Opinion
CV-20-01290-PHX-SPL
06-30-2021
Richard Winters, Jr., Plaintiff, v. Loan Depot, LLC, Defendant.
ORDER
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
Before the Court are Defendant LoanDepot.com LLC (“LoanDepot”)'s Motion to Dismiss the Second Amended Complaint or, in the Alternative, to Stay Pending the Ninth Circuit's Review of Perez, 20-15946 (Doc. 28) and Motion to Dismiss Non-Arizona Class Members' Claims for Lack of Personal Jurisdiction. (Doc. 30) Plaintiff has filed responses to both Motions. (Docs. 37, 38) Also before the Court is Defendant's Motion to Strike Class Allegations (Doc. 29), which has been fully briefed. (Docs. 33, 34)
For the following reasons, the case will be stayed pending the Ninth Circuit's review of Perez v. Rash Curtis & Assoc., (9th Cir. May 19, 2020) (No. 20-15946).
The instant case was brought under the Telephone Consumer Protection Act (“TCPA”) on June 30, 2020. (Doc. 1 at 1) Plaintiff Richard Winters, Jr. has alleged Defendant LoanDepot contacted or attempted to contact him on his cellular phone by prerecorded messaging and without “prior express consent.” (Doc. 27 at ¶¶7-12) The case was previously stayed pending resolution of the Supreme Court case Facebook, Inc. v. Duguid, 592 U.S. (2021). (Doc. 23 at 3) Following the Supreme Court's decision, the Court lifted the stay. (Doc. 26) Plaintiff filed a Second Amended Complaint on May 5, 2021 that narrowed his claims. (Docs. 27, 28 at 3) Defendant now seeks to dismiss the Second Amended Complaint pursuant to Fed.R.Civ.P. (“Rule”) 12(b)(1) and 12(b)(6), or in the alternative, stay the case pending the Ninth Circuit's decision in Perez. (Doc. 28 at 3) Plaintiff filed a response opposing the motion, but did not respond to Defendant's arguments regarding the stay. (Doc. 38)
One of the issues before the Ninth Circuit in Perez is whether a district court can exercise jurisdiction over an alleged violation of the TCPA that occurred when the TCPA was unconstitutional as ruled in Barr v. Am. Ass'n of Political Consultants (“AAPC”), 140 S.Ct. 2335, 591 U.S. (2020). See Brief for Appellant at 14-15, Brief for Appellee at 66-67, Perez, (9th Cir.) (No. 20-15946). The Supreme Court in Barr held that the government-backed debt exception to the TCPA was unconstitutional and severed it. 140 S.Ct. at 2356. It is currently disputed whether the entire TCPA was unconstitutional during the time the government-backed debt exception was in effect, or just that provision. Barr includes a footnote that states that the Supreme Court's decision does not negate the rest of the TCPA for the relevant period, but there is disagreement about how many justices joined in the footnote, authored by Justice Kavanaugh. Barr, 140 S.Ct. at 2355, n.12. Various U.S. District Courts have ruled inconsistently, some finding the footnote binding, others not. The issue is now in front of the Ninth Circuit. Oral argument is set for August 31, 2021. Notice of Oral Argument, Perez, (9th Cir. 2021) (No. 20-15946).
Franklin v. Navient, Inc., 2021 WL 1535575 (D. DE April 19, 2021); Massaro v. 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, 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 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); 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); 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).
Cunningham v. Matrix Fin. Servs., LLC, No. 4:19-CV-896, 2021 WL 1226618 (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) Hussain v. Sullivan Buick-Cadillac-GMC Truck, Inc., No. 5:20-CV-38-OC-30PRL, 2020 WL 7346536 (M.D. Fla. Dec. 11, 2020); Lindenbaum v. Realgy, LLC, 497 F.Supp.3d 290 (N.D. Ohio 2020).
If the Ninth Circuit finds the entire TCPA was unconstitutional during that period, it would rob this Court of its jurisdiction over the claims against Defendant. (Doc. 28 at 16) Defendants argue the TCPA was unconstitutional during that time. (Doc. 28 at 6) Plaintiff argues the TCPA was not unconstitutional during that time and thus the Court has jurisdiction. (Doc. 38 at 2-3) Plaintiff's response brief does not address Defendant's arguments in favor of a stay or acknowledge Perez at all.
It is well established that a court has inherent power to control its docket and may stay proceedings for a number of purposes, including “economy of time and effort.” Landis v. North Am. Co., 299 U.S. 248, 254 (1936). See also Clinton v. Jones, 520 U.S. 681, 706- 07 (1997). This Court considered the necessary factors when granting the stay pending the outcome of Duguid. (Doc. 23 at 2-3) “In determining whether to grant a stay, the Court balances (1) the harm a stay would cause the non-moving party, (2) the harm the moving party would suffer in the absence of a stay, and (3) interests of judicial economy.” Id. citing Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005). In considering those factors again, the Court finds they again weigh in favor of granting the stay.
Furthermore, Plaintiff failed to respond to Defendants' arguments regarding the stay, which the Court may construe as consent to granting the Motion to Stay. See Fiori v. Peoria Police Dep't, No. CV-19-03074-PHX-DJH, 2020 WL 95436, at *1 (D. Ariz. Jan. 8, 2020) (first citing Garcia v. GMAC Mortgage, LLC, 2009 WL 2782791, at * 1 (D. Ariz. 2009) (“If an argument is not properly argued and explained, the argument is waived.”); then citing Doe v. Dickenson, 2008 WL 4933964 at *5 (D. Ariz. 2008) (“[T]he Court is entitled to treat Plaintiffs' failure to respond as waiver of the issue and consent to Defendants argument”)). Because Plaintiff did not respond to the proposed stay, the Court will construe it as consent.
Accordingly,
IT IS ORDERED that Defendant's Motion to Dismiss the Second Amended 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:
I. This action is stayed pending the Ninth Circuit's resolution of Perez v. Rash Curtis & Assoc.
II. The Motion to Dismiss filed pursuant to Rules 12(b)(1) and 12(b)(6) is denied without prejudice.
IT IS FURTHER ORDERED that Defendant's Motion to Strike Class Allegations (Doc. 29) and Motion to Dismiss Non-Arizona Class Members' Claims for Lack of Personal Jurisdiction (Doc. 30) are denied without prejudice.
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.
IT IS FURTHER ORDERED that Defendant may refile any of the above motions no more than ten (10) days of the resolution of Perez.