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Reynolds v. Geico Corp.

United States District Court, D. Oregon, Pendleton Division

March 1, 2017

PAM REYNOLDS, individually and on behalf of all others similarly situated, Plaintiff,
v.
GEICO CORPORATION, Defendant.

          OPINION AND ORDER

          PATRICIA SULLIVAN United States Magistrate Judge.

         Plaintiff Pam Reynolds brings this putative class action against defendant Geico Corporation for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Plaintiff alleges that defendant sent her, and others in two putative classes, unsolicited text messages using an automatic telephone dialing system, without obtaining consent, and despite requests to cease. Defendant has moved to stay the proceedings, or in the alternative, to dismiss plaintiff's complaint. (Docket No. 19). Defendant's Motion to Stay is based on the matter of ACA International v. FCC, No 15-1211 (D.C. Cir. 2015), currently pending before the Court of Appeals for the D.C. Circuit, which may decide the validity of a declaratory ruling by the Federal Communications Commission (“FCC”) and if so, defendant argues, could directly bear on the viability of plaintiff's claims in this action. Defendant's alternative Motion to Dismiss argues that plaintiff does not plausibly state a claim for relief under the TCPA. Plaintiff opposes defendant's Motion. (Docket No. 21). Although defendant has requested oral argument on its Motion, the Court has determined that the Motion is suitable for resolution without oral argument. On review of the parties' arguments and submissions, the Court GRANTS defendant's Motion to Stay, and accordingly, does not reach the merits of defendant's Motion to Dismiss.

         FACTUAL BACKGROUND

         Plaintiff owns a cellular telephone. Compl. (Docket No. 1) ¶ 27. Beginning in May 2016, plaintiff began receiving unsolicited text messages on her cellular telephone from “short code” 434-26, [1] “a number associated with” defendant. Id. ¶ 28. Plaintiff received one text message from defendant, from short code 434-26, on May 27, 2016, that read, “GEICO Policy: Your payment of $127.79 for policy ending in 6756 will be withdrawn from bank acct ending in 5155 on 06/01. Reply STOP to end texts.” Id. ¶ 29 & Ex. A (screenshots of text messages). Plaintiff received another text message from defendant, from short code 434-26, on June 25, 2016, that read, “GEICO Policy: Renewal ID Cards are now available at https://dispatch.geico.com/ecams/expressRenewal.xhtml for policy ending in 6756. Reply STOP to end texts.” Id. ¶ 30 & Ex. A (Docket No. 1-1). Plaintiff received another similar text message on June 26, 2016. Id. ¶ 31. On June 26, 2016, plaintiff emailed defendant's customer support requesting that the unsolicited text messages cease; that same day, defendant replied and said it would remove plaintiff's phone number from its marketing lists, allowing six to eight weeks to process the removal request. Id. ¶ 32 & Ex. B (Docket No. 1-2). Plaintiff sent this email instead of replying to the text message with “STOP, ” as the message had suggested, to request that messages cease. Plaintiff received further text messages in July and August 2016, including after the eight weeks defendant said it would need to stop sending such messages. Id. ¶¶ 33-35.

         PROCEDURAL BACKGROUND

         Plaintiff brings this action on behalf of two putative classes. The first, the “Autodialed No Consent Class, ” consists of those whose cellular telephones defendant sent text messages to without prior express consent. Compl. (Docket No. 1) ¶ 40. The second, the “Autodialed Stop Call Class, ” consists of those whose cellular telephones defendant sent text messages to after those recipients informed defendant that they no longer wanted to receive text messages. Id.

         Plaintiff brings two causes of action. First, on behalf of herself and the Autodialed No Consent Class, plaintiff alleges that defendant violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), by sending unsolicited text messages to cellular telephone numbers using an automatic dialer (i.e., “equipment that . . . had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and/or receive and store lists of phone numbers, and to dial such numbers, en masse, without human intervention”) without the recipients' prior express consent. Compl. (Docket No. 1) ¶¶ 47-53. Second, on behalf of herself and the Autodialed Stop Call Class, plaintiff alleges that defendant violated the same TCPA section by sending unsolicited text messages to cellular telephones using an automatic dialer after the recipients requested to no longer receive such messages. Id. ¶¶ 54-60.

         Plaintiff seeks monetary, declaratory, and injunctive relief for herself and the class members. Compl. (Docket No. 1), at 17-18.

         The Court has jurisdiction over this matter under 28 U.S.C. § 1331.

         LEGAL STANDARD

         The district court has the inherent power to stay its proceedings. Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.”).

A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or arbitral in character, and does not require that the issues in such proceedings are necessarily controlling of the action before the court.

Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863-64 (9th Cir. 1979). “The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997). In considering a motion to stay, a court must consider three factors: (1) potential prejudice to the non-moving party, (2) hardship and inequity to the moving party if the action is not stayed, and (3) the judicial resources that would be saved. See CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962); Oregon, ex rel. Kroger v. Johnson & Johnson, No. 11-cv-86-AC, 2011 WL 1347069, at *2 (D. Or. Apr. 8, 2011). “If there is even a fair possibility that the stay will work damage to some one else, the stay may be inappropriate absent a showing by the moving party of hardship or inequity.” Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) (quotation omitted). “A stay should not be granted unless it appears likely the other proceedings will be concluded within a reasonable time in relation to the urgency of the claims presented to the court.” Levya, 593 F.2d at 864. However, “being required to defend a ...


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