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Gold v. Ocwen Loan Servicing, LLC

United States District Court, E.D. Michigan, Southern Division

December 12, 2017

KIRK GOLD, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO STAY [11], GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [17], AND REFERRING CASE TO MEDIATION

          STEPHEN J. MURPHY, III United States District Judge

         Plaintiff Kirk Gold alleges that Defendant Ocwen Loan Servicing, LLC[1] violated the Telephone Consumer Protection Act and other related state laws. Now before the Court are Defendant's (1) motion to stay the case pending a decision in ACA Int'l v. FCC, Case No. 15-1211, and (2) motion to dismiss.[2] The Court has reviewed the briefs, and finds that a hearing is unnecessary. See E.D. Mich. LR 7.1(f). For the reasons set forth below, the Court will deny the motion to stay and grant in part and deny in part the motion to dismiss.

         BACKGROUND

         Defendant is a licensed mortgage loan servicer, and Plaintiff allegedly is a debtor. It appears Plaintiff consented to being contacted about the debt, so Defendant called him. Plaintiff answered several of the calls and allegedly asked Defendant to stop calling. Despite this alleged request, Plaintiff claims that Defendant called his cellular telephone at least 1, 281 times between April 2, 2011 and March 27, 2014 using an automatic telephone dialing system or an artificial or prerecorded voice. Plaintiff waited until May 10, 2017 to bring suit.

         DISCUSSION

         I. Motion to Stay

          Defendant requests to stay the case pending the resolution of ACA Int'l v. FCC, Case No. 15-1211 (D.C. Cir.). Defendant contends a stay is appropriate because the D.C. Circuit may overturn or narrow the FCC's definition of an automatic telephone dialing system, which is an element of a claim under the TCPA. See 47 U.S.C. § 227(b)(1)(A). Defendant alleges the ACA International decision could therefore be dispositive.

         Although there is a split in the district, the Court finds that a stay here is unwarranted. Coincidentally, there is another case in the district that was filed on the same date, against the same defendant, by the same lawyers, that raises the same claims as the present case. See Keyes v. Ocwen Loan Servicing, LLC, Case No. 17-cv-11492. In Keyes, Judge Drain found a stay is not warranted because (1) ACA International would not be dispositive as a D.C. Circuit decision is persuasive rather than binding, (2) the outcome and timing of the ACA International decision are merely speculative and delay could prejudice Plaintiff, and (3) judicial economy is not served by staying the case. Keyes, 2017 WL 4918530, at *8-9 (E.D. Mich. Oct. 31, 2017). The Court is persuaded by that reasoning, and therefore, Defendant's motion to stay the case will be denied.

         II. Motion to Dismiss

          The Amended Complaint alleges five counts: (I) negligent violations of the TCPA, (II) knowing or willful violations of the TCPA, (III) negligence, (IV) negligent violations of the Michigan Occupational Code, and (V) willful violations of the Michigan Occupational Code.[3] Defendant moved to dismiss all counts under Federal Rule of Civil Procedure 12(b)(6). The Court may grant a Rule 12(b)(6) motion to dismiss if the complaint fails to allege facts "sufficient 'to raise a right to relief above the speculative level, ' and to 'state a claim to relief that is plausible on its face.'" Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). The Court views the complaint in the light most favorable to the plaintiff, presumes the truth of all well-pled factual assertions, and draws every reasonable inference in favor of the non-moving party. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008). If "a cause of action fails as a matter of law, regardless of whether the plaintiff's factual allegations are true or not, " then the Court must dismiss. Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005 (6th Cir. 2009). For the reasons set forth below, Counts I and II survive only for calls made after May 20, 2013 and Counts III, IV, and V must be dismissed.

         A. Statute of Limitations

         Plaintiff's TCPA claims regarding phone calls made prior to May 10, 2013 are time barred. TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a); see also Schumacher v. AK Steel Corp. Ret. Accumulation Pension Plan, 711 F.3d 675, 682 (6th Cir. 2013). Plaintiff contends that his claims are tolled because of the class action in Snyder v. Ocwen Loan Servicing, LLC, Case No. 1:14-cv-08461 (N.D. Ill.), but his argument is unpersuasive. In American Pipe & Construction Co. v. Utah, the Supreme Court established the doctrine for class-action tolling. 414 U.S. 538 (1974). The Supreme Court held that for federal actions, "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554. But in the Sixth Circuit, a plaintiff forfeits the benefit of class-action tolling by filing a separate suit before there is a decision on the motion for class certification. Keyes, 2017 WL 4918530, at *4 (citing Wyser-Pratte Mgmt. Co. v. Texlon Corp., 413 F.3d 553 (6th Cir. 2005)). Accordingly, Plaintiff's claims did not toll and any TCPA claims arising from calls made before May 10, 2013-four years prior to Plaintiff's May 10, 2017 filing date-are time barred. The Court will dismiss those claims.

         B. Remaining TCPA Claims

          Plaintiff's remaining TCPA claims survive the motion to dismiss. Defendant argues that Plaintiff has not properly pled revocation of consent because (1) the alleged oral requests to stop calling do not constitute revocation, and (2) Plaintiff's allegations are ...


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