Kennoy v. Synchrony Bank et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry)For the reasons set out above, the Court concludes that the four relevant factors weigh in favor of granting a stay of limited duration. An appropriate Order is filed simultaneously with this Memorandum.Signed by Honorable Richard P. Conaboy on 5/19/17. (cc)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID KENNOY,

:
:CIVIL ACTION NO. 3:16-CV-2034
Plaintiff,
:
:(JUDGE CONABOY)
v.
:
:
SYNCHRONY BANK and EGS
:
FINANCIAL CARE, INC.,
:
:
Defendants,
:
:
___________________________________________________________________
MEMORANDUM
Pending before the Court is Defendant Synchrony Bank’s Motion
to Stay Proceedings Pending Ruling by the D.C. Circuit Court of
Appeals.1

(Doc. 8.)

Defendant Synchrony Bank (“Defendant”)

asserts that a stay is appropriate because the case of ACA
International v. Federal Communications Commission, Case No. 151211, pending in the D.C. Circuit Court could be dispositive of
Plaintiff’s Telephone Consumer Protection Act (“TCPA”) claims.
Defendant explains that the case involves the statutory definition
of an “automatic telephone dialing system” under 47 U.S.C. §
227(a)(1) and Plaintiff seeks to recover $500 to $1,500 per call
under the TCPA, alleging that Defendant used an automatic telephone
dialing system (“ATDS”) as defined by the TCPA without Plaintiff’s
consent.

(Doc 20-1 at 1 (citing Compl. ¶ 23; Doc. 1).)

For the

reasons discussed below, the Court concludes that, although the

1

Defendant EGS Financial Care, Inc., concurs in the motion.
(Doc. 20-2 at 1.)

D.C. Circuit decision may not be dispositive of all of Plaintiff’s
TCPA claims, the case is properly stayed.
I. Background
Defendants removed this case from the Luzerne County Court of
Common Pleas on October 7, 2016, pursuant to 28 U.S.C. §§ 1331 and
1441.

(Doc. 1.)

In the underlying action’s introductory

paragraph, Plaintiff states the following:
This is an action for damages brought by
an individual consumer for violations of the
Telephone Consumer Protection Act, 47 U.S.C.
§ 227 (hereinafter “TCPA”), and the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692 et
seq. (hereinafter “FDCPA”). Defendants
placed an excessive number of calls to
Plaintiff on a number assigned to a cellular
telephone service using equipment regulated
by the Act.
(Compl. ¶ 1 (Doc. 1-1 at 4).)
Relevant to the pending motion, Plaintiff alleges that
Synchrony “placed, and caused to be placed” hundreds of calls to
his cell phone number, and EGS placed hundreds of calls to his cell
phone number.

(Compl. ¶¶ 17, 18 (Doc. 1-1 at 6).)

He further

alleges that the calls made to his cell phone “were made using
either an automatic dialing system, as that term in defined in 47
U.S.C. § 227(a)(1), or an artificial or prerecorded voice.”
(Compl. ¶ 23; Doc. 1-1 at 6.)
II. Discussion
Defendant maintains that this case is properly stayed because
a case pending in the D.C. Circuit Court is reviewing the FCC
2

interpretation of the term “automatic telephone dialing system” in
the TCPA and may overturn the FCC’s July 10, 2015, ruling on the
matter.

(Doc. 20-1 at 2.)

Plaintiff responds that the applicable

“arbitrary and capricious standard” in the appeal makes it
“extremely unlikely that this appeal will result in a change in the
law.”

(Doc. 23 at 1-2.)

A district court has “broad discretion to stay proceedings as
an incident to its power to control its own docket.”
Jones, 520 U.S. 681, 706 (1997).

Clinton v.

In determining whether a stay is

appropriate, the district court should consider the following: “(1)
the length of the requested stay; (2) the ‘hardship or inequity’
that the movant would face going forward with the litigation; (3)
the injury that a stay would inflict upon the non-movant; and (4)
whether a stay will simplify issues and promote judicial economy.”
Rajput v. Synchrony Bank, Civ. A. No. 3:15-CV-1079, 2016 WL
6433134, at *2 (M.D. Pa. Oct. 31, 2016) (internal quotation
omitted) (listing cases).2
A.

Length of the Requested Stay
Defendant contends that the stay will be relatively short in

duration and will not prejudice Plaintiff.

(Doc. 20-1 at 10.)

Noting that oral argument was heard in the ACA International case

2

Citing Rajput, the Court employed these factors in
Wolkenstein v. Synchrony Bank, Civ. A. No. 3:16-CV-2036 (M.D. Pa.
filed March 23, 2017), and concluded a stay was appropriate pending
the D.C. Circuit Court’s ACA International decision.
3

on October 19, 2016, Defendant points to cases where the courts
concluded that the D.C. Circuit case should not remain pending for
an extended time.

(Id. (citations omitted).)

Plaintiff asserts that “staying this matter pending the D.C.
Circuit’s decision as requested by Synchrony is tantamount to
staying this matter indefinitely.”

(Doc. 23 at 5.)

In support of

the assertion, Plaintiff points to another court’s conclusion that
the stay would be indefinite and assessment that “the D.C. Court of
Appeals is unlikely to be the last step as the unsuccessful party
is almost certain to appeal to the Supreme Court.”

((Doc. 23 at 5

(internal quotation omitted) (citing Lathrop v. Uber Techs., Inc.,
2016 WL 97511 (N.D. Cal. Jan. 8, 2016)).)
The Court is sensitive to Plaintiff’s concern that the D.C.
Circuit Court’s resolution of the case will not be the end of
litigation on the matter at issue.

(Doc. 23 at 5-7.)

Plaintiff

does not argue that the D.C. Circuit’s decision is not forthcoming.
Therefore, Plaintiff’s concern regarding the length of the stay
requested here is about future requests for stays related to legal
action subsequent to the D.C. Circuit Court decision.

This concern

can be addressed with a direct limitation on any stay granted and a
proviso that the stay will be lifted once the D.C. Circuit Court
renders a decision in ACA International.

With such limitations,

the Court concludes that the likely length of the stay weighs in
favor of granting the stay.

4

B.

Movant’s Hardship or Inequity
Defendant asserts that it “will suffer harm in the form of

unnecessary litigation fees and expenses, and an uncertain scope of
discovery” if the stay is not granted.

(Doc. 20-1 at 11.)

Relying on several cases including Rajput in support of the
proposition that “courts have found litigation expense sufficient
to demonstrate actual prejudice to justify a stay,” Defendant urges
that this matter be stayed before additional time and resources are
expended unnecessarily.

(Doc. 20-1 at 11-12 (citing inter alia

Rajput, 2016 WL 6433134, at *11).)
Plaintiff does not address this factor specifically but notes
that the D.C. Circuit Court’s ruling “will likely have no impact on
this case” for a number of reasons.
added).)

(Doc. 23 at 8 & n.3 (emphasis

Other than speculative considerations set out in the

margin, Plaintiff states that discovery will be needed into whether
the equipment at issue here constitutes an ATDS whether the new or
old definition is in play.

(Doc. 23 at 8.)

Plaintiff’s argument does not address the potential impact of
the D.C. Circuit Court’s decision on the contours of discovery and
the resolution of issues going forward in this case.

Because it

appears likely that the D.C. Circuit Court case will be decided in
the near future and because the discovery period has not ended in
this case, the Court cannot discount Defendant’s argument.
Therefore, this factor weighs in favor of a stay.

5

C.

Injury to Plaintiff
Defendant states that Plaintiff would not suffer “any

continuing harm that would be exacerbated by what is reasonably
expected to be a short stay, especially since Plaintiff has stopped
receiving calls and the case is in the early stages of the
discovery process.”

(Doc. 20-1 (citing Gusman v. Comcast Corp.,

No. 13CV1049-GPC(DHB), 2014 WL 2115472, at *4 (S.D. Cal. May 21,
2014)).)
Plaintiff avers that “[a]n indefinite stay in this matter only
serves to prejudice [him], creating an increased likelihood that
records or witnesses will become unavailable while the Court awaits
a separate court’s ruling.”

(Doc. 23 at 7.)

He also states that

“if a stay is granted, a significant amount of time will pass, and
memories and equipment may no longer be available once a stay is
lifted.”

(Id. at 9.)

Plaintiff then makes a case for the

likelihood of ongoing litigation and/or rulemaking.

(Id.)

The Court concludes that, while Plaintiff’s concerns about the
effects of a lengthy stay and further proceedings are valid, the
Court’s intention to limit the duration of the stay in this matter
will address those concerns.

Once the D.C. Circuit rules on ACA

International, no matter what comes next the parties here will be
in a better position to articulate the appropriate scope of
discovery.

This Court will not allow protracted litigation to

further delay the matters raised here.
6

D.

Simplifying Issues and Promoting Judicial Economy
Defendant maintains that granting a stay will simplify issues

and promote judicial economy: depending on how the D.C. Circuit
Court rules, Plaintiff’s TCPA claims could be extinguished or
significantly curtailed; and, at the very least, the ruling will
dictate the scope of the issues and discovery needed.

(Doc. 20-1

at 12.)
Plaintiff again points to an anticipated lengthy stay in
consideration of the promotion of judicial efficiency.
10.)

(Doc. 23 at

He also notes that ACA International cannot dispose of

Plaintiff’s claims entirely because he alleged in his Complaint
that he was called using an artificial or prerecorded voice in
violation of the TCPA irrespective of whether an ATDS was used.
(Doc. 23 at 10-11 (citing 47 U.S.C. § 227(b)(1)(A); Doc. 1-1 ¶
23).)

He also asserts that each of the voicemails from Synchrony

ended with the following phrase: “This is a recording.

Thank you.”

(Doc. 23 at 11.)
The Court does not discount liability based on the use of an
artificial or prerecorded voice.

However, judicial economy is best

accomplished by the avoidance of piecemeal litigation, including
piecemeal discovery.

Therefore, even if all claims are not

affected by the ACA International litigation, the focus of
discovery and parameters of the case going forward will be better
defined after the D.C. Circuit Court issues its decision.

7

Furthermore, Plaintiff’s Complaint states that “[t]he calls were
made to Plaintiff’s cell phone using either an automatic dialing
system, as that term is defined in 47 U.S.C. § 227(a)(1), or an
artificial prerecorded voice.”
(emphasis added).)

(Compl. ¶ 23 (Doc. 1-1 at 6)

Plaintiff does not aver in the Complaint that

all calls were made using both an ATDS and an artificial or
prerecorded voice each time he received a call from Synchrony and
EGS Financial Services.

The assertion in his opposition brief that

all Synchrony voicemails were recordings (Doc. 23 at 11) is not an
assertion that all calls received from both Defendants which
allegedly violate the TCPA were made with an artificial or
prerecorded voice.3

Therefore, based on his pleading and brief, it

is not a certainty that the decision of the D.C. Circuit Court will
not affect some of his claims.

For this reason, the Court

concludes the interests of judicial economy weigh in favor of
granting a limited stay in this case.
III. Conclusion
For the reasons set out above, the Court concludes that the
four relevant factors weigh in favor of granting a stay of limited

3

In his Notice of Supplemental Authority Regarding Synchrony
Bank’s Motion to Stay (Doc. 20), Plaintiff points to Mendez v.
Optio Sols., LLC, No. 3:16-cv-01882, 2017 WL 914587 (S.D. Cal. Mar.
8 2017), in support of his position that a stay is not warranted in
this case. (Doc. 24 at 1.) Importantly, the facts in Mendez
appear to differ in that it was alleged that the defendant placed
calls using an ATDS and an artificial or prerecorded voice system.
(Mendez, 2017 WL 914587, at *1, 3.)
8

duration.

An appropriate Order is filed simultaneously with this

Memorandum.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: May 19, 2017

9