Thomas v. Smith-Palluck Associates Corp.

Filing 42

ORDER that LVAC's unopposed motion to stay this case ECF Nos. 38 , 39 is GRANTED; the parties must promptly file a joint status report upon receipt of the FCC or the Ninth Circuit's decision, whichever is earlier; a joint statu s report to be filed by 01/04/2019, and every 120 days thereafter, until the stay is lifted; Thomas' Motion for Leave to File First Amended Complaint ECF No. 17 is DENIED without prejudice. Signed by Magistrate Judge Carl W. Hoffman on 9/6/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ANDREA THOMAS,

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Case No. 2:17-cv-02001-MMD-CWH
Plaintiff,
ORDER

v.
SMITH-PALLUCK ASSOCIATES CORP.,
d/b/a LAS VEGAS ATHLETIC CLUBS,
Defendant.

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Presently before the court is plaintiff Andrea Thomas’ Motion for Leave to File First

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Amended Complaint (ECF No. 17), filed on February 7, 2018. Defendant Smith-Palluck

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Associates Corp. d/b/a Las Vegas Athletic Clubs (“LVAC”) filed a response (ECF No. 18), which

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is supported by Elana Toliver’s declaration (ECF No. 19), on February 21, 2018. Thomas filed a

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reply (ECF No. 23) on February 28, 2018.

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Also before the court is LVAC’s motion to stay pending a ruling by the Federal

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Communications Commission on TCPA Issues Disputed in this Case (ECF Nos. 38, 39), filed on

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July 17, 2018. Thomas did not file a response.

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This is a dispute regarding repeated calls from LVAC to Thomas on her cellular telephone

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regarding a debt. (See Compl. (ECF No. 1).) Thomas contends she instructed LVAC to stop

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calling her cellular telephone, but she continued to receive calls and voicemails from LVAC,

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many of which involved pre-recorded and artificial messages. (Id. at ¶¶ 24-30, 39-42.) Thomas

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claims LVAC employed an automatic telephone dialing system to place these calls. (Id. at ¶¶ 31-

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38.) Thomas brought suit against LVAC, alleging claims for negligent and willful violation of

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the Telephone Consumer Protection Act (“TCPA”) (claims one and two) and for state law

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deceptive trade practices (claim three). (Id. at ¶¶ 53-73.)

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Thomas now moves to amend her complaint to (1) allege additional facts about LVAC’s

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automatic telephone dialing equipment, (2) assert claims for a putative class, and (3) drop her

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deceptive trade practices claim. LVAC does not oppose dropping the deceptive trade practices

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claim, but it argues amendment to assert class action claims would be futile because Thomas

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consented to the calls in her LVAC membership agreement. Thomas replies the class claims are

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not futile, because ambiguities in the membership agreement must be construed against LVAC,

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and the agreement does not provide for contact through an automatic telephone dialing system for

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collections purposes.

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LVAC moves to stay the litigation, arguing the law on what equipment constitutes an

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automatic telephone dialing system is in flux. LVAC points to two forthcoming rulings—one

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from the FCC, the agency tasked with construing the TCPA, and one from the United States

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Court of Appeals for the Ninth Circuit—arguing that those decisions will alter the law governing

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this case. LVAC argues the primary jurisdiction doctrine authorizes the court to stay a case to

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allow an administrative agency with subject matter expertise, such as the FCC’s expertise on the

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TCPA, to rule on an issue within its purview. LVAC further argues the court has the inherent

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authority to stay this case for efficiency reasons. For instance, LVAC states the parties and the

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court should not expend resources on discovery, motion practice, and trial, only to have to “redo”

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the work when the FCC and Ninth Circuit render decisions that bear on whether the dialing

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equipment used in this case qualifies as an automatic telephone dialing system under the TCPA.

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Thomas does not oppose the motion to stay, which constitutes a consent to the granting of the

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motion under Local Rule 7-2(d).

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Having reviewed and considered the unopposed motion to stay, and for the reasons stated

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in the motion, the court will stay this litigation pending the FCC or Ninth Circuit’s ruling,

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whichever is earlier. In particular, the court is persuaded that a stay is appropriate because it

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appears the FCC is poised to determine whether dialing equipment similar to the equipment at

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issue in this case, i.e., the Nuxiba System, satisfies the TCPA’s definition of an automatic

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telephone dialing system. The deadline to file public comments with the FCC on this issue

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expired on June 28, 2018. Further, in Marks v. Crunch San Diego, LLC, No. 14-56834 (9th Cir.),
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a case involving what type of dialing equipment constitutes an ATDS, appellate briefing and oral

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argument were complete as of May 11, 2018. Given that the court is staying the litigation, it will

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deny the motion to amend without prejudice for Thomas to renew the motion and for the parties

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to supplement their briefs, if necessary, after the stay is lifted.
IT IS THEREFORE ORDERED that defendant LVAC’s unopposed motion to stay this

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case (ECF Nos. 38, 39) is GRANTED as stated in this order.
IT IS FURTHER ORDERED that the parties must promptly file a joint status report upon

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receipt of the FCC or the Ninth Circuit’s decision, whichever is earlier. Meanwhile, the parties

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must file a joint status report by January 4, 2019, and every 120 days thereafter, until the stay is

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lifted.
IT IS FURTHER ORDERED that Thomas’ Motion for Leave to File First Amended

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Complaint (ECF No. 17) is DENIED without prejudice. After the stay is lifted, Thomas may file

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a notice renewing the motion to amend. If the motion is renewed, the court will entertain the

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parties’ proposals, if any, for a schedule for supplemental briefing on the motion to amend.

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DATED: September 6, 2018

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C.W. HOFFMAN, JR.
UNITED STATES MAGISTRATE JUDGE

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