Mizell v. Conn Appliances, Inc.

Filing 57

MEMORANDUM OPINION AND ORDER GRANTING CONN APPLIANCES, INC.S MOTION TO STAY re Denying as Moot 22 MOTION to Dismiss Plaintiff's Complaint for Lack of Article III Standing filed by Conn Appliances, Inc., Granting 29 MOTION to Stay filed by Conn Appliances, Inc., Denying as Moot 31 MOTION for Leave to Conduct Limited Discovery filed by Conn Appliances, Inc., Denying as Moot 46 MOTION in Limine filed by Conn Appliances, Inc., Denying as M oot 29 Conn Appliances, Inc.s motion for partial summary judgment, Denying as Moot 30 MOTION for Summary Judgment filed by Jerohn Mizell. Conn Appliances, Inc.s motion to stay (docket entry #29) is hereby GRANTED. Within 14 days after the D.C. Circuit issues its ruling in ACA International v. FCC, No. 15-1211 (D.C. Cir., argued October 19, 2016), the parties shall each file briefs not to exceed 10 pages explaining how the ruling affects the parties respective positions. Based on the briefs, thecourt will then lift the stay and place this case back on its active docket. In accordance with the court granting the Defendants motion to stay. Signed by Judge Richard A. Schell on 9/28/17. (cm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JEROHN MIZELL,

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Plaintiff,
v.
CONN APPLIANCES, INC.,
Defendant.

Case No. 4:15-CV-550

MEMORANDUM OPINION AND ORDER GRANTING
CONN APPLIANCES, INC.’S MOTION TO STAY
The following are pending before the court:
1.

Conn Appliances, Inc.’s motion to stay and, in the alternative, motion for partial
summary judgment (docket entry #29);

2.

Plaintiff’s opposition to Defendant’s motion to stay and motion for partial summary
judgment (docket entry #38);

3.

Conn Appliances, Inc.’s reply in support of its motion to stay and, in the alternative,
motion for partial summary judgment (docket entry #43); and

4.

Plaintiff’s sur-reply in opposition to Defendant’s motion to stay and motion for
partial summary judgment (docket entry #45).

Having considered the motion to stay and the responsive briefing thereto, the court finds that the
motion has merit and should be granted.
BACKGROUND
On August 13, 2015, the Plaintiff filed this lawsuit against Defendant Conn Appliances, Inc.,
alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the
“TCPA”). In his complaint, the Plaintiff claims the following:

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5.
In or around June 2014, Conn began placing calls to Plaintiff’s cellular
telephone, number 469-xxx-2160, using an automatic telephone dialing system and
using an artificial or prerecorded voice.
6.
When Plaintiff answered calls from Conn, he heard a prerecorded message
indicating that Conn was attempting to reach “Maria Soto”.
7.
Plaintiff does not know Maria Soto and does not know how Conn acquired
his cellular telephone number.
8.
Plaintiff did not provide prior express consent to Conn to place calls to his
cellular telephone number.
9.
In or around July 2014, Plaintiff advised Conn that it had the wrong number
and directed Conn to cease calling his cellular telephone number.
10.
Nevertheless, Conn continued to place automated calls to Plaintiff’s cellular
telephone number.
PL. COMPL., p. 2.
Now before the court is the Defendant’s motion to stay pending a decision by the D.C.
Circuit in ACA International v. FCC, No. 15-1211 (D.C. Cir., argued October 19, 2016). The
Defendant argues that the pending appeal in the D.C. Circuit will resolve two issues that are relevant
to, and possibly dispositive of, the claims and defenses now before this court. See Ankcorn v. Kohl's
Corp., No. 15-CV-1303, 2017 WL 395707, at *1 (N.D. Ill. Jan. 30, 2017).
The D.C. Circuit case, ACA International v. FCC, is an appeal from the
Federal Communications Commission’s July 10, 2015 Omnibus Declaratory Ruling
and Order. In this Declaratory Ruling, the FCC addressed, among other things, the
TCPA’s exemption from liability for calls made “with the prior express consent of
the called party.” In the Matter of Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7965 (2015). The FCC considered
two issues which are relevant to the case at hand. First, the FCC considered whether
the statutory term “called party” includes an original subscriber to a cell phone
number who provided his or her telephone number to a caller, consented to receive
calls, and was the intended recipient of calls, even if the cell phone number had been
subsequently reassigned to a new subscriber without the caller's knowledge. Id. at
7999–8006. The FCC concluded that “‘called party’ is best understood to mean the
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subscriber to whom the dialed wireless number is assigned because the subscriber is
‘charged for the call’ and * * * is the person whose privacy is interrupted by
unwanted calls.” Id. at 8001.
Second, the FCC considered whether a safe harbor exists for callers who call
a cell phone number when the caller had obtained consent to call from the previous
subscriber and did not know the cell phone number had been reassigned. Id. at
8006–10. The FCC concluded that after the first call, any subsequent calls will incur
TCPA liability, explaining that “the one-call window provides a reasonable
opportunity for the caller to learn of the reassignment, which is in effect a revocation
of consent to be called at that number” and that “[o]ne call represents an appropriate
balance between a caller’s opportunity to learn of the reassignment and the privacy
interests of the new subscriber to avoid a potentially large number of calls to which
he or she never consented.” Id. at 8009. The FCC Commissioners were divided over
these issues, and the Declaratory Ruling drew multiple dissents. Id. at 7962.
After the FCC released its Declaratory Ruling, nine companies filed petitions
in the D.C. Circuit seeking review of the FCC’s Declaratory Ruling pursuant to the
Administrative Procedures Act, 47 U.S.C. § 402 (“the Hobbs Act”), which sets forth
the procedural process for anyone seeking to “enjoin, set aside, annul, or suspend any
order of the [FCC].” 47 U.S.C. § 402(a). These petitions were consolidated, and
briefing was completed by February 2016. Oral argument took place in the D.C.
Circuit on October 19, 2016.
Ankcorn, No. 15-CV-1303, 2017 WL 395707, at *2 (footnote omitted).
LEGAL STANDARD
“The district court has the inherent power to control its own docket, including the power to
stay proceedings.” Soverain Software LLC v. Amazon.com, Inc., 356 F. Supp. 2d 660, 662 (E.D.
Tex. 2005) (citing Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936);
Gould v. Control Laser Corp., 705 F.2d 1340, 1341 (Fed. Cir.1983)). “How to best manage the
court’s docket ‘calls for the exercise of judgment, which must weigh competing interests and
maintain an even balance.’” Id. (quoting Landis, 299 U.S. at 254–55, 57 S.Ct. 163). “In deciding
whether to stay litigation pending reexamination, courts typically consider: (1) whether a stay will
unduly prejudice or present a clear tactical disadvantage to the nonmoving party, (2) whether a stay
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will simplify the issues in question and trial of the case, and (3) whether discovery is complete and
whether a trial date has been set.” Id. (citing Xerox Corp. v. 3Com Corp., 69 F. Supp. 2d 404, 406
(W.D.N.Y. 1999)).
DISCUSSION AND ANALYSIS
In reviewing the above-referenced factors, the court notes that the parties have filed their
respective dispositive motions and that the same are fully briefed. However, “a stay will simplify
the issues in question and streamline the proceedings in this court” since the “two issues under
consideration by the D.C. Circuit” in the ACA International case (the FCC’s treatment of persons
who receive reassigned numbers as a “called party” and the one-call safe harbor provision for calls
to reassigned numbers) “are relevant to [the] Defendant’s potential liability in the case at hand.”
Ankcorn, No. 15-CV-1303, 2017 WL 395707, at *2. Additionally, the stay will not unduly prejudice
the Plaintiff. See id., at *3. Given that oral argument before the D.C. Circuit occurred almost one
year ago in ACA International, the stay should not be lengthy. See id. Further, since the Plaintiff
has not advised the court that he is still receiving telephone calls from the Defendant, the court
concludes that “there is no risk of ongoing harm to [the] Plaintiff.” Id. As such, on balance, the
factors weigh in favor of granting a stay.
CONCLUSION
Based on the foregoing, Conn Appliances, Inc.’s motion to stay (docket entry #29) is hereby
GRANTED. Within 14 days after the D.C. Circuit issues its ruling in ACA International v. FCC,
No. 15-1211 (D.C. Cir., argued October 19, 2016), the parties shall each file briefs not to exceed 10
pages explaining how the ruling affects the parties’ respective positions. Based on the briefs, the
court will then lift the stay and place this case back on its active docket. In accordance with the court
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granting the Defendant’s motion to stay, the following motions are hereby DENIED AS MOOT:
1.

Defendant’s 12(h)(3) motion to dismiss Plaintiff’s complaint for lack of Article III
standing (docket entry #22);

2.

Conn Appliances, Inc.’s motion for partial summary judgment (docket entry #29);

3.

Plaintiff’s motion for summary judgment (docket entry #30);

4.

Conn Appliances, Inc.’s motion for leave to conduct limited discovery (docket entry
#31); and

5.

Conn Appliances, Inc.’s motions in limine (docket entry #46).

If necessary, once the court lifts the stay, the parties may re-urge their respective motions.
IT IS SO ORDERED.

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SIGNED this the 28th day of September, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE

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