United States District Court, D. Maryland
CRAIG CUNNINGHAM, on behalf of himself and others similarly situated Plaintiff
HOMESIDE FINANCIAL, LLC Defendant
MEMORANDUM & ORDER RE: STAY
J. GARBIS UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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. Briefing was completed, and oral argument
was held in the D.C. Circuit on October 19, 2016.
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
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).
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