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Cunningham v. Homeside Financial LLC

United States District Court, D. Maryland

November 30, 2017

CRAIG CUNNINGHAM, on behalf of himself and others similarly situated Plaintiff
v.
HOMESIDE FINANCIAL, LLC Defendant

          MEMORANDUM & ORDER RE: STAY

          MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE

         The Court has before it Defendant's Motion to Stay Proceedings [ECF No. 17] and the materials related thereto. The Court has reviewed the materials provided by the parties and finds that a hearing is not needed.

         I. BACKGROUND

         Plaintiff Craig Cunningham (“Cunningham”) filed a putative class action against Defendant Homeside Financial, LLC (“Homeside”) asserting violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Cunningham alleges that Homeside “placed telemarketing calls to [his] cellular telephone number for the purposes of advertising its services using an automated dialing system.” Compl. ¶ 2, ECF No. 1.

         The TCPA provides a private cause of action to persons who receive calls in violation of 47 U.S.C. § 227(b)(1)(A). 47 U.S.C. § 227(b)(3). The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). Cunningham alleges that he did not consent to receive the calls, and since telemarketing campaigns generally place calls to thousands or millions of potential customers, he is suing on behalf of a proposed nationwide class of others who also received illegal telemarketing calls. Compl. ¶ 3.

         Homeside asserts that it only contacts customers who have consented to receive calls, and the dialing equipment it uses is not an “automatic telephone dialing system” (“ATDS”) for purposes of the TCPA. Answer ¶¶ 11, 19-20, Fifth Affirmative Defense, ECF No. 15.

         In 2015, the Federal Communication Commission (“FCC”), which has the authority to issue regulations implementing the TCPA, released a Declaratory Ruling and Order that construed the statutory definition of an ATDS, stating that “dialing equipment generally has the capacity to store or produce, and dial random or sequential numbers [and thus meets the TCPA's definition of ‘autodialer'] even if it is not presently used for that purpose, including when the caller is calling a set list of consumers.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd. 7961 (July 10, 2015). The FCC ruling prompted significant litigation and was challenged by a consolidated appeal to the D.C. Circuit in ACA Int'l, et al. v. FCC, Case No. 15-1211.[1] Briefing was completed, and oral argument was held in the D.C. Circuit on October 19, 2016.

         Homeside filed the instant motion to stay proceedings, requesting that the Court stay this matter pending the D.C. Circuit's decision in ACA Int'l on the validity and meaning of the FCC's ruling with regard to the definition of ATDS.

         II. LEGAL STANDARD

         “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Maryland v. Universal Elections, Inc., 729 F.3d 370, 379 (4th Cir. 2013) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936)). Indeed, “[a] trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979).

         In exercising discretion to stay a case, a court “must weigh competing interests.” Landis, 299 U.S. at 255. When deciding a motion to stay, courts weigh the following three factors:

(1) the interests of judicial economy;
(2) hardship and equity to the moving party if the action is ...

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