DeJonghe v. Ocwen Loan Servicing, LLC et al

Filing 25

ORDER Granting Defendants' 9 Motion to Stay. Signed by District Judge Terrence G. Berg. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARBARA DEJONGHE,
Plaintiff,
Case No. 17-11488
Hon. Terrence G. Berg

v.
OCWEN LOAN SERVICING, LLC,
and OCWEN MORTGAGE
SERVICING, INC.,
Defendants.

ORDER GRANTING DEFENDANTS’
MOTION FOR STAY (Dkt. 9)
Currently before the Court is Defendants’ Motion to Stay Proceedings
(“Motion”) pending the United States Court of Appeals for the D.C. Circuit’s
decision in ACA Int’l v. FCC, Appeal No. 15-1211 (D.C. Circuit) (filed on Oct. 13,
2015). The Court, having reviewed all papers and arguments submitted pertaining
to this Motion, NOW FINDS AND RULES AS FOLLOWS: Defendants’ Motion to
Stay Proceedings is GRANTED. Defendants’ motion to dismiss (Dkt. 10) and
motion to dismiss the amended complaint (Dkt. 16) are hereby DENIED
WITHOUT PREJUDICE. These motions may be refiled after the stay is lifted and
will be considered by the Court.
BACKGROUND
On May 9, 2017, Plaintiff filed the instant action, asserting six claims against
Defendants: (1) negligent violation of the TCPA, (2) knowing and/or willful violation

of the TCPA, (3) negligence, (4) negligence per se – TCPA, (5) negligent violations of
Article Nine of the Michigan Occupational Code on Debt Collection, and (6) willful
violation of Article Nine of the Michigan Occupational Code on Debt Collection. The
crux of each of Plaintiff’s claims is the allegation that between December 4, 2011
and October 19, 2015 Plaintiff received numerous telephone calls from Defendants
on her cellular telephone number and that Defendants placed the calls allegedly
using an automatic telephone dialing system “ATDS.” (See Compl. ¶ 24.).
Defendants contend that the decision of the United States Court of Appeals for the
District of Columbia Circuit in ACA Int’l is likely to be reached in the near future,
and may impact the course of this litigation. This point is well-taken.
DISCUSSION
A district court has “broad discretion to stay proceedings as an incident to its
power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). A court may “find it . . . 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.”
Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979). The rule
applies to judicial proceedings and does not require the issues of such proceedings
be necessarily controlling of the action
The D.C. Circuit’s decision in ACA Int’l is significant because it will address
the meaning of the term “autodialer” under the TCPA. How this definition is
understood may well be dispositive of the case before the Court and, at a minimum,

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the D.C. Circuit’s interpretation of the TCPA will provide persuasive authority
material to this Court’s decision. Under such circumstances, a stay is appropriate.
See Jones v. Credit Acceptance Corp., 2016 WL 7320919 (E.D. Mich. Oct. 31, 2016)
(granting stay pending ACA Int’l decision); see also Ricketts v. Consumers Energy
Co., 2017 WL 2351731, at *1 (E.D. Mich. May 31, 2017) (same). A stay pending the
D.C. Circuit’s decision will also serve to conserve the resources of the parties and
the Court while avoiding the wasted effort that may be involved in proceeding
under an uncertain legal framework. Plaintiff has not articulated any concrete
prejudice she might suffer if these proceedings were stayed at this stage.1 Moreover,
given that the D.C. Circuit heard oral argument in October 2016, the Court
anticipates that a stay would be relatively brief, ameliorating any prejudice to
Plaintiff. See Jones, 2016 WL 7320919 at *3 (“In light of the uncertainty
surrounding the proper interpretation of the TCPA and the lack of demonstrated
prejudice to [the plaintiff], the interest of judicial economy warrants a stay.”).
For these reasons, IT IS HEREBY ORDERED that Defendants’ motion to
stay proceedings is GRANTED. The parties shall inform the court immediately of
the D.C. Circuit's ruling in ACA Int'l v. FCC.

The primary argument of prejudice that Plaintiff advances relates to the potential spoliation of
evidence. In particular, Plaintiff argues that she “may” have difficulty obtaining records from third
party cell phone carriers. However, it is unlikely that a short stay would prevent Plaintiff from
obtaining any additional records from her own cell phone carrier, regarding calls to her own phone
number. Likewise, Plaintiff’s argument that she may be unable to obtain Defendants’ call records
and or the records of any third party vendor (which Plaintiff fails to identify) should a stay be
granted is also not well-taken. Defendants are under a continuing obligation to preserve all records
concerning their calls to Plaintiff during the pendency of this stay. Any destruction of relevant
records by Defendants would be subject to sanctions and would also arguably allow an adverse
inference that the records contained evidence helpful to the Plaintiff.

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SO ORDERED.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: December 21, 2017

Certificate of Service
I hereby certify that this Order was electronically submitted on December 21,
2017, using the CM/ECF system, which will send notification to each party.

s/H. Monda
Case Manager
in the absence of A. Chubb

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