In Frantz v. Factor, No. 20-cv-1012-MMA (KSC), 2020 U.S. Dist. LEXIS 213941 (S.D. Cal. Nov. 13, 2020), Judge Anello stayed a TCPA case pending the outcome of the Duguid decision by the SCOTUS. The Court described the split of authority succinctly.
Under the TCPA, it is “unlawful for any person within the United States . . . (A) to make any call . . . using any [ATDS] . . . (iii) to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The interpretation of 47 U.S.C. § 227(a)(1)(A) is the subject of a split among the circuit courts of appeal. “Specifically, the circuits are divided on the question of whether the clause ‘random or sequential number generator’ in Section 227(a)(1)(A) modifies both ‘to store’ and ‘to produce.'” Borden v. eFinancial, LLC, No. C19-1430JLR, 2020 U.S. Dist. LEXIS 192912, at *3 (W.D. Wash. Oct. 16, 2020). “The Third, Seventh, and Eleventh [Circuits] have read the TCPA to apply only to devices with the capacity to ‘generate random or sequential telephone numbers and dial those numbers.'” Komaiko v. Baker Techs., Inc., No. 19-cv-03795-DMR, 2020 WL 5104041, at *2 (N.D. Cal. Aug. 11, 2020) (brackets omitted) (quoting Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018)); see also Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306-10 (11th Cir. 2020). In contrast, the Ninth Circuit defined an ATDS as “equipment which has the capacity—(1) to store numbers to be called or (2) to produce numbers to be called, using a random or sequential number generator—and to dial such numbers automatically.” Duguid v. Facebook, Inc., 926 F.3d 1146, 1150 (9th Cir. 2019) (emphasis added) (quoting Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1053 (9th Cir. 2018)). On July 9, 2020, the Supreme Court granted certiorari review of the Ninth Circuit’s decision in Duguid to resolve this circuit split. See Facebook, Inc. v. Duguid, Sup. Ct. Dkt. No. 19-511. The Supreme Court’s docket provides the following question presented: “[w]hether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.'” Id.
The District Court ordered the stay.
Defendant argues that “any decision rendered by the Supreme Court will necessarily simplify numerous practical aspects of this case, including discovery, class certification, and motions practice, and will prevent duplicative proceedings.” Doc. No. 16 at 24. Plaintiff responds that “Defendant’s failure to explain how a decision in Facebook would narrow the scope of discovery . . . is reason enough to deny its motion.” Doc. No. 18 at 19. As discussed in the preceding section, a stay pending the outcome of Facebook will promote the orderly course of justice by clarifying the issues involved in this case. See supra Section III.B.2. The Supreme Court’s decision in Facebook will provide clarity to the definition of an ATDS, a central issue in both of Plaintiff’s claims—negligent and willful violations of the TCPA. See Sealey v. Chase Bank (U.S.A.), N.A., No. 19-CV-07710-JST, 2020 WL 5814108, at *2 (N.D. Cal. Sept. 29, 2020) (“[T]he orderly course of justice dictates that [Facebook] should be decided first, as that case addresses the central question at issue here.”); Borden, 2020 U.S. Dist. LEXIS 192912, at *6 (“[A] stay will promote the orderly course of justice because the Supreme Court’s decision will inform the central question at issue here: whether [the defendant] used an ATDS to send its text messages to [the plaintiff].”). Accordingly, the Court finds that the third factor weighs in favor of granting a stay. Therefore, after weighing the competing interests, the Court concludes that a stay is warranted pending the Supreme Court’s resolution of Facebook.