In McMillion v. Rash Curtis & Associates, Case No. 16-cv-03396-YGR2018 WL 3023449 (N.D. Cal. Jun3 18, 2018), Judge Gonzales-Rogers declined to revisit her ruling on summary judgment (previously reported on here  or to stay the case pending the outcome of the 9th Circuit’s Marks ruling.  First, the District Court declined to reconsider her ruling on summary judgment.

Rash Curtis argues that because the Court’s order on the motions for summary judgment relied “solely” on the Dialer’s “capability to ‘predictively’ dial phone numbers ‘without human intervention,’ ” the Court should reconsider its order in light of the D.C. Circuit’s holding in ACA International which “remove[s] ‘predictive dialers’ as well as dialers which ‘operate without human intervention,’ from the list of telephone dial equipment which constitute ATDSs.” . . . The D.C. Circuit’s decision in ACA International may influence a future ruling by the Ninth Circuit regarding the TCPA, but it does not itself constitute a change in the controlling law. First, ACA International invalidated only the 2015 FCC Order—the court discusses but does not rule on the validity of the 2003 FCC Order or the 2008 FCC Order. See ACA International, 885 F.3d at 703 (finding that the FCC’s 2015 ruling, in describing the functions a device must perform to qualify as an autodialer, fails to satisfy the requirement of reasoned decisionmaking and noting that it may be permissible for the FCC to adopt either interpretation).  Second, even if the D.C. Circuit had vacated the 2003 and 2008 FCC Orders, ACA International has no bearing on pre-existing Ninth Circuit precedent. In 2009, the Ninth Circuit held that for a dialing system to be an ATDS it “need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Ci. 2009). In 2012, the court held that “capacity” is not limited to present ability and that “predictive dialers fall squarely within the FCC’s definition of ‘automatic telephone dialing system.’ ” Meyer v. Portfolio Recovery Assocs., 707 F.3d 1036, 1043 (9th Cir. 2012).  Rash Curtis also argues that because the D.C. Circuit in ACA International “confirmed the Commission’s embraces of an interpretation of the statutory phrase prior express consent grounded in conceptions of reasonable reliance,” the Court should reconsider whether the defendant reasonably relied on prior express consent provided by the Reynoso, who previously owned Perez’s phone number.5 (Motion at 21-22.) As noted above, the decision in ACA International may influence a future ruling, but it does not itself constitute a change in the controlling law. Additionally, even if ACA International did constitute controlling law, it does not change the Ninth Circuit’s finding in Meyer that “prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed.” See Meyer, 707 F.3d at 1042 (emphasis supplied).  Accordingly, because the D.C. Circuit’s ruling in ACA International does not constitute controlling law this circuit, the Court finds that parties’ motions for summary judgment are not appropriate for reconsideration.

Second, the District Court declined to stay the action pending the outcome of Marks.  

Now that the D.C. Circuit has issued its opinion in ACA International, Rash Curtis requests that the Court reconsider its motion to stay the instant case pending the Ninth Circuit’s decision in Marks.6 (Motion at 25.) A stay pending the resolution of an appeal in another case is appropriate only in “rare circumstances.” Landis v. North American Company, 299 U.S. 248, 255 (1936). Those circumstances include whether (i) a final result is imminently forthcoming; (ii) the impending decision would have an impact on the issues raised in the instant matter; (iii) the moving party demonstrates hardship in moving forwarding; and (iv) a stay will prejudice the non-moving party. See Glick v. Performant Fin. Corp., 2017 WL 786293 at *2 (N.D. Cal. Feb. 27, 2017) (denying defendant’s motion to stay the case pending decisions in ACA International and Marks ); Edwards v. Oportun, Inc., 193 F.Supp.3d 1096, 1100-1102 (N.D. Cal. 2016).  Given the recent decision in ACA International, the pending resolution of which was the Ninth Circuit’s express reasoning for sua sponte ordering a stay in Marks, a final result in Marks may be forthcoming. The impending decision in Marks will constitute controlling law and will likely clarify the Ninth Circuit’s position on the type of device or system that qualifies as an ATDS within the meaning of the TCPA. However, plaintiffs’ TCPA claims are not limited to Rash Curtis’ use of an ATDS. They also concern defendant’s use of an artificial or prerecorded voice system. (Opp. at 19.); see Mendez v. Optio Solutions, LLC, 239 F.Supp.3d 1229, 1233 (S.D. Cal. 2017) (holding that stay of a case pending the D.C. Circuit’s decision in ACA International is inappropriate where plaintiff’s TCPA claims are not limited to defendant’s use of an ATDS but also concern defendants use of an artificial or prerecorded voice system).  Although a decision may be forthcoming in Marks that would likely have some impact on the issues raised in the instant matter, it is unclear whether a resolution of Marks will “have a direct impact on the issues before the court, or substantially simplify the issues presented.” Id. “Even if the outcome [in Marks] was relevant to these proceedings and favorable to the [d]efendant, other issues would remain ripe for consideration, discovery, and resolution.” Id. Therefore, the Court is open to considering bifurcation of the case as between those alleged calls involving ATDSs and those involving artificial or prerecorded voice systems. However, the Court finds that a stay pending the resolution of Marks is not appropriate in the instant case.