Hansen v. Rock Holdings, Inc. ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILL HANSEN, No. 2:19-CV-0179-KJM-DMC 12 Plaintiff, 13 v. ORDER 14 LMB MORTGAGE SERVICES, INC., et al., 15 Defendants. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this civil action under 19 the Telephone Consumer Protection Act (TCPA). The case proceeds against defendants Digital 20 Media Solutions, LLC (Digital Media), LMB Mortgage Services, Inc. (LMB), and CPL Assets, 21 LLC (CPL). All defendants sought an order to compel arbitration and to stay proceedings. See 22 ECF Nos. 23 (amended motion to compel arbitration filed by LMB and CPL) and 26 (joinder 23 filed by Digital Media). Defendants LMB and CPL have appealed the District Judge’s January 24 21, 2020, order denying the motion to compel arbitration and stay proceedings. See ECF Nos. 40 25 (order) and 43 (notice of appeal). 26 / / / 27 / / / 28 / / / 1 On February 20, 2020, the court issued an order sua sponte vacating the scheduling 2 | conference set for February 27, 2020, pending resolution of the appeal and return of jurisdiction 3 | to this court. That order was issued in error. See Britton v. Co-op Banking Group, 916 F.2d 1405 4 | (9th Cir. 1990); see also In re Williams Sports Rentals, Inc., 2017 WL 4923337, at *2 (E.D. Cal. 5 | 2017). Because the issue of arbitrability — the only issue presented on appeal — is severable from 6 | the merits of the underlying dispute, see Moses H. Cone Memorial Hospital v. Mercury 7 | Construction, 460 U.S. 1, 21 (1983), and because no stay of proceeding has been entered, this 8 | court may proceed with case scheduling notwithstanding the pending appeal, see Britton, 916 9 | F.2d at 1412. 10 Accordingly, the February 20, 2020, order is vacated and the scheduling 11 | conference remains on calendar for February 27, 2020, at 11:00 a.m., in Sacramento, California, 12 | Courtroom 4, as originally ordered on February 13, 2020. The scheduling conference shall 13 | proceed on the joint case management report filed on January 31, 2020. Because the joint report 14 | was filed before defendants LMB and CPL appealed the order denying the motion to compel 15 | arbitration and stay proceedings, the parties shall be prepared to discuss the practical effect of the 16 || appeal on scheduling litigation in this court on the merits of the underlying claims and defenses. 17 IT IS SO ORDERED. 18 19 | Dated: February 21, 2020 20 DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28