Campbell v. J.C. Penney Company, Inc. et al
DECISION & ORDER: Granting the # 24 Motion to Stay, therefore the answer deadline will continue to be adjourned without date pending a decision from the D.C. Circuit in the ACA International matter, it is further Ordered that Defendant shall file a status report on December 11, 2017, advising theCourt of the status of the D.C. Circuit matter. In the event a decision is rendered by the D.C. Circuit prior to that time, a status report shall be filed within seven days of the issuance of such deci sion. It if further Ordered that pursuant to FED R. CIV. P. 72(a), the parties have fourteen (14) days within which to file written objections to the foregoing discovery order. Such objections shall be filed with the Clerk of the Court. As specifically noted in Rule 72(a) [a] party may not assign as error a defect in the order not timely objected to. Signed by Magistrate Judge Daniel J. Stewart on 8/11/2017. (jmb)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ROY CAMPBELL, on behalf of himself and
all others similarly situated,
Civ. No. 1:17-CV-080
DANIEL J. STEWART
United States Magistrate Judge
DECISION and ORDER
This matter was commenced on January 25, 2017, as a putative class action alleging a
violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”). Dkt. No.
1, Compl. Plaintiff amended his Complaint, as of right, on April 7, 2017, in order to replace
Defendants J.C. Penney Company, Inc., and J.C. Penney Corporation, Inc., with Synchrony Bank
as the sole Defendant. Dkt. No. 11, Am. Compl. The Amended Complaint, the operative pleading,
alleges that “Synchrony made automated telephone calls to the wireless telephone number of
Plaintiff and other Class members” and that “these phone calls were made without the prior express
consent of Plaintiff or other class members and were not made for emergency purposes.” Am.
Compl at ¶¶ 36 & 44.
Defendant has appeared and, by Motion, now moves to stay the preceding. Dkt. Nos. 24 &
25.1 As the basis for this Motion, Defendant notes that there is presently a case pending in the D.C.
Circuit – ACA Int’l v. Federal Communication Commission, Case No. 15-CV-1211 (hereinafter
Defendant’s time to answer was adjourned without date pending a decision on the Motion to Stay. Text
Minute Entry, dated May 1, 2017.
“ACA International”) – that involves issues central to the present lawsuit, namely, (1) the proper
definition of an “automatic telephone dialing system” under the TCPA, and (2) whether a caller has
“prior express consent” for purposes of the TCPA when a subscriber had consented to be called on
a wireless number and that same number (without the caller’s knowledge) was then reassigned to
another subscriber who did not consent. Dkt. No. 24-1, Def.’s Mem. of Law, at pp. 1-4. The
Defendant argues that a stay of this proceeding until after this ACA International case is decided
will promote judicial economy because issues that are central to the present lawsuit will be clarified.
Id. at pp. 11-14. Defendant also asserts that a relatively short stay until after the D.C. Circuit
decision is issued will not prejudice Plaintiff in this matter considering it is at its earliest stage. Id.
at pp. 9-10.
Plaintiff opposes the stay. Dkt. No. 26. Plaintiff’s counsel notes that not all of the issues
presented in this case will be decided in the ACA International matter. Id. at pp. 1-3. For example,
counsel notes that at least one of the calls made to Plaintiff included a prerecorded message, and this
would be a sufficient predicate for liability under the TCPA separate and apart from the claim that
an automated dialing system was used. Id. at p. 4.
Defendant’s counsel has cited to extensive case law in support of the proposition that it is
both within the authority of this Court and appropriate to stay discovery in a TCPA case pending
the Appellate Court decision in ACA International. See Def.’s Mem. of Law at pp. 6-7 and Dkt. No.
25, Supp. Mem. of Law. The Plaintiff has not specifically disputed this authority, but has made
arguments as to why he believes a stay is unwarranted in his particular case. Id. I find the authority
cited by defense counsel to be persuasive, particularly two decisions from the Western District of
New York – Dimarco v. Nationstar Mortgage, LLC, 2017 WL 1855197 (W.D.N.Y. May 5, 2017)
and Reynolds v. Time Warner Cable, Inc., 2017 WL 362025 (W.D.N.Y. Jan. 25, 2017). Like the
present case, the Reynolds matter involved allegations of both automated dialing and pre-recorded
messages. Reynolds v. Time Warner Cable, Inc., 2017 WL 362025, at *1. Therein, the Honorable
Marian W. Payson, United States Magistrate Judge, concluded that a stay was appropriate because
the parties’ and the court’s interests would be promoted by the clarification of issues that the
decision in ACA International would provide, as well as the potential for narrowing the scope of
discovery. Id. at *2. The Court agrees with the reasoning of the Reynolds decision, adopts it, and
finds that a limited stay in this matter is appropriate.
WHEREFORE, it is hereby,
ORDERED, that the Defendant’s Motion to Stay (Dkt. No. 24) is GRANTED and the
answer deadline will continue to be adjourned without date pending a decision from the D.C. Circuit
in the ACA International matter; and it is further
ORDERED, that Defendant shall file a status report on December 11, 2017, advising the
Court of the status of the D.C. Circuit matter. In the event a decision is rendered by the D.C. Circuit
prior to that time, a status report shall be filed within seven days of the issuance of such decision.
IT IS SO ORDERED.
Pursuant to FED R. CIV. P. 72(a), the parties have fourteen (14) days2 within which to file written
objections to the foregoing discovery order. Such objections shall be filed with the Clerk of the
If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file
objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV.
Court. As specifically noted in Rule 72(a) “[a] party may not assign as error a defect in the order
not timely objected to.”
Date: August 11, 2017
Albany, New York
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