United States District Court, N.D. Illinois, Eastern Division
Jeffrey T. Gilbert United States Magistrate Judge
Joint Motion for Stay of Proceedings Pending Ruling by the
D.C. Circuit Court of Appeals [ECF No. 45] filed by
Defendants FedEx and C3, and joined by Harte Hanks [ECF No.
48], is granted. The previously set ruling date of March 22,
2017 [ECF No. 59] is stricken with no appearances necessary.
Status hearing set for June 1, 2017, at 10:00 a.m. See the
Statement below for further details.
a proposed class action suit for violations of the Telephone
Consumer Protection Act ("TCP A"), 47 U.S.C. §
227 et seq. Plaintiff Najeh Abdallah
("Plaintiff) alleges he received hundreds of delivery
notification and solicitation phone calls from Defendants
Harte Hanks, Inc. ("Hart Hankes") and
C3/CustomerContactChannels, Inc. ("C3"), both of
which placed calls on behalf of Defendant FedEx Corporate
Services, Inc. ("FedEx"). Plaintiff alleges that
these calls were unauthorized and were made without his prior
express consent using an automatic telephone dialing system
("ATDS") in violation of the TCP A. [ECF No. 32].
Under the TCPA, an ATDS is defined as "equipment which
has the capacity (A) to store or produce telephone numbers to
be called, using a random or sequential number generator; and
(B) to dial such numbers." 47 U.S.C. § 227(a)(1).
Plaintiff also alleges Defendants made at least two phone
calls in a twelve-month period to Plaintiff and others
registered with the National Do-Not-Call Registry, in
violation of the TCPA. Id. § 227(c)(5).
jointly moved to stay proceedings in this case pending a
ruling by the United States Court of Appeals for the District
of Columbia Circuit ("the D.C. Circuit") in ACA
International v. FCC, No. 15-1211 (D.C. Cir.). One of
the issues raised in ACA International is whether
the meaning of the word "capacity" as used in the
TCPA's definition of an ATDS means only the "present
capacity" of the equipment to produce and dial phone
numbers when the calls at issue were made or whether the word
"capacity" also includes the "potential
capacity" to produce and dial phone numbers at the time
the calls were made. In this case, Defendants argue the Court
should stay discovery because the D.C. Circuit's
anticipated ruling on the meaning of the term
"capacity" in ACA International may narrow
or eliminate Plaintiffs ATDS claim in this case. [ECF No.
45-2]. Defendants argue that, at the very least, the ruling
by the D.C. Circuit will inform and focus the scope of
discovery on the AIDS claim. Plaintiff argues that,
regardless of what the D.C. Circuit decides in ACA
International, issues of fact still exist that will
require at least some discovery on Plaintiffs ATDS claim. So,
Plaintiff argues, discovery should be allowed to proceed now
rather than only after a decision is rendered in ACA
International. [ECF No. 56].
Court grants Defendants' Joint Motion for Stay of
Proceedings for the following reasons:
D.C. Circuit's ruling in ACA International,
though not binding, will provide this Court with valuable
input on the merits of Plaintiff s ATDS claim and the
permissible scope of discovery on that claim in this case.
The ACA International case was argued to the bench
in Washington, D.C, in October 2016, so it is not
unreasonable to assume a decision will be forthcoming in the
not too distant future. Plaintiff has not shown that he will
be prejudiced unduly if he has to wait to commence discovery
in this case until a decision is issued in the ACA
Plaintiff recently served upon Defendants 84 requests for
production of documents and 14 interrogatories. [ECF No. 58].
Plaintiffs requests for production of documents include 40
separately-defined terms and 16 separately-numbered
"instructions." During a status hearing on March
16, 2017, Plaintiff conceded these discovery requests are
over-inclusive and will need to be fine-tuned and focused
before Defendants respond to them. Plaintiff also conceded
that the D.C. Circuit's ruling in ACA
International will have some informative effect on the
scope of permissible discovery in this case, and that
discovery in this case could be more focused after the ruling
in ACA International.
Plaintiff suggested that the parties meet and confer about
Plaintiffs discovery requests and begin the fine-tuning
process now, and that Defendants not actually be required to
respond to Plaintiffs written discovery until after the D.C.
Circuit rules in ACA International. In the
Court's view, however, any meet and confer process
designed to fine-tune Plaintiffs numerous discovery requests
will be aided materially by the D.C. Circuit's decision
in ACA International. In fact, neither Plaintiff nor
Defendants seem to disagree with that proposition. Therefore,
any discussions the parties and counsel might have now about
Plaintiffs discovery requests likely would have to be
reprised or at least reevaluated after the D.C. Circuit's
parties concede Plaintiffs Do-Not-Call claim likely will be
unaffected by any ruling in ACA International, but
Defendants say they intend to file a motion for judgment on
the pleadings with respect to that claim. Plaintiff concedes
that, if such a motion is not construed as a summary judgment
motion, as to which Plaintiff could seek Rule 56(d)
discovery, then no discovery would be necessary for the Court
to rule on the motion for judgment on the pleadings on the
noted above, ACA International was argued in October
2016, over five months ago. Therefore, a decision in ACA
International likely will be rendered sooner in the
gestation of this case than was likely in some of the other
cases in which courts have denied motions to stay pending a
decision in ACA International. See, e.g., Edwards v.
Oporlun, Inc., 2016 WL 4203853 (N.D. Cal. June 14,
2016). Moreover, Defendants in this case have disclaimed any
intention to seek to extend a stay of discovery here pending
further review of the ACA International decision by
the full D.C. Circuit or the Supreme Court. Therefore, we are
not talking about a stay that would be in effect for an
indeterminate length of time. Once the D.C. Circuit rules,
Defendants concede Plaintiff should be permitted to go
forward with discovery against what they argue will be a more
informed and developed backdrop of the applicable law. To
this Court, that makes sense.
for all of these reasons, the Court believes prudence and the
balance of hardships weigh in favor of a stay of discovery in
this case pending a decision in ACA International.
The Court, however, will set a status hearing in 75 days so
that it can continue to appraise the propriety of staying
discovery in this case. Status hearing set for June 1, 2017,
at 10:00 a.m. If the D.C. Circuit issues a ruling in the
ACA International case before that date, the parties
individually or jointly should bring to the Court's
attention that development.
previously set ruling date of March 22, 2017 [ECF No. 59] is