After agreeing to stay the proceedings in a Telephone Consumer Protection Act case pending the outcome of Marks v. Crunch San Diego in the Ninth Circuit Court of Appeals, a District Court judge in Nevada has denied a request from the defendant for a second stay pending the release of a proposed rule from the Federal Communications Commission, because who knows how long it will take for a proposed rule to be issued, finalized and be put into effect.
A copy of the ruling in the case of Thomas v. Smith-Palluck Associates, doing business as Las Vegas Athletic Clubs can be accessed by clicking here.
The suit was originally filed in 2017 by the plaintiff, accusing the defendant of violating the TCPA by “repeatedly” calling her using automated equipment after she stopped paying for her gym membership. The case was originally stayed in September 2018 pending the outcome of Marks v. Crunch, which also occurred last September.
Because the defendant can not “point to a definite time or set of circumstances when a stay would no longer be appropriate,” Judge Miranda Du of the District Court for the District of Nevada denied to extend the stay, even though the rules that are being worked on by the FCC will likely address how an automatic telephone dialing system is to be defined going forward, which affects the crux of the case in question here.
“Most notably, it is unclear when the FCC will issue new rules that would settle the question of whether Defendant’s system at issue here is an ATDS, and when those rules will become final in light of likely legal challenges to them,” Judge Du wrote. “It is also unclear whether the FCC Decision would definitively resolve all pertinent issues in this case. In short, the FCC Decision favorable to Defendant’s position may never arrive. Thus, it would be inefficient to indefinitely delay these proceedings — and efficiency is a key consideration when determining whether to invoke the prudential doctrine of primary jurisdiction.”
