the other issue in ACA
International that could bear on this case—what constitutes an ATDS—and because
the Currier court’s decision depended partly on the same administrative order that
is challenged in ACA International. See Currier, 2017 WL 712887, at *9 (citing In
the Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, 30 F.C.C. Rcd. 7961, 7996 ¶ 64, 2015 WL 4387780 (2015)).
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on October 13,
2017.
s/D. Tofil
Deborah Tofil, Case Manager

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