In In re Portfolio Recovery Assocs., LLC, Consumer Act Litig., 2022 U.S. Dist. LEXIS 141028, at *30-34 (S.D. Cal. Aug. 8, 2022), Judge Houston stayed a TCPA case based on an ATDS issue currently pending before the 9th Circuit in Brinkman.
Plaintiffs seek a stay of this action pending the resolution of Brickman v. Facebook, Inc., currently before the Ninth Circuit Court of Appeals. They contend the Ninth Circuit will resolve the issue of whether the definition of an automatic dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA“) includes a system that stores numbers to be called using a random or sequential number generator. Plaintiffs disagree with this Court’s interpretation of the Supreme Court’s holding in Facebook, Inc. v. Duguid, 141 S.C.t 1163 (2021) that an ATDS must randomly generate the telephone numbers to be called. Plaintiffs maintain a stay will promote judicial economy, can avoid the Court rendering a decision on Defendant’s motion summary judgment that may need to be revisited and will avoid substantial hardship to Plaintiffs in the form of inconsistent rulings and costly, potentially unnecessary litigation because Brickman’s challenges to the definition of an ATDS go to the heart of Plaintiffs’ claims in this case. They contend they are able to show that the systems used by Defendant use a random or sequential number generator to store numbers and thus qualify as an ATDS, if the Ninth Circuit agrees with Brickman’s arguments that an ATDS does not have to randomly generate the telephone numbers dialed. Additionally, Plaintiffs argue Defendant will suffer no harm from a stay given the class action was filed in 2010 and that the MDL was created in 2011 and the stay would be a short delay. . . In its order denying Plaintiffs’ application to reopen discovery, this Court rejected Plaintiffs’ theory that the Supreme Court in Duguid determined a dialing system qualifies as an ATDS if it uses a random or sequential number generator to either store numbers or store the numbers in a list and call them, upon finding “[t]he definition of an autodialer does not concern systems that randomly or sequentially store and dial numbers from a list that is generated in a non-random and non-sequential way”. Order at 6-7 (Doc. No. 843). Defendant’s pending motion for summary judgment argues Plaintiffs’ TCPA claims fail because Defendant’s dialing systems do not have the capacity to randomly or sequentially generate phone numbers to call. In Brickman, the plaintiff argues the district court erred in dismissing his TCPA action which alleged the dialing system at issue uses a random or sequential number generator to store numbers in a sequential or random order and send a text in the sequential or random order determined by the number generator. Appellant’s Opening Brief (Pla’s Exh. 1). Similar to Plaintiffs here, Brickman does not allege the telephone numbers called are created by the defendant’s equipment but are from a pre-produced list. See id. As such, the Brickman action pending before the Ninth Circuit will address an issue currently before this Court. The Court finds a stay of the action pending the Ninth Circuit’s decision in Brickman will not result in undue prejudice to Defendant and will promote the orderly course of justice by simplifying issues. To avoid any unnecessary hardship to Defendant, the Court will not require Defendant to refile its pending motion for summary judgment which is fully briefed. The motion will be withdrawn without prejudice to permit Defendant to re-notice the motion with a new hearing date once the stay is lifted.