Cunningham v. Shore Funding Solutions Inc.

Filing 37

ORDER - For the foregoing reasons, the Defendant's motion to stay 26 is granted. Within seven (7) days of the issuance of the DC Circuit decision in ACA, the parties shall file a joint letter informing the Court. It is So Ordered by Judge Arthur D. Spatt on 2/27/2018. (Coleman, Laurie)

FILED 
CLERK 

10:08 am, Feb 27, 2018

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
CRAIG CUNNINGHAM on behalf of himself
And others similarly situated,

MEMORANDUM OF
DECISION & ORDER
2:17-cv-2080 (ADS)(AKT)

Plaintiff,
-againstSHORE FUNDING SOLUTIONS INC.,
Defendant.
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APPEARANCES:
BELLIN & ASSOCIATES, LLC
Attorneys for the Plaintiff
85 Miles Avenue
White Plains, NY 10606
By:
Aytan Y. Bellin, Esq., Of Counsel

LAW OFFICES OF CLIFFORD B. OLSHAKER
Attorneys for Defendant
40-75 75th Street, Third Floor
Elmhurst, NY 11373
By:
Clifford B. Olshaker, Esq., Of Counsel
SPATT, District Judge:
Craig Cunningham (“Cunningham” or the “Plaintiff”) commenced this putative class
action against the Defendant, Shore Funding Solutions Inc. (“SFS” or the “Defendant”) alleging
violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. §§ 227, et seq.
This action is based on the Defendant’s alleged use of an automatic telephone dialing system to
deliver text messages to the Plaintiff’s phone, without the prior express consent of the Plaintiff.
Presently before the Court is a motion by the Defendant requesting that the Court stay the case
until the United States Court of Appeals for the District of Columbia (the “DC Circuit”) issues a
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decision in ACA Int’l v. Fed. Commc’ns Comm’n, No. 15-1211 (“ACA”), a case currently pending
before it. Oral argument in ACA was heard on October 19, 2016.
The issues before the DC Circuit in ACA are unquestionably relevant to the legal issues
present in the case at bar. As the Defendant alleges in its motion papers, the definition of an
“automatic telephone dialing system” under the TCPA is quite relevant to the instant case.
“[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, 57 S. Ct. 163, 81 L. Ed. 153
(1936). There are five factors that the court should consider when deciding whether to exercise its
discretion to enter a stay:
(1) the private interests of the plaintiffs in proceeding expeditiously with the civil
ligation as balanced against the prejudice to the plaintiffs if delayed; (2) the private
interests of and burden on the defendants; (3) the interests of the courts; (4) the
interests of persons not parties to the civil litigation; and (5) the public interest.
Fairbank Reconstruction Corp. v. Greater Omaha Packaging Co., No. 13-cv-907, 2014 WL
693001, at *1 (W.D.N.Y. 2014).
Assessing the various interests, the Court finds that a stay in this case is warranted pending
the DC Circuit’s decision in ACA. As previously mentioned, ACA was argued in October 2016.
Although it is not immediately clear how long before the DC Circuit issues its decision, it will
likely be within the next few months. Such a short-term stay is unlikely to adversely impact the
parties in this case.
Moreover, the Court and the parties share an interest in conserving resources while a case
is pending that may clarify issues raised in the instant case. This will minimize the risk of de
minimis motion practice. There are no issues that affect the public interest or non-parties to this
case, that this Court is aware of, that warrant cause for restraint.
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This Court joins other district courts all across the nation in concluding that the various
factors weigh in favor of granting a stay until the DC Circuit decides ACA. See Reynolds v. Time
Warner Cable, Inc., No. 16-cv-6165, 2017 WL 362025, at *3 (W.D.N.Y. Jan. 25, 2017) (collecting
cases). See, e.g., Mejia v. Time Warner Cable Inc., No. 15-CV-6445, 2017 WL 5513638, at *5
(S.D.N.Y. Nov. 17, 2017); DiMarco v. Nationstar Mortg., LLC, No. 16-CV-6588, 2017 WL
1855197, at *1 (W.D.N.Y. May 5, 2017).
CONCLUSION
For the foregoing reasons, the Defendant’s motion to stay is granted.
Within seven (7) days of the issuance of the DC Circuit decision in ACA, the parties shall
file a joint letter informing the Court.

It is SO ORDERED:
Dated: Central Islip, New York
February 27, 2018
__/s/ Arthur D. Spatt__
ARTHUR D. SPATT
United States District Judge

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