Pendleton v. 1st Financial Bank, USA

Filing 26

MEMORANDUM OPINION AND ORDER denying 18 Motion to Stay. Signed by U.S. District Judge Lawrence L. Piersol on 9/11/17. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

PlhED
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^ I 20,7

SOUTHERN DIVISION

LINDA PENDLETON,on behalf of

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herself, and all others similarly situated,

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CIV 16-4171

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Plaintiff,

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vs.

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1st FINANCIAL BANK,USA

MEMORANDUM OPINION AND

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ORDER DENYING MOTION TO

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STAY PROCEEDINGS

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Defendant.

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Plaintiff, Linda Pendleton ("Pendleton"), filed a putative elass action Complaint against
Defendant, 1st Financial Bank, USA ("1st Financial"), seeking damages and injunctive relief
pursuant to the Telephone Consumer Protection Act("TCPA"),47 U.S.C. § 227. The Complaint

alleges that 1st Financial used an automatic telephone dialing system("ATDS")and "an artificial
or prerecorded voice"system to call Pendleton's cellular telephone sometimes multiple times a day,
attempting to collect an alleged debt owed by her adult son. 1st Financial moves to stay this case
pending a ruling by the D.C. Circuit in a case involving the definition of an ATDS.(Doe. 18.)
Pendleton resists the motion. For the following reasons, the motion to stay will be denied.

BACKGROUND

The TCPA makes it unlawful "to make any call... using any automatic telephone dialing
system or an artificial or prerecorded voice to any... cellular telephone service ... or any service for

which the called party is charged for the call, unless such call is made solely to collect a debt owed
to or guaranteed by the United States." 47 U.S.C. § 227(b)(l)(A)(iii). Congress defined the term
"automatic telephone dialing system" as "equipment which has the capacity to store or produce

telephone numbers to be called, using a random or sequential number generator; and to dial such
numbers." 47 U.S.C. § 227(a)(1)(A) and (B). Congress vested the Federal Communication