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Kotlyar v. University of Chicago Medical Center

United States District Court, N.D. Illinois, Eastern Division

November 30, 2017

LENA KOTLYAR, individually and on behalf of all others similarly situated, Plaintiff,
v.
THE UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendant.

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo Chief Judge

         Lena Kotlyar ("Plaintiff), on behalf of herself and two nationwide classes, brings this action under the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227, against the University of Chicago Medical Center ("Defendant") to stop its alleged practice of using unauthorized telephone calls through predictive dialers with pre-recorded or artificial voices to collect unpaid medical bills. (R. 11, Compl.) Defendant moves for a stay of the case pending a decision by the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, No. 15-1211 (D.C. Cir. argued Oct. 19, 2016), the outcome of which Defendant argues could affect several issues raised by the complaint. (R, 15, Mot. to Stay.) For the reasons stated below, the motion for a stay is granted.

         BACKGROUND

         According to the complaint, Defendant is a major provider of healthcare services to patients within the greater Chicago metropolitan area and throughout the Midwest. (R. 11, Compl. ¶ 9.) Defendant provides these services on a "fee-for-service" basis, which allows patients to pay for healthcare services directly, through a third-party, or through some combination of these methods. (Id. ¶ 10.) Defendant allegedly collects patient phone numbers at the time healthcare services are rendered, and, among other things, uses the phone numbers as part of an automated calling operation to collect on unpaid accounts. (Id. ¶ 11.) These automatic collection calls are placed through a predictive dialer which features pre-recorded or artificial voices. (Id.) Plaintiff claims that in an effort to reduce costs, Defendant allegedly fails to use adequate procedures to confirm that patient telephone numbers are accurate or current before placing these automated phone calls. (Id. ¶ 12.)

         Plaintiff alleges that sometime around April 2017, Defendant called her cellular telephone in an attempt to collect an unpaid medical debt. (Id. ¶ 15.) Plaintiff claims that she is not a current or previous patient of Defendant and has had no other relationship with Defendant. (Id. ¶¶ 15-16.) Plaintiff claims that after the first call, she received additional misdirected calls over the ensuing weeks from Defendant on her cellular phone. (Id. ¶ 17.) Plaintiff claims that these calls were attempts by Defendant to collect an unpaid debt owed by a delinquent patient of Defendant, and that all calls featured a pre-recorded or artificial voice. (Id.) Plaintiff claims she repeatedly contacted Defendant's customer service department and notified them that her phone number was not associated with Defendant's delinquent patient. (Id. ¶ 18.) She further claims that she informed Defendant's representatives that Defendant did not have permission to call her number again. (Id.) Plaintiff claims that her complaints were ignored, and that Defendant continued to use automatic collection calls to call her cellular phone to collect a debt she did not owe. (Id.)

         In May 2017, Plaintiff filed a complaint in the Circuit Court of Cook County, Illinois, on behalf of herself and two other similarly situated classes alleging violations of the TCP A. (R. 1-1, State Court Compl.) The case was removed to this Court by Defendant. (R. 1, Notice of Removal.) Thereafter, the Court dismissed the complaint without prejudice to Plaintiff filing either a timely motion to remand or an amended federal complaint. (R. 9, Min. Entry.) In June 2017, Plaintiff filed an amended federal complaint. (R. 11, Compl.) As alleged in the amended complaint, Plaintiffs "Called Party Class" claim alleges that in the four years prior to this suit, all persons within the class received at least one telephone call from Defendant on their cellular phone which featured a pre-recorded or artificial voice, and that the called party was not the same individual who provided the telephone number to Defendant. (Id. ¶ 20(i).) Plaintiffs "Revocation Class" claim alleges that within the four years prior to this suit, all persons in the class received at least one telephone call on their cellular phones from Defendant featuring prerecorded or artificial voices that Defendant did not have consent to make. (Id.)

         Defendant now moves for a stay pending a decision in ACA. (R. 16, Mem. at l.)ACA arose from a ruling issued by the Federal Communications Commission ("FCC") addressing numerous issues under the TCPA, including the regulation of calls placed to reassigned numbers, revocation of consent, and the use of predictive dialers.[1] See In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 F.C.C.R. 7961 (July 10, 2015). The D.C. Circuit heard arguments on October 19, 2016, in a consolidated case filed by nine companies, including lead petitioner ACA International, who sought judicial review of the FCC's ruling pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 500-504. See Burnett v. OcwenLoan Servicing, LLC, No. 17 C 3474, 2017 WL 5171226, at *1 (N.D. Ill. Nov. 8, 2017) (explaining procedural history of ACA). To date, no opinion has been issued. See Id. Defendant argues that the claims raised in this case could be impacted by a decision in AC A, and that a stay of the case is therefore appropriate. (R. 16, Mem. at 1-5.) Plaintiff objects to the request for a stay and argues that a ruling in ACA will have no impact on this case. (R. 26, Opp'n at 2.)

         LEGAL STANDARD

         "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cases on its docket with economy of time and effort for itself, for counsel, and for litigants." Texas Indep. Producers & Royalty Owners Ass 'n v. E.P.A., 410 F.3d 964, 980 (7th Cir. 2005) (quoting Landis v. North Am. Co., 299 U.S. 248, 254 (1936)). The party requesting a stay "bears the burden of establishing its need." Ankcorn v. Kohl's Corp., No. 15-1303, 2017 WL 395707, at *2 (N.D. Ill. Jan. 30, 2017) (citation omitted). "The parties and issues in two suits need not be identical for a court to stay proceedings in one suit pending a decision in another." Leung v. XPA Logistics, Inc., No. 13-3877, 2015 WL 12826472, at *1 (N.D. Ill. Aug. 12, 2015). Courts generally consider three factors in deciding whether to stay a case: (1) whether there would be undue prejudice or tactical disadvantage to the non-moving party, (2) whether a stay would simplify the issues in question, and (3) whether a stay would reduce the burden of litigation on the parties and the court. See Pfizer Inc. v. Apotex Inc., 640 F.Supp.2d 1006, 1007 (N.D. Ill. 2009); Leung, 2015 WL 12826471, at *1.

         ANALYSIS

         Applying the above factors, the Court concludes that a stay is warranted. A stay will not cause undue prejudice or disadvantage to the Plaintiff. Additionally, a stay will potentially simplify or resolve certain issues raised by Plaintiffs complaint, which in turn could reduce the burden of litigation on the parties and the Court.

         I. Undue Prejudice to the Non-Moving Party

         Defendant argues that a stay in this case would not result in any undue prejudice to Plaintiff because ACA was fully briefed and argued on October 19, 2016, and therefore a decision in ACA should be imminent. (R, 16, Mot. at 10.) In Plaintiffs view, however, a stay of this case "could be extremely lengthy, if not effectively indefinite, such that Plaintiff would be prejudiced." (R. 26, Opp'n at 8.)

         The Court concludes that a stay of this case would not result in any undue prejudice to Plaintiff. This case is still in the very preliminary stages, and other than the amended complaint being filed, no significant action has yet been undertaken by either party. As Defendant points out, the ACA case was fully briefed and argued more than a year ago. It seems highly likely that a decision is imminent. SeeAmodeo v. Grubhub, Inc., No. 17-CV-01284, 2017 WL 5166647, at *4 (N.D. Ill. Aug. 11, 2017) (finding that a stay based on ACA would not unduly prejudice the plaintiff because "[t]his case is in an early stage of litigation, and the delay caused by the stay will likely be insubstantial giv[en] that briefing and oral argument have already been completed in the D.C. Circuit" (internal citation and quotation marks omitted)). Plaintiff is incorrect in her argument that granting a stay would "necessarily require" this Court to extend the stay pending further appeals in ACA. (R. 26, Opp'n at 8.) This might be an issue for a later stage, but it is not a basis to deny the request for a stay in the first place. See Amodeo, 2017 WL 5166647, at *4 (rejecting as premature plaintiffs argument that "even after the D.C. Circuit Court rules, the parties might then appeal the case to the ...


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