In Akselrod v. Marketpro Homebuyers LLC, No. CCB-20-2966, 2021 U.S. Dist. LEXIS 5253 (D. Md. Jan. 11, 2021), Judge Blake denied staying a TCPA case when the case did not turn of the definition of an ATDS.
In order to succeed on its autodialing claim, Akselrod must prove that the communications he received were made using an automated telephone dialing system (“ATDS”). The issue in Duguid is whether an ATDS includes technology that simply has the capacity to store numbers to be dialed automatically, as the Ninth Circuit has held, Duguid v. Facebook, 926 F.3d 1146, 1151 (9th Cir. 2019), or whether the technology must also use a random or sequential number generator in order to fall within the definition, as the Third and Eleventh Circuits have held, Dominguez v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1306-08 (11th Cir. 2020). It appears to the court from Akselrod’s complaint that the system MarketPro used to send messages to Akselrod could fall within either (or neither) of the contested definitions of an ATDS. This raises the possibility that if the case is stayed until the Supreme Court resolves the definition of an ATDS, discovery and briefing regarding whether MarketPro’s system qualifies as an ATDS would still be necessary. But if the case proceeds now, the parties will be able to take targeted discovery so that when Duguid is decided, the case may be resolved more quickly based on the Court’s definition of an ATDS and the parties’ knowledge of the system’s capabilities. Additionally, a stay would delay the resolution of Akselrod’s Do-Not-Call Registry claim, which is distinct from the autodialing claim. Thus, the more efficient approach, as other courts have held in TCPA cases where discovery on the ATDS would be necessary regardless of the outcome of Duguid or where a stay would delay additional unrelated claims, is to allow at least some discovery to proceed. See, e.g., Lacy v. Comcast Cable Commc’ns, LLC, Case No. 3:19-cv-05007-RBL, 2020 U.S. Dist. LEXIS 146003, 2020 WL 4698646, *2 (W.D. Wash. Aug. 13, 2020); Pittenger v. First Nat’l Bank of Omaha, No. 20-CV-10606, 2020 U.S. Dist. LEXIS 171062, 2020 WL 5596162, at *3 (E.D. Mich. Sept. 18, 2020).