In Rodriguez v. DFS Services, LLC, 2016 WL 369052, at *2-3 (M.D.Fla., 2016), Judge Moody issued a short stay based on the SCOTUS deciding Spokeo, but said that he would not await the outcome of the TCPA proceedings in D.C.
Here, the allegations of injury are likewise sparse, if present at all, even though Rodriguez’s complaint does seek actual damages. Compare Dkt. 1, p. 2; with Fed. R. Civ. Proc. 8(a)(2). And although Discover answered without challenging Rodriguez’s complaint, see Fed. R. Civ. Proc. 12(b) (requiring that motions to dismiss for failure to state a claim be filed before the answer), a Supreme Court reversal in Spokeo will require Rodriguez to establish that she suffered actual damages for the Court to exercise jurisdiction over the case. Even if she could succeed on this point, a Spokeo reversal will nonetheless have a significant impact on her entitlement to damages. These possible effects on the case, the Court finds, are substantial. . . .The Supreme Court heard oral argument in Spokeo on November 2, 2015. Accordingly, a stay until the Court issues its opinion will be of a definite duration. The opinion will provide clarity on questions of this Court’s jurisdiction over Rodriguez’s TCPA claim and the scope of damages available to her. A short stay to await this clarity is in the interest of judicial economy, and the Court will grant a temporary stay on these grounds. III. ACA International et al. v. FCC & USA. The appeal before the D.C. Circuit, however, does not warrant a stay. There, the court will review the FCC Order, which supplies a definition of “automatic telephone dialing system” and instructs that consumers may revoke consent to be called by “any reasonable method” that “clearly expresses a desire not to receive further messages.” 30 FCC Rcd. at 7966. Discover correctly notes that the FCC Order has “the force of law” and abrogates prior FCC Orders and case law on point. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1121 (11th Cir. 2014). The motion fails to note, however, that the FCC Order’s purpose was to “[s]trengthen the core protections of the TCPA” and that, accordingly, the Order expanded the definition of “automatic telephone dialing system” and the interpretation of what constitutes revocation of consent. Compare 30 FCC Rcd. 7961; with 27 FCC Rcd. 1830. As to revocation, the new order makes clear: “Consumers have a right to revoke consent, using any reasonable method including orally or in writing.” 30 FCC Rcd. at 7966. This right to revoke consent orally was, importantly, the law in the Eleventh Circuit under a previous FCC Order. See 27 FCC Rcd. 1830; Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1256 (11th Cir. 2014) (concluding that plaintiff was “free to orally revoke consent previously given to [Defendant]… in connection with [Plaintiff’s] credit-card debt”). The challenges before the D.C. Circuit will therefore have no effect on the viability of Rodriguez’s lawsuit as pled in her complaint. Per the Hobbs Act, 28 U.S.C. § 2342, the D.C. Circuit will have the power, should it decide to do so on the merits, “to enjoin, set aside, suspend (in whole or in part), or [ ] determine the validity of…[the FCC Order].” If the FCC Order survives the challenge, Rodriguez’s oral revocation will have had legal effect under the Order’s “force of law.” Mais, 768 F.3d at 1121. If the FCC Order does not survive, Rodriguez’s oral revocation will have had the same legal effect, only under Eleventh Circuit precedent. Osorio, 746 F.3d at 1256. A stay under these conditions does not promote judicial economy.