In Trujillo v. Free Energy Sav. Co., No. 5:19-cv-02072-MCS-SP, 2020 U.S. Dist. LEXIS 205113, at *4-7 (C.D. Cal. Nov. 2, 2020), Judge Scarci denied a request to stay a pending TCPA matter.
The first factor weighs against granting a stay. Fact discovery is set to conclude in about six weeks, expert discovery is set to conclude in April 2021, and the case is set for trial in August 2021. Although a decision in Duguid is expected this term, the Court cannot prognosticate when the decision will be issued. A stay of proceedings inexorably would delay the litigation of this case, which increases the risk of prejudice. See Blue Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 2007) (“Delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale.” (internal quotation marks omitted)). Moreover, staying class discovery on Plaintiff’s DNC claim, which does not turn on the definition of ATDS, would introduce an entirely unnecessary delay given that Duguid will have no effect on the litigation of the claim. Defendant argues that staying class discovery on the DNC claim would not harm Plaintiff because the claim lacks merit. (Mot. 9.) The question of the claim’s merit is not properly before the Court on this motion. The second factor only weakly weighs in favor of a stay. Defendant argues that, absent a stay, it will have to “invest substantial resources” to litigate the action. (Mot. 12-14.) Although the contours of discovery and disputed issues in this case may change based on the outcome of Duguid, the Court is unconvinced that the ATDS claim and all class discovery, including class discovery for the DNC claim, should be stayed for that reason alone. “[B]eing required to defend a suit, without more, does not constitute a ‘clear case of hardship or inequity’ within the meaning of Landis.” Lockyer, 398 F.3d at 1112. The final factor weighs against granting a stay. First, unless and until a decision is rendered in Duguid, Ninth Circuit precedent binds this Court to the interpretation that an ATDS need not have the capacity to use a random or sequential number generator. Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018). Although the Court acknowledges the possibility that Duguid could adopt the alternative interpretation, Ninth Circuit law provides clear goalposts for the litigation of the ATDS claim. Second, assuming the Supreme Court declines to adopt the Ninth Circuit’s interpretation, the Duguid decision may not have any impact on the ATDS claim. Plaintiff pleads that Defendant’s device has the capacity to produce numbers using a random or sequential number generator. (Compl. ¶ 17.) A decision in Duguid would [*6] clarify only whether a device that does not have such capacity is an ATDS; in other words, if the evidence proves Plaintiff’s allegation true, the claim would not be affected by Duguid. Defendant submits a declaration by its president averring without elaboration that its software does not have the capacity to generate random or sequential numbers, and thus is the type of device at issue in Duguid. (ECF No. 40-1 ¶ 9.) On this motion, the Court declines to weigh Plaintiff’s allegations against Defendant’s unsubstantiated declaration, and instead reasons that further discovery may uncover evidence aligning with the pleaded allegations. Plaintiff would be entitled to conduct discovery on Defendant’s device even if the Supreme Court ultimately were to issue a decision adopting the alternative interpretation of the ATDS definition. Allowing discovery relevant to the ATDS claim to conclude may prove equally or more useful in simplifying the claim’s disputed issues than a stay would. Finally, a decision in Duguid would not have any impact on Plaintiff’s DNC claim. A stay of class discovery on the DNC claim would complicate litigation of that claim by effectively bifurcating class discovery from individual discovery.