In Meyer v. Receivables Performance Management, LLC, 2014 WL 1744284 (W.D.Wash. 2014), Judge Jones denied to stay a TCPA action based on the primary jurisdiction argument, denied Plaintiff’s motion for discovery as to dialer-lists, and denied Plaintiff’s request to delay filing a Motion for Class Certification. The District Court declined to stay the Action based on the Primary Jurisdiction argument.
This case had been pending for sixteen months when RPM filed its motion to stay this case pending the outcome of various proceedings before the Federal Communications Commission (“FCC”). One is a rulemaking petition that a debt collection consortium filed in January 2014. The others are four petitions for declaratory rulings as to various questions arising under the TCPA. ¶ The rulemaking petition is no basis for staying this case. It is one thing to hope that the FCC will issue new rules that favor debt collectors like RPM. It is another to hope that the FCC will impose those rules retroactively, such that they would eliminate whatever liability RPM faces for its past practices. See Aderhold v. Car2go N.A., LLC, No. 13–489RAJ, 2014 U.S. Dist. LEXIS 26320, at *21–23 & n. 4 (W.D.Wash. Feb. 27, 2014) (declining to address impact of new FCC rules that did not apply to defendant’s past conduct). There is no reason to believe that new FCC rules will have any impact on this case, except to the extent that Plaintiffs seek classwide injunctive relief. ¶ The declaratory relief petitions are also no basis for staying this case. First, two of the four proceedings to which RPM points predate this case, another was filed just a few months later, and the fourth was filed in late October 2013. That RPM did not mention any of these proceedings until it filed its motion to stay in March 2014 suggests either that RPM’s belief that these proceedings are a basis to stay this case is of remarkably recent vintage or that RPM seeks a stay for the primary purpose of delaying the resolution of this case. Second, the FCC’s decision to issue any ruling on these requests is a matter of dis-cretion. The court will not stay this case while it awaits rulings that may never come. Third, even if the FCC were to issue declaratory rulings that interpret the TCPA in a manner that favors RPM’s position in this case, the law would not necessarily require the court to defer to those rulings. ¶ Finally, the court observes that all four of the declaratory relief petitions that RPM points to are focused on which devices or technologies are autodialers within the meaning of the TCPA. That is a merits question, and one that RPM has so far avoided. Nothing has prevented RPM from filing a motion to dismiss or motion for summary judgment seeking a ruling that it does not use an autodialer within the meaning of the TCPA. RPM seems to prefer to rely on FCC rulings that may never come rather than its own effort to demonstrate that it does not use an autodialer. The court does not share that preference.
The District Court denied the Plaintiff some pre-certification discovery into dialer-lists.
Plaintiffs’ motion to compel discovery, which they brought as a joint motion in accordance with Rule 37(a)(2) of this District’s local rules, seeks to compel both the “dial list” of all numbers RPM called during the class period and the “batch file reports” RPM received from each of the four skip-trace vendors. Plaintiffs contend that they need this information to support their class certification motion. They do not need it to establish that the class is sufficiently nu-merous (see Fed.R.Civ.P. 23(a)(1)), because RPM has conceded the numerosity of the class. Plaintiffs argue instead that they need the information to demonstrate that the class is ascertainable and that they can give notice to the class. ¶ Plaintiffs’ litigation conduct undermines its in-sistence that the dial list is necessary for their class certification motion. RPM offered to produce a list covering March 2009 to March 2010. Plaintiffs offer no explanation of why that offer was unacceptable, other than to insist that RPM originally agreed to cover the entire class period, and to offer vague suspicions about whether RPM was “scrubbing” cellular phone numbers from its lists during that period. Declining to accept an offer of a list covering a quarter of the class period is a poor way to convince the court that the list is necessary for class certification. As to the batch file reports, Plaintiffs fail to explain in anything but vague terms how those reports will assist them in demonstrating that the class is ascertainable. Under these circumstances, the court will not require RPM to produce the batch file reports in advance of class certification. Instead, it will require Plaintiffs in their class certification motion to both make their best argument for class certification and to explain in detail how the dial list and batch file reports would have improved their argument. If necessary, the court will order RPM to compile the batch file reports and dial lists and permit Plaintiffs to supplement their class certification motion.