- 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Richard Winters, Jr., ) No. CV-20-01290-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Loan Depot, LLC, ) 12 ) 13 Defendant. ) ) 14 ) 15 Before the Court are Defendant LoanDepot.com LLC (“LoanDepot”)’s Motion to 16 Dismiss the Second Amended Complaint or, in the Alternative, to Stay Pending the Ninth 17 Circuit’s Review of Perez, 20-15946 (Doc. 28) and Motion to Dismiss Non-Arizona Class 18 Members’ Claims for Lack of Personal Jurisdiction. (Doc. 30) Plaintiff has filed responses 19 to both Motions. (Docs. 37, 38) Also before the Court is Defendant’s Motion to Strike 20 Class Allegations (Doc. 29), which has been fully briefed. (Docs. 33, 34) 21 For the following reasons, the case will be stayed pending the Ninth Circuit’s review 22 of Perez v. Rash Curtis & Assoc., (9th Cir. May 19, 2020) (No. 20-15946). 23 The instant case was brought under the Telephone Consumer Protection Act 24 (“TCPA”) on June 30, 2020. (Doc. 1 at 1) Plaintiff Richard Winters, Jr. has alleged 25 Defendant LoanDepot contacted or attempted to contact him on his cellular phone by 26 prerecorded messaging and without “prior express consent.” (Doc. 27 at ¶¶7–12) The case 27 was previously stayed pending resolution of the Supreme Court case Facebook, Inc. v. 28 Duguid, 592 U.S. ___ (2021). (Doc. 23 at 3) Following the Supreme Court’s decision, the 1 Court lifted the stay. (Doc. 26) Plaintiff filed a Second Amended Complaint on May 5, 2 2021 that narrowed his claims. (Docs. 27, 28 at 3) Defendant now seeks to dismiss the 3 Second Amended Complaint pursuant to Fed. R. Civ. P. (“Rule”) 12(b)(1) and 12(b)(6), or 4 in the alternative, stay the case pending the Ninth Circuit’s decision in Perez. (Doc. 28 at 5 3) Plaintiff filed a response opposing the motion, but did not respond to Defendant’s 6 arguments regarding the stay. (Doc. 38) 7 One of the issues before the Ninth Circuit in Perez is whether a district court can 8 exercise jurisdiction over an alleged violation of the TCPA that occurred when the TCPA 9 was unconstitutional as ruled in Barr v. Am. Ass’n of Political Consultants (“AAPC”), 140 10 S. Ct. 2335, 591 U.S. ___ (2020). See Brief for Appellant at 14–15, Brief for Appellee at 11 66–67, Perez, (9th Cir.) (No. 20-15946). The Supreme Court in Barr held that the 12 government-backed debt exception to the TCPA was unconstitutional and severed it. 140 13 S. Ct. at 2356. It is currently disputed whether the entire TCPA was unconstitutional during 14 the time the government-backed debt exception was in effect, or just that provision. Barr 15 includes a footnote that states that the Supreme Court’s decision does not negate the rest 16 of the TCPA for the relevant period, but there is disagreement about how many justices 17 joined in the footnote, authored by Justice Kavanaugh. Barr, 140 S. Ct. at 2355, n.12. 18 Various U.S. District Courts have ruled inconsistently, some finding the footnote binding,1 19 others not.2 The issue is now in front of the Ninth Circuit. Oral argument is set for August 20 1 Franklin v. Navient, Inc., 2021 WL 1535575 (D. DE April 19, 2021); Massaro v. 21 Beyond Meat, Inc., 2021 WL 948805 (S.D. Cal. March 12, 2021); McCurley v. Royal Sea Cruises, Inc., 2021 WL 288164 (S.D. Cal. Jan. 28, 2021); Stoutt v. Travis Credit Union, 22 2021 WL 99636 (E.D. Cal. Jan. 12, 2021); Shen v. Tricolor California Auto Grp., LLC, No. CV 20-7419 PA (AGRX), 2020 WL 7705888 (C.D. Cal. Dec. 17, 2020), motion to 23 certify appeal denied, No. CV 20-7419 PA (AGRX), 2021 WL 1153361 (C.D. Cal. Feb. 11, 2021); United States v. Miselis, 2020 WL 5015072, at *16 (4th Cir. Aug. 24, 2020); 24 Lacy v. Comcast Cable Commc’ns, LLC, 2020 WL 4698646, at *1 (W.D. Wash. Aug. 13, 2020); Burton v. Fundmerica, Inc., 2020 WL 4504303, at *1 (D. Neb. Aug. 5, 2020); 25 Crossley v. Cal., 2020 WL 4747723, at *8 (S.D. Cal. Aug. 17, 2020); Salerno v. Credit One Bank, N.A., 2020 WL 4339219, at *3 (W.D.N.Y. July 28, 2020). 26 2 Cunningham v. Matrix Fin. Servs., LLC, No. 4:19-CV-896, 2021 WL 1226618 27 (E.D. Tex. Mar. 31, 2021); Creasy v. Charter Commc’ns, Inc., 489 F. Supp. 3d 499 (E.D. La. 2020), judgment entered, No. CV 20-1199, 2020 WL 7646640 (E.D. La. Dec. 23, 2020) 28 Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 5:20-CV-38-OC-30PRL, 2020 1 31, 2021. Notice of Oral Argument, Perez, (9th Cir. 2021) (No. 20-15946). 2 If the Ninth Circuit finds the entire TCPA was unconstitutional during that period, 3 it would rob this Court of its jurisdiction over the claims against Defendant. (Doc. 28 at 4 16) Defendants argue the TCPA was unconstitutional during that time. (Doc. 28 at 6) 5 Plaintiff argues the TCPA was not unconstitutional during that time and thus the Court has 6 jurisdiction. (Doc. 38 at 2–3) Plaintiff’s response brief does not address Defendant’s 7 arguments in favor of a stay or acknowledge Perez at all. 8 It is well established that a court has inherent power to control its docket and may 9 stay proceedings for a number of purposes, including “economy of time and effort.” Landis 10 v. North Am. Co., 299 U.S. 248, 254 (1936). See also Clinton v. Jones, 520 U.S. 681, 706– 11 07 (1997). This Court considered the necessary factors when granting the stay pending the 12 outcome of Duguid. (Doc. 23 at 2–3) “In determining whether to grant a stay, the Court 13 balances (1) the harm a stay would cause the non-moving party, (2) the harm the moving 14 party would suffer in the absence of a stay, and (3) interests of judicial economy.” Id. 15 citing Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). In considering those 16 factors again, the Court finds they again weigh in favor of granting the stay. 17 Furthermore, Plaintiff failed to respond to Defendants’ arguments regarding the 18 stay, which the Court may construe as consent to granting the Motion to Stay. See Fiori v. 19 Peoria Police Dep’t, No. CV-19-03074-PHX-DJH, 2020 WL 95436, at *1 (D. Ariz. Jan. 20 8, 2020) (first citing Garcia v. GMAC Mortgage, LLC, 2009 WL 2782791, at * 1 (D. Ariz. 21 2009) (“If an argument is not properly argued and explained, the argument is waived.”); 22 then citing Doe v. Dickenson, 2008 WL 4933964 at *5 (D. Ariz. 2008) (“[T]he Court is 23 entitled to treat Plaintiffs’ failure to respond as waiver of the issue and consent to 24 Defendants argument”)). Because Plaintiff did not respond to the proposed stay, the Court 25 will construe it as consent. 26 Accordingly, 27 WL 7346536 (M.D. Fla. Dec. 11, 2020); Lindenbaum v. Realgy, LLC, 497 F. Supp. 3d 290 28 (N.D. Ohio 2020). 1 IT IS ORDERED that Defendant’s Motion to Dismiss the Second Amended 2 | Complaint or, in the Alternative, to Stay Pending the Ninth Circuit’s Review of Perez, 20- 15946 (Doc. 28) is granted in the alternative as follows: 4 I. This action is stayed pending the Ninth Circuit’s resolution of Perez v. Rash 5 Curtis & Assoc. 6 II. The Motion to Dismiss filed pursuant to Rules 12(b)(1) and 12(b)(6) is 7 denied without prejudice. 8 IT IS FURTHER ORDERED that Defendant’s Motion to Strike Class Allegations 9| (Doc. 29) and Motion to Dismiss Non-Arizona Class Members’ Claims for Lack of 10 | Personal Jurisdiction (Doc. 30) are denied without prejudice. 11 IT IS FURTHER ORDERED that the parties shall file a joint notice with the Court no more than three (3) days after the resolution of Perez. 13 IT IS FURTHER ORDERED that Defendant may refile any of the above motions no more than ten (10) days of the resolution of Perez. 15 Dated this 30th day of June, 2021. 16 Ae 17 United States District Addze 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 2:20-cv-01290
Filed Date: 7/1/2021
Precedential Status: Precedential
Modified Date: 6/19/2024