United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
V. PARKER U.S. DISTRICT JUDGE
action, Plaintiff Martina Johnson (“Johnson”)
alleges that Defendant Detroit Enterprise Academy
(“DEA”) violated the federal Telephone Consumer
Protection Act (“TCPA”) when it directed a couple
hundred automated calls to Johnson's cellular phone. The
matter presently is before the Court on DEA's motion to
stay. (ECF No. 10.) DEA asks the Court to stay these
proceedings at least until the United States Court of Appeals
for the District of Columbia Circuit issues a decision in
ACA International v. FCC, Case No. 15-122 (D.C. Cir.
filed July 10, 2015). The petitioner in ACA
International is challenging the Federal Communications
Commission's declaratory ruling and order interpreting
numerous provisions of the TCPA.
the TCPA, the term “automatic telephone dialing
system” is defined as equipment with “the
capacity (A) to store or produce telephone numbers to be
called, using a random or sequential number generator; and
(B) to dial such numbers.” 47 U.S.C. § 227(a)(1).
Use of such an autodialer to call a cell phone without the
“prior express consent of the called party” is
prohibited. Id. § 227(b)(1)(A)(iii). In July
2015, the FCC reaffirmed a previous statement that the TCPA
defines autodialers to include equipment that “has the
capacity to store or produce, and dial random or sequential
numbers ... even if it is not presently used for that purpose
….” In the Matter of Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.
Rcd. 7961, 7971-72 (2015). The 2015 Ruling additionally
clarified that “a called party may revoke consent at
any time and through any reasonable means, ” and that
“the TCPA requires the consent not of the intended
recipient of a call, but of the current subscriber, ”
although it provided for a “one call”
safe-harbor, allowing the caller to gain actual or
constructive notice once the number is reassigned from the
party who gave consent. Id. at 7989-90, 7999-8000.
Circuit Courts of Appeals have interpreted the term
“called party” in the TCPA with respect to who
may give consent for the calls in a manner consistent with
the FCC's ruling: Soppet v. Enhanced Recovery Co.,
LLC, 679 F.3d 637, 639-41 (7th Cir. 2012); Osorio v.
State Farm, F.S.B., 746 F.3d 1242, 1251-52 (11th Cir.
2014). Nevertheless, DEA urges this Court in the interest of
judicial economy to stay these proceedings until the D.C.
Circuit decides the issue, as well as defines the term
“automatic telephone dialing system”
(“ATDS”). DEA cites several opinions in this
District where judges stayed proceedings pending the ACA
‘The power to stay proceedings is incidental to the
power inherent in every court to control the disposition of
the causes in its docket with economy of time and effort for
itself, for counsel and for litigants, and the entry of such
an order ordinarily rests with the sound discretion of the
District Court.' ” FTC v. E.M.A. Nationwide,
Inc., 767 F.3d 611, 627 (6th Cir. 2014) (quoting
Ohio Envt'l Council v. U.S. Dist. Court. S. Dist. of
Ohio, 565 F.2d 393, 396 (6th Cir. 1997)). The Sixth
Circuit Court of Appeals warns courts to “tread
carefully in granting a stay of proceedings, since a party
has a right to a determination of its rights and liabilities
without undue delay. Ohio Envt'l Council, 565
F.2d at 396. The party seeking the stay bears the burden of
“mak[ing] out a clear case of hardship or inequity in
being required to go forward.” Landis v. North Am.
Co., 299 U.S. 248, 254 (1936). The moving party must
show “that there is pressing need for delay, and that
neither the other party nor the public will suffer harm from
entry of the [stay].” Ohio Envtl. Council, 565
F.2d at 396. Here, DEA does not satisfy its burden.
the Court finds little harm to DEA if the case proceeds.
Contrary to DEA's assertion, this Court does not view the
D.C. Circuit's ruling in ACA International as
dispositive. Instead, this Court believes that this lawsuit
will continue regardless of how the ACA
International court rules. Discovery regarding the type
of calling system DEA uses will be necessary to determine
whether it fits whatever definition of ATDS is adopted. Even
if the ACA International court holds that the
“called party” is the intended recipient of the
calls rather than the consumer assigned the telephone number
dialed, DEA still may be liable to Johnson. This is because
Johnson alleges in her Complaint that she told DEA she was
not the person it was attempting to reach and asked that DEA
stop calling her. (Compl. ¶¶ 18-19, ECF No. 1.)
panel in ACA International held oral argument ten
months ago, on October 19, 2016. The court likely will issue
a decision soon-well before any deadline for dispositive
motions or possible final pretrial conference or trial date
in this case.
the Court is not convinced that “[Johnson] will suffer
no prejudice if this case is stayed[, ] as DEA
asserts.” (Def.'s Mot. at 11, ECF No. 10 at Pg ID
46.) The Court did sign a stipulated order allowing Plaintiff
to subpoena her cellular phone records to avoid their
disposal pursuant to her carrier's record retention
policies. (ECF No. 15.) Nevertheless, a stay would prevent
Johnson from using a subpoena to request phone records from
DEA's carrier. Moreover, as indicated earlier, Johnson
has “a right to a determination of [her] rights and
liabilities without undue delay.” Ohio Envt'l
Council, 565 F.2d at 396. A stay harms this right.
for the reasons discussed above, the Court is not inclined to
conclude that a stay will preserve judicial resources. To the
extent the ACA International decision clarifies the
law, this likely will occur before any legal issues are
presented to this Court for review.
little or no prejudice to DEA without the stay, prejudice to
Plaintiff if DEA's request for a stay is granted, and
that a stay will not help conserve judicial resources, the
Court concludes that a stay is not warranted. The Court will
be setting a date for a scheduling conference shortly.
IT IS ORDERED that Defendant's motion ...