In Mendez v. Optio Solutions, LLC, 2017 WL 914587, at *3 (S.D.Cal., 2017), the Court declined to stay a TCPA case pending the outcome of the ACA Int’l proceedings in the D.C. Circuit Court.
Upon review of the parties’ arguments in support and in opposition of a stay, as well as the reasoning of other courts to address the present issue, the Court finds a stay is inappropriate. Defendant has not shown this is one of the “rare circumstances” in which a stay pending the resolution of an appeal in another case is appropriate. See Landis, 299 U.S. at 255; Lathrop v. Uber Tech., Inc., No. 14-CV-5678-JST, 2016 WL 97511 at *5 (N.D. Cal. Jan. 8, 2016). First, while Defendant correctly asserts that briefing and oral arguments in the appeal are now complete, “it is far from guaranteed that a final result in ACA International is imminently forthcoming.” Glick v. Performant Fin. Corp., No. 16-CV-5461-JST, 2017 WL 786293, at *2 (N.D. Cal. Feb. 27, 2017) (emphasis added). In fact, courts in this Circuit have recently rejected this argument on the basis that whatever the outcome, appeal is likely and will further delay proceedings until a final determination is made by the U.S. Supreme Court. See id.; Cabiness v. Educ. Fin. Solutions, LLC, No. 16-CV-1109-JST, 2017 WL 167678, at *3 (N.D. Cal. Jan 17, 2017); Lathrop, 2016 WL 97511, at *4 (“[T]he 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.”). Thus, as presently considered, a stay pending ACA International would be of indefinite duration, which weighs against issuance of a stay. Second, it is unclear what impact the D.C. Circuit’s decision would have on the issues raised in this matter and Defendant similarly fails to articulate the same. Though ACA International has the potential to clarify what constitutes an ATDS, and regardless of the authoritative weight of such a clarification, Defendant will still be required to produce discovery to settle the factual disputes regarding its autodialing technology. See, e.g., Glick, 2017 WL 786293 at *2; Lathrop, 2016 WL 97511, at *4 (“Even if the D.C. Circuit were to modify or vacate the 2015 FCC Order, factual disputes such as whether an ATDS was used and whether [ ] recipients provided their consent, will remain here.”); Richardson v. Verde Energy USA, Inc., No. CV 15-6325, 2016 WL 4478839, at *3 (E.D. Pa. Aug. 25, 2016) (“This action is not automatically over even if the ACA [International] outcome is favorable to the defendant. The impact the ACA decision might have on this case is limited only to the scope of the definition of an automatic telephone dialing system.”); Sliwa v. Bright House Networks, LLC, No. 16-CV-235-FTM-29 MRM, 2016 WL 3901378, at *4-5 (M.D. Fla. July 19, 2016) (“But, even if the D.C. Circuit’s decision is favorable for [the defendant] and the conclusions reached therein are binding on this Court, Plaintiff’s TCPA claim will proceed.”); see also Reichman v. Poshmark, Inc., No. 16-CV-2359-DMS, 2017 WL 436505, at *5 (S.D. Cal. Jan. 3, 2017) (“It would be unreasonable to require Plaintiff, without the benefit of discovery, to describe the technical details of Defendant’s alleged ATDS. Therefore, whether Defendant actually used an ATDS, i.e., equipment with the capacity to dial numbers without human intervention, is an issue that should be decided after discovery has been conducted.”). Moreover, the Court finds Defendant’s argument to this point unpersuasive because Plaintiff’s TCPA claims are not limited to Defendant’s use of an ATDS, but also concern Defendant’s use of an artificial or prerecorded voice system. See Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174-IEG RBB, 2013 WL 3776927, at *1 n.2 (S.D. Cal. July 16, 2013); Silwa, 2016 WL 3901378, at *4 (“[T]he appeal will not affect Plaintiff’s contention that Bright House called him using a prerecorded or automated voice, which is an independent basis for stating a claim under the TCPA.”). Thus, it is unclear whether the resolution of ACA International will have a direct impact on the issues before the Court, or substantially simplify the issues presented. See Leyva, 593 F.2d at 863-64. Even if the outcome was relevant to these proceedings and favorable to the Defendant, other issues would remain ripe for consideration, discovery, and resolution.