Hoffman v. Jelly Belly Candy Company, Inc. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 HOWARD HOFFMAN, as an No. 2:19-cv-01935-JAM-DB individual and on behalf of 8 all others similarly situated, 9 ORDER GRANTING DEFENDANT’S Plaintiff, MOTION TO STAY ACTION 10 v. 11 JELLY BELLY CANDY COMPANY, 12 INC., 13 Defendant. 14 15 This matter is before the Court on Jelly Belly Candy 16 Company, Inc.’s (“Defendant”) Motion to Stay. Defendant contends 17 that a stay is appropriate in this case pending resolution by the 18 United States Supreme Court of Barr v. American Association of 19 Political Consultants, Appeal No. 19-631 and, possibly, Facebook, 20 Inc. v. Duguid, Appeal No. 19-511. See Mot. at 3–5, ECF No. 15. 21 Howard Hoffman (“Plaintiff”) filed an opposition to Defendant’s 22 motion, Opp’n, ECF No. 16, to which Defendant replied, Reply, ECF 23 No. 18. After consideration of the parties’ briefing on the 24 motion and relevant legal authority, the Court GRANTS Defendant’s 25 Motion to Stay.1 26 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for June 2, 2020. 1 2 I. FACTUAL AND PROCEDURAL BACKGROUND 3 The case at hand involves a putative class action against 4 Defendant, alleging it violated the Telephone Consumer Protection 5 Act (“TCPA”), 47 § 227, in transmitting unsolicited text messages 6 using an Automatic Telephone Dialing System (“ATDS”). See 7 Compl., ECF No. 1. Specifically, Plaintiff contends that, on 8 June 8, 2019, and June 18, 2019, Defendant sent telemarketing 9 text messages to his cellular phone. Compl. ¶ 26. Each of 10 Defendant’s messages contained information meant to promote the 11 purchase of its goods. Compl. ¶¶ 26, 29. Plaintiff never 12 provided his express, written consent to receive Defendant’s 13 promotional text messages. Compl. ¶ 31. 14 Since the filing of Plaintiff’s complaint, the Supreme Court 15 has granted certiorari in Barr v. Am. Ass’n of Political 16 Consultants (“AAPC”). See Jan. 10, 2020 Dkt. Entry, Supreme 17 Court Dkt. No. 19-631. In AAPC, the Supreme Court is being asked 18 to determine whether the government-debt exception to the TCPA’s 19 automated-call restriction is unconstitutional. See Questions 20 Presented, Supreme Court Dkt. No. 19-631. And if so, whether the 21 proper remedy is to sever the exception from the remainder of the 22 statute. Id. 23 In addition, pending before the Supreme Court is a petition 24 for certiorari in Facebook, Inc. v. Duguid (“Duguid”). See Oct. 25 17, 2019 Dkt. Entry, Supreme Court Dkt. No. 19-631. In this 26 case, the petitioner is asking the Supreme Court to resolve the 27 following issues: (1) whether the TCPA’s prohibition on calls 28 made using an ATDS is unconstitutional and, if so, whether the 1 proper remedy is to broaden the prohibition; and (2) whether the 2 definition of ATDS in the TCPA encompasses any device that can 3 “store” and “automatically dial” telephone numbers, even if the 4 device does not “us[e] a random or sequential number generator.” 5 Id. To date, the Supreme Court has not decided whether it will 6 grant certiorari. 7 As a result of these pending cases and the issues raised in 8 them, Defendant now moves to stay these proceedings until the 9 Supreme Court has decided AAPC. Mot. at 11. 10 11 II. OPINION 12 A. Legal Standard 13 “[T]he power to stay proceedings is incidental to the power 14 inherent in every court to control the disposition of the causes 15 on its docket with economy of time and effort for itself, for 16 counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 17 248, 254 (1936). Accordingly, “[a] trial court may . . . enter 18 a stay of an action before it, pending resolution of independent 19 proceedings which bear upon the case.” Leyva v. Certified 20 Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979). 21 The decision whether to stay an action is committed to the 22 “sound discretion” of the district court and is based on 23 weighing “the competing interests which will be affected by the 24 granting or refusal to grant a stay . . . .” CMAX, Inc. v. 25 Hall, 300 F.2d 265, 268 (9th Cir. 1962). 26 Among these competing interests are: (1) the possible 27 damage which may result from the granting of a stay, (2) the 28 hardship or inequity which a party may suffer in being required 1 to go forward, and (3) the orderly course of justice measured in 2 terms of the simplifying or complicating issues, proof, and 3 questions of law which could be expected to result from a stay. 4 Id. Finally, “the proponent of a stay bears the burden of 5 establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 6 (1997). 7 B. Analysis 8 In this instance, ensuring that justice proceeds in an 9 ordered manner is the controlling interest. The government-debt 10 exception has been struck down as unconstitutional by both the 11 Ninth and Fourth Circuits. See Duguid v. Facebook, Inc., 926 12 F.3d 1146 (9th Cir. 2019); see also Am. Assoc. of Political 13 Consultants, Inc. v. F.C.C., 923 F.3d 159 (4th Cir. 2019). As a 14 result, both courts severed the government-debt exception while 15 leaving the remainder of the TCPA intact. Am. Assoc. of 16 Political Consultants, Inc., 923 F.3d at 171; Duguid, 926 F.3d 17 at 1156–57; see also 47 U.S.C. § 608. And now the Supreme Court 18 has been asked to resolve the legal issue of whether severing is 19 the proper remedy. See Questions Presented, Supreme Court Dkt. 20 No. 19-631. While this Court recognizes that the government- 21 debt exception is irrelevant here, it cannot ignore the fact 22 that the question gives the Supreme Court the option to use a 23 less exacting knife on the TCPA. If the Supreme Court chooses 24 to do more than merely sever the TCPA’s government-debt 25 exception, its decision in AAPC may have legal implications for 26 this case. 27 In addition, since the D.C. Circuit’s decision in ACA 28 Int’l. v. F.C.C., 885 F.3d 687, 695 (D.C. Cir. 2018), what 1 constitutes an ATDS has been in flux. Some courts have 2 concluded that an ATDS must be capable of either storing 3 telephone numbers using a random or sequential number generator 4 or produce such numbers using a random or sequential number 5 generator. See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 460 6 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., LLC., 7 948 F.3d 1301, 1306 (11th Cir. 2020); Dominguez ex rel. Himself 8 v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018). By contrast, 9 the Ninth Circuit has decided that an ATDS must be either stored 10 in any way or produced using a random or sequential number 11 generator. Marks v. Crunch San Diego, LLC., 904 F.3d 1041, 1049 12 (9th Cir. 2018). And the Second Circuit has agreed. See Duran 13 v. La Boom Disco, Inc., 955 F.3d 279, 287 (2d Cir. 2020) (“[W]e 14 hold that an ATDS may call numbers from stored lists, such as 15 those generated, initially, by humans.”). 16 The Supreme Court has not yet determined whether it will 17 take up this definitional problem. See Duguid, Supreme Court 18 Dkt. No. 19-631. However, given the significant split that has 19 developed among the circuits, the Supreme Court may not remain 20 silent for much longer and may grant certiorari in Duguid, or 21 else, its decision in AAPC may obviate the need to do so. In any 22 event, the definitional problem of what constitutes an ATDS is 23 relevant here, as Plaintiff alleges Defendant used an ATDS to 24 send him text messages, but Defendant contends it did not. 25 Compl. ¶ 33; Opp’n at 4–5. Accordingly, even if certiorari 26 remains pending or is denied in Duguid, the Court finds it is 27 prudent and more efficient to wait to see whether AAPC provides 28 more clarity on this issue. WwOAOW 2.497 VV VAAIVE Lb MYVUULLICIIL Cv VVrevVicy rayet vvulivV 1 Waiting for the Supreme Court’s decision in AAPC, and 2 1 possibly also Duguid, will allow this Court to adjudicate the 3 issues before it with far greater certainty. To do otherwise 4 would be a waste of judicial resources and a waste of the 5 | parties’ time and energy. For this reason, a stay awaiting 6 clarity on the validity of the TCPA in general, and the 7 definition of an ATDS more specifically, would allow for a more 8 orderly disposition of this motion. 9 10 Til. ORDER 11 For the reasons set forth above, the Court GRANTS 12 Defendant’s Motion to Stay pending resolution by the United 13 States Supreme Court of Barr v. American Association of Political 14 Consultants, Appeal No. 19-631. The parties are ordered to file a 15 joint status statement within ten days after the Supreme Court’s 16 decision in Barr becomes final advising the Court as to how they 17 | wish to proceed in this case. 18 IT IS SO ORDERED. 19 Dated: June 26, 2020 20 he Me 2 teiren staves odermacr 7008 22 23 24 25 26 27 28