St. Louis Heart Center, Inc. v. Gilead Palo Alto, Inc. et al

Filing 42

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Joint Motion to Stay 34 is GRANTED. IT IS FURTHER ORDERED that this case is STAYED until final rulings are issued by the FCC on Defendants Petition for Declaratory Ruling and/or Waiv er, and on any appeals filed in connection with the ruling.IT IS FURTHER ORDERED that every ninety (90) days, beginning December 30, 2013, Defendants shall advise the Court of the status of the proceedings before the FCC and any appeal filed in connection thereto.IT IS FURTHER ORDERED that the Clerk of Court shall administratively close this matter. Signed by District Judge John A. Ross on 9/27/13. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ST. LOUIS HEART CENTER, INC.,
Plaintiff,
v.
GILEAD PALO ALTO, INC., et al.,
Defendants.

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No. 4:13-CV-958-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Joint Motion to Stay. (Doc. No. 34)
Plaintiff filed its response in opposition to the motion on September 6, 2013. (Doc. No. 40)
Defendants filed a joint reply on September 23, 2013. (Doc. No. 41) Although untimely, the
Court will consider Defendants’ reply. The motion is, therefore, fully briefed and ready for
disposition. After careful consideration, the Court will grant Defendants’ motion.
Plaintiff filed a class action complaint alleging that Defendants violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) by faxing or having an agent fax
advertisements without a proper opt-out notice as required by 47 C.F.R. § 1200 (Amended
Complaint (“AC”), Doc. 20, ¶¶ 1, 17-20). Defendants request the action be stayed pending
resolution of its Petition for Declaratory Ruling and/or Waiver, filed with the Federal
Communications Commission (“FCC”) on August 9, 2013 on behalf of Gilead Sciences, Inc. and
Gilead Palo Alto, Inc. (“Petition,” Doc. No. 35-1), seeking resolution of the threshold legal issue
in this case, namely, the applicability of FCC regulation 47 C.F.R. § 64.1200(a)(3)(iv), which
purports to govern solicited faxes and requires those faxes to contain an opt-out notice. (Mem. in
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Supp., Doc. No. 35, p. 1)
In support of their Motion, Defendants direct the Court’s attention to the decision in Nack
v. Walburg, 715 F.3d 680, 682 (8th Cir. 2013), wherein the Eighth Circuit recognized that the
Administrative Orders Review Act (“Hobbs Act”), 28 U.S.C. § 2342 et seq., precluded it from
hearing challenges to the FCC regulation at issue and instructed that on remand, the district court
“may entertain any requests to stay proceedings for pursuit of administrative determination of the
issues raised.” In addition, Defendants point to the stay issued by this Court in the related case of
St. Louis Heart Center, Inc. v. Forest Pharmaceuticals, Inc., Case No. 4:12-CV-2224-JCH, 2013
WL 3988671, at *1, (E.D. Mo. July 17, 2013). (Mem. in Supp., Doc. No. 35, pp. 4-6)1
Plaintiff opposes a stay on the grounds that the underlying issue has been conclusively
determined against Defendants both by the FCC and federal courts. (Response, Doc. No. 40, pp.
4-7) Should the Court grant Defendants’ motion and stay this action, Plaintiff argues it should be
allowed to conduct some discovery to preserve relevant evidence and testimony. (Id., p. 11)
In reply, Defendants assert that Plaintiff’s concerns over the loss of evidence are
speculative and contravened by sworn statements already filed in the record noting that the
information and database is being preserved. (Reply, Doc. No. 41, pp. 9-11) Further, a stay
would ensure that the threshold question regarding the validity of 47 C.F.R. § 64.1200(a)(3)(iv)
can be resolved before the parties spend further time and resources in litigation. (Id., p. 12)
In light of the Eighth Circuit’s suggestion in Nack, and in the interests of reaching
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In their Joint Reply, Defendants point out that four courts, including this one, have already issued
stays in other TCPA class actions where the defendant petitioned the FCC seeking a declaration on
opt-out notice language. See St. Louis Heart Center, Inc. v. Forest Pharmaceuticals, Inc., 2013 WL
3988671 at *1 (E.D. Mo. July 17, 2013); Burik v. Staples Contract and Commercial, Inc., Case No.
1:12-cv-10806-NMG (Doc. No. 90) (D. Mass. Aug. 9, 2013); Nack v. Walburg, Case No. 4:10-cv00478 (Doc. No. 61) (E.D. Mo. Sept. 12, 2013); and Medical West Ballas Pharmacy, Ltd. v. Richie
Enterprises, L.L.C., Case No. 09SL-CC05410-01 (St. Louis Cnty. Sept. 11, 2013). But c.f.
Whiteamire Clinic, P.A. v. Quill Corp., Case No. 12-CV-5490 (Doc. Nos. 87, 88) (N.D. Ill. Sept.
6, 2013). (Reply, Doc. No. 41, p. 4)
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consistent results in similar TCPA cases, the Court will grant Defendants’ motion to stay this
case. The Court is not persuaded that Plaintiffs will be unduly prejudiced by such a stay.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Joint Motion to Stay [34] is GRANTED.
IT IS FURTHER ORDERED that this case is STAYED until final rulings are issued by
the FCC on Defendant’s Petition for Declaratory Ruling and/or Waiver, and on any appeals filed
in connection with the ruling.
IT IS FURTHER ORDERED that every ninety (90) days, beginning December 30,
2013, Defendants shall advise the Court of the status of the proceedings before the FCC and any
appeal filed in connection thereto.
IT IS FURTHER ORDERED that the Clerk of Court shall administratively close this
matter.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

Dated this 27th day of September, 2013.

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