1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JASON VEYTIA, et al., Case No.: 20-CV-0341-GPC-MSB

12 Plaintiffs,

ORDER:

13 v. (1) GRANTING JOINT MOTION TO 14 PORTFOLIO RECOVERY

STAY;

ASSOCIATES, LCC, et al., 15 Defendants. (2) GRANTING MOTION TO 16

WITHDRAW AS COUNSEL; AND

17 (3) DENYING AS MOOT MOTION 18

TO DISMISS AND RELATED JOINT

19 SCHEDULING MOTIONS.

20 [ECF No. 16, 29, 34, 35, 36.] 21 22 On August 27, 2020, the Parties filed a joint motion seeking to stay the instant 23 dispute pending the United States Supreme Court’s decision in Facebook, Inc. v. Duguid, 24 No. 19-511 (July 9, 2020). (ECF No. 35.) For the reasons below, the Court GRANTS the 25 motion. In addition, the Court GRANTS the pending motion by Defendant to withdraw 26 one of its attorneys as counsel of record, (ECF No. 16), and DENIES as MOOT, the 27 pending motion to dismiss and related scheduling motions. (ECF Nos. 29, 34, 36). 1 I. Background 2 On February 2, 2020, Plaintiffs Jason and Rebecca Veytia filed their initial 3 Complaint. (ECF No. 1.) Defendant Portfolio Recovery Associates, LLC filed an Answer 4 on March 19, 2020, which they then amended on April 8, 2020. (ECF Nos. 4, 7.) 5 On May 28, 2020, Defendant filed a motion for judgment on the pleadings under 6 Federal Rule of Civil Procedure (“Rule”) 12(c). (ECF No. 18.) On June 26, 2020, 7 Plaintiff filed a First Amended Complaint, rendering the Rule 12(c) motion moot. (ECF 8 No. 23.) On July 17, 2020, Defendant filed a motion to dismiss the FAC. (ECF No. 29.) 9 After discovering that the FAC contained some sensitive information, the Parties 10 jointly moved to strike the and re-file the FAC absent that information, which the Court 11 then granted on July 24, 2020. (ECF Nos. 30, 31.) Thus, the correct and operative version 12 of the FAC was filed on July 24, 2020. (ECF No. 33.) The Court scheduled a hearing for 13 Defendant’s motion to dismiss the FAC for October 9, 2020. (ECF No. 32.) 14 Plaintiff’s FAC alleges, in summary, that: 15 Defendant unlawfully communicated incessantly and continuously with Plaintiffs for over a year despite knowledge of legal representation and in 16 addition called Plaintiffs with such frequency to be oppressive and abusive. 17 Defendant would call multiple times in a given day and/or on a daily basis. Defendant called on Plaintiffs’ cell phones without their consent and used an 18 autodialer which electronically placed calls to the Plaintiffs without any 19 human intervention in violation of the TCPA and used a pre-recorded voice messages as further alleged herein. 20 21 (ECF No. 33 at ¶ 2.) Based on these facts, Plaintiffs allege two causes of action for 22 negligent and intentional violations of the Telephone Consumer Protection Act 23 (“TCPA”), (id. at ¶¶ 144–173), as well as several related causes of action for violations of 24 11 U.S.C. § 362, (id. at ¶¶ 101–10), and California’s Civil Code provisions regulating 25 debt collection. (Id. at ¶¶ 111–43.) 26 The Parties have since filed three joint motions. First, on August 21, 2020, the 27 Parties sought a joint extension of the time to file an opposition and reply to the motion to 1 dismiss. (ECF No. 34.) Then, on August 27, 2020, the Parties filed joint motions seeking 2 to (1) stay the current action and (2) continue the pending hearing on Defendant’s motion 3 to dismiss the FAC. (ECF Nos. 35, 36.) There is also a pending motion by Defendant to 4 withdraw one of its attorneys as counsel of record. (ECF No. 16.) 5 II. Legal Standard 6 A district court has “broad discretion to stay proceedings as an incident to its 7 power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing 8 Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). A court may “find it . . . efficient for its 9 own docket and the fairest course for the parties to enter a stay of an action before it, 10 pending resolution of independent proceedings which bear upon the case.” Leyva v. 11 Certified Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979); accord Mediterranean 12 Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983). The rule applies to 13 judicial proceedings and does not require the issues of such proceedings be necessarily 14 controlling of the action before the court. Leyva, 593 F.2d at 863–64. 15 In exercising its discretion in determining whether to grant a stay, a court must 16 weigh the competing interests of the various parties that may be affected by the decision 17 to grant or refuse to grant a stay. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 18 2005); CMAX Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Specifically, a court must 19 consider: (1) the possible damage or harm to the non-moving party which may result 20 from granting a stay; (2) the hardship or inequity the moving party may suffer in being 21 required to go forward with the case if the request for a stay is denied; and (3) the orderly 22 course of justice measured in terms of the simplifying or complicating of issues, proof, 23 and questions of law which could be expected to result from a stay. Lockyer, 398 F.3d at 24 1110; see also Single Chip Sys. Corp. v. Intermec IP Corp., 495 F. Supp. 2d 1052, 1057 25 (S.D. Cal. 2007). 26 “If there is even a fair possibility that the stay will work damage to someone else, 27 the stay may be inappropriate absent a showing by the moving party of hardship or 1 inequity.” Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 2 1066 (9th Cir. 2007) (quotation omitted). A stay should also “not be granted unless it 3 appears likely the other proceedings will be conducted within a reasonable time in 4 relation to the urgency of the claims presented to the court.” Leyva, 593 F.2d at 864. And 5 “[o]nly in rare circumstances will a litigant in one cause be compelled to stand aside 6 while a litigant in another settles the rule of law that will define the rights of both.” 7 Landis, 299 U.S. at 255. Ultimately, the “proponent of a stay bears the burden of 8 establishing its need.” Clinton, 520 U.S. at 708. 9 III. Analysis 10 Here, the Court concludes that all three factors weigh in favor of a stay pending the 11 Supreme Court’s decision in Facebook, Inc. v. Duguid, No. 19-511 (U.S.) (“Facebook”). 12 First, as to judicial economy, the Parties represent that the Supreme Court will 13 clarify the definition of an ATDS in Facebook and thereby resolve a circuit split during 14 the 2020 Term. (ECF No. 35 at ¶ 7.) Indeed, the Supreme Court recently granted a 15 petition for a writ of certiorari in Facebook as to the question, “[w]hether the definition of 16 ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ 17 telephone numbers, even if the device does not ‘us[e] a random or sequential number 18 generator.’” See Facebook, Inc. v. Duguid, 2019 WL 5390116 (U.S.), at *ii (petitioning 19 the Supreme Court); Facebook, Inc. v. Duguid, No. 19-511, 2020 WL 3865252, at *1 20 (U.S. July 9, 2020) (granting the writ). 21 Resolving Plaintiff’s claim under the TCPA would require the Court to address this 22 very issue, as Plaintiff alleges that “Defendant called and harassed Plaintiffs without their 23 prior express consent in excess of (280) times using an ‘automated telephone dialing 24 system,’” or ATDS. (ECF No. 33 at ¶ 146.) The Parties, moreover, contend this issue is 25 “disputed” and “central” to the resolution of the case, and the Court agrees. (ECF No. 35 26 at ¶ 8.) Consequently, this factor weighs in favor of a stay because the Supreme Court’s 27 decision will simplify a critical legal issue and streamline this Court’s consideration of 1 the instant matter. See Blower v. Portfolio Recovery Associates, LLC, No. 19-CV-02270- 2 BAS, 2020 WL 5223544 (S.D. Cal. July 23, 2020) (staying action where ATDS 3 definition was “central”); see also Safeco Ins. Co. of Am. v. Nelson, No. 20-CV-00211- 4 MMA, 2020 WL 3791675, at *6 (S.D. Cal. July 7, 2020) (recognizing as “valid” a 5 party’s concern that moving forward would require the parties’ to re-litigate an issue 6 decided in another matter). 7 Second, the Court also finds that Defendant may face hardship if required to go 8 forward this case. The Parties contend that confirming the definition of an ATDS will 9 permit them to “engage in fact and expert discovery and substantive briefing using the 10 proper definition of an ATDS under the TCPA.” (ECF No. 35 at 4). The Court agrees. 11 See Frable v. Synchrony Bank, 215 F. Supp. 3d 818, 822 (D. Minn. 2016) (noting that 12 awaiting decision clarifying meaning of ATDS will “help streamline the legal issues and 13 focus discovery”). 14 Third, the Court finds that Plaintiff is unlikely to suffer harm in the event that the 15 Court grants a stay. The Court infers as much from Plaintiff’s decision not to oppose the 16 motion. See In Re Portfolio Recovery Associates, LLC, Telephone Consumer Protection 17 Act Litigation, No. 11-MD-02295-JAH, 2020 WL 5223545 (S.D. Cal. July 27, 2020) 18 (“Plaintiffs’ non-opposition to the motion further supports the interests here weigh in 19 favor of a stay of the proceedings”); CoinLab Inc. v. MT Gox KK, 513 B.R. 576, 579 20 (W.D. Wash. 2014) (ordering stay where opposing party did not it “will suffer harm” if 21 the action were stayed). 22 In light of the foregoing, the Court finds that a stay here is appropriate at this time. 23 The Court is mindful, of course, that the Supreme Court’s decision in Facebook may not 24 be swift. See Smith v. JPMorgan Chase Bank, N.A., No. 20-CV-01777-CBM-, 2020 WL 25 5033532, at *2 (C.D. Cal. Aug. 21, 2020) (“it is purely speculative whether the United 26 States Supreme Court will reach a decision in Duguid within a year”). A stay is 27 appropriate here despite this fact for the reasons stated above, principally, that neither 1 Party contests the stay nor has either Party articulated why they would be prejudiced by 2 the stay. The Parties, moreover, do not contend that the stay will prevent the action from 3 being “conducted within a reasonable time in relation to the urgency of the claims 4 presented to the court.” Leyva, 593 F.2d at 864. And, the Parties may move to lift the stay 5 at any point for good cause. Consequently, the Court grants the joint motion for a stay. 6 Cf. Lacy v. Comcast Cable Commc’ns, LLC, No. 3:19-CV-05007-RBL, 2020 WL 7 4698646, at *2 (W.D. Wash. Aug. 13, 2020) (declining to stay a case pending the 8 resolution of Facebook given Plaintiff’s arguments that the Supreme Court’s decision 9 will alter discovery and that a stay could be “lengthy”). 10 IV. Conclusion 11 For the foregoing reasons, the Court HEREBY ORDERS that all proceedings in 12 this action are stayed pending the Supreme Court’s decision in Facebook, Inc. v. Duguid, 13 No. 19-511 (July 9, 2020). The Court FURTHER ORDERS that: 14 1. The Parties shall provide the Court with Joint Status Reports every 120 days 15 from the date of this Order to appraise the Court of any progress in this action, 16 and an additional Joint Status Report regarding remaining case management 17 deadlines and other relevant issues within fourteen (14) days of the Supreme 18 Court’s decision in Facebook; 19 2. The Parties may move at any time to lift the stay in this matter for good cause; 20 3. The Parties may file a joint motion to dismiss in the event that they reach a 21 settlement agreement; and 22 4. The stay may be lifted at any time by order of the Court. 23 In light of the stay, and to assist in managing its own calendar, the Court DENIES 24 without prejudice Defendant’s motion to dismiss the FAC as MOOT. (ECF No. 29.) 25 Once the stay is lifted, any relevant motions attacking the FAC may be filed. 26 Accordingly, the Court also DENIES as MOOT the joint motions to (1) continue the 27 1 || hearing on the motion to dismiss and (2) for additional time to oppose the motion to 2 || dismiss. (ECF Nos. 34, 36.) 3 Lastly, the Court GRANTS Defendant’s motion to withdraw Attorney Leanne Yu 4 ||as counsel of record. (ECF No. 16.) Two attorneys from Ms. Yu’s firm, attorneys Robert 5 || Travis Campbell and Margaret T. Cardasis, remain as counsel of record for Defendant. 6 IT IS SO ORDERED. 7 Dated: September 3, 2020 2 8 Hon. athe Coke 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28