Griffin v. Nationstar Mortgage LLC

Filing 14

ORDER denying 6 Motion to Stay Proceedings Signed by Magistrate Judge F. Keith Ball on 8/23/17 (RBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
BEATRICE GRIFFIN

PLAINTIFF

V.

CASE NO. 3:17-cv-100-DPJ-FKB

NATIONSTAR MORTGAGE LLC

DEFENDANT

ORDER DENYING DEFENDANT’S MOTION TO STAY
Before the Court is Defendant Nationstar Mortgage, LLC’s (“Nationstar”) Motion to Stay
Proceedings [6]. Nationstar seeks a stay of the case pending a ruling by the United States Court of
Appeals for the District of Columbia Circuit in ACA International v. FCC, et al., Case No. 151211. For the reasons described herein, the Court finds that the motion should be denied.
Background
Griffin filed her complaint on February 14, 2017, alleging that Defendant violated 47
U.S.C. § 227, et seq, the Telephone Consumer Protection Act (“TCPA”). [1]. Griffin alleges that
Nationstar engaged in a pattern of conduct beginning in August 2015 and continuing through
February 2017 wherein Nationstar placed upwards of 400 automated phone calls to her cellular
telephone. Id. at 3-8. Griffin alleges that:
Upon information and belief, some or all of the calls the Defendant made to
Plaintiff’s cellular telephone number were made using an “automatic telephone
dialing system” which has the capacity to store or produce telephone numbers to be
called, using a random or sequential number generator (including but not limited to
a predictive dialer) or an artificial or prerecorded voice; and to dial such numbers
as specified by 47 U.S.C. § 227(a)(1). . . .
Id. at 4. Griffin alleges that in or about September 2015, she verbally revoked any consent
Nationstar believed it might have had to call her cellular telephone number. Id. at 4-5. She alleges

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that she continued to receive calls, and on at least four different occasions verbally requested that
Nationstar stop calling her. Id. at 5-6. Griffin further alleges that “each of the calls at issue were
placed by the Defendant using a ‘prerecorded voice,” as specified by the TCPA, 47 U.S.C. §
227(b)(1)(A).” Id. at 4.
Nationstar moves to stay the case on the basis that the D.C. Circuit’s pending ruling in ACA
International v. FCC, et al, “could be dispositive of many if not all of . . . Griffin’s claims in this
case.” [7] at 1. Nationstar argues that ACA International will decide both the definition of an
“automatic telephone dialing system” (“ATDS”) and whether the TCPA permits a plaintiff to
verbally revoke consent to receive phone calls. Id. Nationstar argues that those issues are at the
center of this lawsuit. Id. at 1-3. Because ACA International would constitute controlling law in
this case, Nationstar moves to stay the case pending the D.C. Circuit’s decision. Id. Nationstar
cites numerous other district court orders staying similar litigation pending a ruling in ACA
International. Id. at 4.
Griffin responds, citing a myriad of Eleventh Circuit cases,1 that a stay is unwarranted. [8].
She argues that it is unclear whether ACA International will even address the definition of an
ATDS. She further contends that even if the case does address that definition, her allegation that
Nationstar used a prerecorded voice when placing the phone calls is an independent violation of
the TCPA that would be unaffected by the outcome of ACA International. Id. at 5-10. She further
contends that the decision in ACA International “is unlikely to impact, simplify or streamline the
case.” Id. at 5. She too cites numerous other district court orders declining to stay litigation pending
a ruling in ACA International. Id. at 11-14.

Plaintiff’s brief exclusively cites post-1981 opinions from the United States Court of Appeals for the Eleventh
Circuit as controlling law in this case. However, as this matter is before the United States District Court for the
Southern District of Mississippi, the United States Court of Appeals for the Fifth Circuit provides the controlling
law.
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Legal Standard
"[T]he power to stay proceedings 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." Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “Generally, the power
to stay a pending matter derives from a trial court's wide discretion to control the course of
litigation.” United States v. $9,041,598.68, 163 F.3d 238, 251 (5th Cir. 1998).
Discussion
The Court is not persuaded that a stay is warranted in this case. Nationstar’s motion is
premised on the idea that ACA International will have a substantial bearing on the course of the
present litigation. If Griffin’s allegations were limited solely to Nationstar’s alleged use of an
ATDS in making the calls to Griffin, Nationstar’s argument would be highly persuasive, and the
Court would be inclined to grant a stay. However, in addition to alleging that the phone calls at
issue were made using an ATDS, Griffin further alleges that the phone calls were made using a
prerecorded voice. This is significant, since this issue is not presented in ACA International and
will not be affected by the outcome of that case.
Griffin’s claims are filed pursuant to Section 227 of the TCPA, which states:
Restrictions on use of telephone equipment
(b) Restrictions on use of automated telephone equipment.
(1) Prohibitions. It shall be unlawful for any person within the United
States, or any person outside the United States if the recipient is within the United
States - (A) to make any call . . . using any automatic telephone dialing
system or an artificial or prerecorded voice - ...
...
(iii) to any telephone number assigned to . . . cellular
telephone service . . . unless such call is made solely to collect a debt
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owed to or guaranteed by the United States;
47 U.S.C.S. § 227.
Virtually the entirety of Nationstar’s motion focuses on 42 U.S.C. § 227(b)(1)(A)’s
inclusion of the phrase “automatic telephone dialing system” as a prohibited act, and the definition
of that phrase provided in § 227(a)(1). Nationstar appears to be correct in that ACA International
will directly address the definition of ATDS as contained within § 227(a)(1). See, e.g., Rose v.
Wells Fargo Advisors, LLC, No. 1:16-CV-562-CAP, 2016 U.S. Dist. LEXIS 85287, at *3 (N.D.
Ga. June 14, 2016). However, Nationstar overstates the dispositive effect that a change in the
definition of ATDS as a result of a decision in ACA International may have on the present
litigation. Specifically, even if the D.C. Circuit were to decide ACA International in a way which
excluded the phone system at issue in this case from the definition of ATDS as contained in the
statute, Griffin has still alleged a completely independent cause of action under § 227(b)(1)(A).
Specifically, Griffin alleges that Nationstar violated the portions of the statute prohibiting a party
from making phone calls to a cellular telephone using either an ATDS or a prerecorded or
automated voice. 47 U.S.C. § 227(b)(1)(A). Here, Griffin has alleged Nationstar used both,
meaning that no matter the outcome of ACA International, this litigation will likely continue.
Other courts, in addressing this exact issue, have denied the requested stay when the
plaintiff also alleged that the phone calls contained a prerecorded voice. See Owens-Benniefield v.
Nationstar Mortg. LLC, No. 8:17-cv-540-T-33TGW, 2017 U.S. Dist. LEXIS 60777, at *5 (M.D.
Fla. Apr. 21, 2017)(“ Here, the decision of ACA International will not be dispositive. That case
questions the FCC's redefinition of the term "automated telephone dialing system" (ATDS) in the
agency's July 10, 2015, Order. But, Owens-Benniefield alleges that she received calls using both
an ATDS and an artificial or prerecorded voice.”)(internal citations omitted).

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Nationstar responds to this point by stating in its rebuttal that “investigation has shown that
very few if any of the alleged calls could be defined as having [a] ‘prerecorded voice’ . . . .” [10]
at 5. Nationstar does not elaborate on that investigation, nor does it provide any type of
corroborating. The Court is sympathetic to Nationstar’s argument, since, if true, it would mean
that ACA International could significantly impact discovery in this case. However, the Court
cannot grant a stay based primarily on a statement by counsel regarding a factual element of the
case. Whether the phone calls actually contained a prerecorded voice amounts to a fact issue that
should be subject to discovery.
For these reasons, Nationstar’s Motion [6] is DENIED.

IT IS SO ORDERED, this the 23rd day of August, 2017.

/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE

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