In Jensen v. Roto-Rooter Servs. Co., No. C20-0223-JCC, 2020 U.S. Dist. LEXIS 151256 (W.D. Wash. Aug. 20, 2020), Judge Coughenour stayed a TCPA case pending SCOTUS’ review of what constitutes an ATDS.
Defendant moves to continue the stay in this case because the Supreme Court’s decision in Duguid will resolve the circuit split of what constitutes an auto dialer under the TCPA. The Third, Seventh, and Eleventh Circuits have adopted a definition that classifies auto dialers as equipment with the capacity to store or produce telephone numbers through the use of a random or sequential number generator. See Gadlehak v. AT&T Services, 950 F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1308 (11th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3rd Cir. 2018). Meanwhile, the Second and Ninth Circuits have defined auto dialers as any equipment with the capacity to automatically store and dial numbers, whether those numbers were generated by a random or sequential number generator. See Duran v. La Boom Disco, Inc., 955 F.3d 279, 284-85 (2nd Cir. 2020); Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). The question of what constitutes an auto dialer under the TCPA is central to this litigation. And the Supreme Court’s decision in Duguid will resolve the circuit split on the issue, as the underlying writ of certiorari asks the Supreme Court to determine whether the definition of an auto dialer in the TCPA includes devices that can store and automatically dial numbers, even without the use of a random number generator. See Brief for Petitioner at 2, Facebook, Inc. v. Duguid, Appeal No. 19-511. Furthermore, the minimal hardship caused by a stay weighs in favor of continuing the stay. Plaintiff has not shown that she has actually suffered, or will suffer, harm should the Court extend the stay order: Plaintiff does not allege that she or other class members have received unauthorized text messages from Defendant since January 2020, and therefore her damages will not be affected if a stay is granted. And a delay in a final judgment is not sufficient to warrant denial of a motion to stay. See CMAX, Inc., 300 F.2d at 268-69; Liberty Surplus Ins. Corp. v. IMR Contractors Corp., 2009 WL 1010842, slip op. at 11 (N.D. Cal. 2009). Defendant, on the other hand, would suffer if not granted an extension of the stay. In this class action case, Defendant would bear asymmetric discovery burdens and costs associated with defending itself against the purported class’s claims. See Am. Bank v. City of Menasha, 627 F.3d 266 (7th Cir. 2010). And Defendant would have to expend resources on discovery that may soon be rendered moot by the Supreme Court’s decision in Duguid. See, e.g., Davis v. Nationstar Mortg. LLC, 2016 WL 29071, slip op. at 10 (E.D. Pa. 2016) (finding that the defendant would be prejudiced if forced to expend resources pending the resolution of another case that could determine that the court lacked jurisdiction). Therefore, extending the stay of proceedings will benefit both the parties and the Court by pausing possibly unnecessary litigation and discovery. See CMAX, 300 F.2d 268-69. Furthermore, the interests of judicial economy favor staying this case. These proceedings are still at an early stage and neither party has expended considerable resources. The Supreme Court is set to soon deliberate upon Duguid, a case that bears directly upon the resolution of this litigation. A stay will thus allow the Court to preserve judicial resources. See id.