United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
STAY , GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS , AND REFERRING CASE TO
STEPHEN J. MURPHY, III United States District Judge
Kirk Gold alleges that Defendant Ocwen Loan Servicing,
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. 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.
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
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.
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
Motion to Dismiss
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. 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.
Statute of Limitations
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
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 ...