BPP v. Henry Schein, Inc. et al

Filing 65

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Integrated Media Solutions, LLC and Henry Schein Practice Solutions, Inc.'s motion to stay (ECF No. 52 ) is GRANTED. IT IS FURTHER ORDERED that this case is STAYED until a decision is made by the Eight Circuit Court of Appeals in St. Louis Heart Center, Inc. v. Nomax, Inc. (No. 17-1794). IT IS FURTHER ORDERED that every ninety (90) days from the date of this Order, Defendants Integrated Media Solutions, LLC and Henry Schein P ractice Solutions, Inc. shall advise the Court of the status of the Nomax case. IT IS FURTHER ORDERED that Plaintiff's motions to strike (ECF Nos. 27 and 31 ) are HELD IN ABEYANCE, pending further Orders of this Court. IT IS FINALLY ORDERED that the Clerk of Court shall administratively close this matter. Signed by District Judge John A. Ross on 10/24/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
)
BPP,
)
)
Plaintiff,
)
4:17-cv-01370-JAR
)
v.
)
)
HENRY SCHEIN PRACTICE SOLUTIONS, )
INC., et al.,
)
)
Defendants.
)
MEMORANDUM AND ORDER
This matter is before the Court on Defendants Integrated Media Solutions, LLC and
Henry Schein Practice Solutions, Inc.’s motion to stay. (ECF No. 52). Plaintiff BPP filed its
response in opposition to the motion on October 10, 2017. (ECF No. 57). Defendants filed a
reply on October 23, 2017. (ECF No. 62). The motion is fully briefed and ready for disposition.
After careful consideration, the Court will grant Defendants’ motion.
BPP filed a class action complaint alleging that Defendants violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) by faxing unsolicited fax advertisements
without a proper opt-out notice as required by 47 C.F.R. § 1200. (Amended Class Action JunkFax Complaint, ECF No. 21, ¶¶21-26). In the motion to stay, Defendants request that the action
be stayed pending a decision by the Eighth Circuit Court of Appeals in St. Louis Heart Center,
Inc. v. Nomax, Inc. (No. 17-1794). (ECF No. 53). Defendants argue that resolution of Nomax
“could significantly curtail or extinguish altogether Plaintiff’s claims because the standing
question presented in Nomax is identical to the standing issue presented in this case.” (Id. at 5).
Defendants argue that a stay would preserve judicial and party resources and would not prejudice
BPP because the case is in its infancy, discovery has not yet commenced, and the trial date is
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approximately 16 months away. (Id. at 2, 5-6).
On the other hand, Defendants contend that denial of a stay will prejudice all parties
because they would incur significant expense in discovery “only to later find out that Plaintiff
lacks standing to pursue this case.” (Id. at 7-8). Defendants also maintain that Nomax has been
fully briefed and is likely to be decided within the next six months, and that BPP will suffer no
damage from a stay because a modest delay in receiving money damages is not prejudicial and
the conduct challenged in the Complaint has already stopped. (Id. at 7). In addition, Defendants
points to the decisions issued by this Court staying TCPA cases until final rulings are issued by
the FCC or decisions made by higher courts on potentially case-dispositive issues.
BPP opposes a stay on the grounds that the decision made by this Court in Nomax is an
outlier in the law and that a rapidly growing number of federal courts nationwide have been
rejecting Defendants’ motions challenging Article III standing in TCPA cases. (ECF No. 57 at ¶
3). BPP further contends that the parties have already expended significant judicial and party
resources due to failed attempts at early mediation, and that Defendants failed to articulate a
good excuse for not seeking a stay in a more timely fashion. (Id. at ¶¶ 1-2). Finally, BPP claims
it will be prejudiced by a stay due to the risk of lost evidence. (Id. at ¶ 4).
In light of the Eighth Circuit’s pending decision in Nomax, and in the interest of reaching
consistent results in similar TCPA cases, the Court will grant Defendants’ motion to stay this
case. The Court is not persuaded that Plaintiff will be unduly prejudiced by such a stay, as the
case is in the early stages of litigation. Furthermore, the Court believes that a stay will preserve
the resources of the parties, as well as the Court, which weighs in favor of a stay.
Accordingly,

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IT IS HEREBY ORDERED that Defendants Integrated Media Solutions, LLC and
Henry Schein Practice Solutions, Inc.’s motion to stay (ECF No. 52) is GRANTED.
IT IS FURTHER ORDERED that this case is STAYED until a decision is made by the
Eight Circuit Court of Appeals in St. Louis Heart Center, Inc. v. Nomax, Inc. (No. 17-1794).
IT IS FURTHER ORDERED that every ninety (90) days from the date of this Order,
Defendants Integrated Media Solutions, LLC and Henry Schein Practice Solutions, Inc. shall
advise the Court of the status of the Nomax case.
IT IS FURTHER ORDERED that Plaintiff’s motions to strike (ECF Nos. 27 and 31)
are HELD IN ABEYANCE, pending further Orders of this Court.
IT IS FINALLY ORDERED that the Clerk of Court shall administratively close this
matter.
Dated this 24th day of October, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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