With Oral Argument Completed, Courts have Been More Inclined to Grant Stays Pending the Outcome in Facebook v. Duguid
On December 8, 2020, the Supreme Court heard oral argument in Facebook v. Duguid on the issue of the definition of an automatic telephone dialing system (“ATDS”) under the TCPA. Prior to oral argument, rulings on motions to stay TCPA cases pending the Supreme Court’s rulings were mixed. However, now that the Supreme Court has held oral argument (thus making the issuance of an opinion in the near future more probable), courts have been willing to grant stays with much greater frequency.
Indeed, most courts that have issued stays since oral arguments have specifically pointed to their completion as a factor supporting a stay. For example:
Ulery v. AT&T Mobility Servs., LLC, No. 20-CV-02354-PAB-KMT, 2020 WL 7333835 (D. Colo. Dec. 12, 2020) - The Court held that there is no evidence that Plaintiff would be prejudiced by the stay, but Defendant could be prejudiced by engaging in discovery at this time, and judicial economy will be enhanced by granting the stay because the Supreme Court’s decision is likely to simplify critical legal issues at the heart of the case.
Berrow v. Navient Sols. LLC, No. CV-20-01342-PHX-SMB, 2020 WL 8267706 (D. Ariz. Dec. 17, 2020) – In granting the stay, the Court noted that “oral argument was held at the Supreme Court in Duguid on December 8, 2020, staying the case until a decision is issued from the Supreme Court will not cause prejudice to Plaintiff's case because he will likely only need to wait, at most, a few months to begin discovery. This short delay is not substantial enough to cause a hardship of Plaintiff's prosecution of this matter, as his evidence is unlikely to disappear in this short amount of time.” Id. at *2.
Van Elzen v. Glob. Strategy Grp., LLC, No. 20-CV-3541 (JPO), 2021 WL 185328 (S.D.N.Y. Jan. 19, 2021) – Similarly in Van Elzen, the court held the stay was warranted because “[t]he Supreme Court has already held oral argument in Facebook v. Duguid, and the only harm that Plaintiff has suffered, and the only future harm that delayed relief may risk, is the minor ‘annoyance’ of receiving an unsolicited text message.” Id. at *4.
Frey v. Frontier Utilities Ne. LLC, No. CV 19-2372-KSM, 2021 WL 322818 (E.D. Pa. Feb. 1, 2021) –In granting the stay, the Court noted “the Supreme Court held oral argument in Facebook over a month ago, suggesting that the stay will not be in effect for more than a few months.” Id. at *2.
Wilson v. Rater8, LLC, No. 20-CV-1515-DMS-LL, 2021 WL 347306, at *2 (S.D. Cal. Feb. 2, 2021) –The Court granted the request for a stay, holding that the risk of prejudice to Plaintiff is minimal because the duration of the stay is “reasonably determinate [because] [u]nder the Supreme Court's customary practice, a decision in Duguid will likely be issued by the end of this summer.”
While the majority the courts appear to be inclined to grant stays after Facebook’s oral argument, at least one court has denied the request for a stay pointing to the value in allowing discovery to occur and also noting that other claims would not be in impacted. In Akselrod v. MarketPro Homebuyers LLC, No. CV CCB-20-2966, 2021 WL 100666 (D. Md. Jan. 12, 2021), the Court denied the request for a stay finding that (1) parties should be allowed to proceed with targeted discovery so that when Facebook is decided, the case may be more quickly resolved based on the Court's definition of an ATDS and the parties’ knowledge of the system's capabilities and (2) Plaintiff’s Do Not Call Registry claim is separate from the ATDS claim and would not be impacted by the Facebook decision.
Notably, the assertion of other types of claims has frequently been a factor cited by courts when denying claims. Smith v. JPMorgan Chase Bank, N.A., 20-CV-01777-CBM-(PJWx), 2020 WL 5033532, at *2 (C.D. Cal. Aug. 21, 2020) (denying motion to stay where “a motion to amend the complaint to allege causes of action outside the scope of the Duguid decision [was] pending”). However, when TCPA claims solely involve calls made with an ATDS, there are little grounds left for plaintiffs to persuasively argue against stays pending Duguid now that oral arguments have occurred, and an opinion is likely forthcoming in the near future.