In Konopca v. Center for Excellence in Higher Education, Inc., 2016 WL 4644461, at *2–3 (D.N.J., 2016), Judge Arpert denied a request to stay a TCPA case until the ACA proceedings had run their course.

The first factor the Court considers is whether a stay would unduly prejudice the Plaintiff. Here, if a stay is granted, there is the potential for a lengthy delay, as it is uncertain when the D.C. Circuit will issue a ruling. “Because delay results inherently from the issuance of a stay, courts have found that mere delay does not, without more, necessitate a finding of undue prejudice and clear tactical disadvantage.” Nussbaum v. Diversified Consultants, Inc., No. 15-600, 2015 WL 5707147, at *2 (D.N.J. Sept. 28, 2015) (quotations omitted). However, the delay here could be substantial. As noted by one court in addressing a motion similar to the instant motion, “the D.C. Circuit is unlikely to be the final step in the litigation over the FCC’s 2015 Omnibus Order. Whichever party is unsuccessful in that court is almost certain to appeal to the Supreme Court. Thus, even the most optimistic estimate of the time required for a decision from the D.C. Circuit significantly understates both the delay a stay might engender and the concomitant prejudice to Plaintiff.”  Lathrop v. Uber Techs., Inc., No. 14-CV-05678-JST, 2016 WL 97511, at *4 (N.D. Cal. Jan. 8, 2016); see also Elikman v. Sirius XM Radio, Inc., No. 15-2093, 2015 U.S. Dist. LEXIS 171769 at *6-7 (N.D. Ill. December 21, 2015) (“Staying the case pending the D.C. Circuit’s review would also subject [Plaintiff] to the inequity of indefinite delay, as it is unknown when the D.C. Circuit will rule.”). Thus, this factor weighs against staying this case.  Second, the Court considers whether Defendants would suffer a hardship or inequity if forced to proceed. As to this factor, Defendants argue that a stay promotes “simplification and basic fairness.” ECF No. 23 at 6. In particular, Defendants argue that “absent a stay, questions will arise as to the deference due to the [FCC Ruling] that may not need to be answered once the D.C. Circuit rules. Fairness to Defendants and judicial economy dictate that this Court wait for the outcome of the ACA Int’l appeal to see whether the [FCC Ruling] will survive the appeal process.” Id. The Court finds, however, this argument to be more relevant to the third factor. The Defendants simply have not sufficiently identified a genuine hardship or inequity and, therefore, the Court finds that this second factor weighs against staying this case.  Third, the Court considers whether the stay would further the interest of judicial economy. At this stage of the litigation, the parties are presently engaged in discovery. Although the decision in ACA Int’l appeal could potentially clarify certain issues of law, factual issues will remain. Consequently, regardless of the D.C. Circuit’s eventual ruling, it will still be necessary for the parties to obtain discovery on the facts of this case. Discovery should proceed, therefore, even in light of the pending appeal. Thus, the Court finds that this factor weighs against entering a stay.