Schwyhart v. Amsher Collection Services, Inc.

Citations: 182 F. Supp. 3d 1239; 2016 U.S. Dist. LEXIS 56065; 2016 WL 1620096Docket: Case No. 2:15-cv-01175-JEO

Court: District Court, N.D. Alabama; April 22, 2016; Federal District Court

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Plaintiff Jordan Schwyhart has filed a lawsuit against AmSher Collection Services, Inc. for allegedly violating the Telephone Consumer Protection Act (TCPA) by using an automated dialing system to make multiple calls to his cellular phone without consent in May 2015. Schwyhart seeks to represent a class of individuals similarly affected. AmSher has requested a stay of the proceedings pending the outcome of ACA International et al. v. FCC, a case reviewing an FCC order that interprets key TCPA provisions, particularly concerning the definition of "called party" and liability for unintentional calls to reassigned numbers.

Schwyhart opposes the stay, while AmSher argues that the resolution of the issues in ACA International is critical to determining its liability. The TCPA specifies that calls to cellular numbers require prior express consent from the called party. AmSher contends it was trying to reach Jackie Elgin, who had consented to receive calls, and was unaware that her number had been reassigned to Schwyhart.

The court has broad discretion to grant or deny stays, guided by the need to manage its docket efficiently. The party requesting the stay must demonstrate its necessity. Ultimately, the court denies AmSher's motion to stay, indicating that the ongoing litigation will proceed without waiting for the appellate court's decision on the related FCC order.

A stay is not warranted due to two main reasons. First, AmSher's request for a stay is based on the uncertain outcome of an appeal in the D.C. Circuit regarding the FCC's interpretation of "called party." However, the Eleventh Circuit has already ruled that the “intended recipient” is not considered the “called party” under the TCPA, referencing cases such as Osorio v. State Farm and Breslow v. Wells Fargo Bank. This ruling establishes that the term “called party” refers to the subscriber of the cell phone service, thereby precluding a safe harbor for unintentionally calling the wrong party. 

Regardless of the D.C. Circuit's ruling, its decision will not affect this case since it would align with the existing Eleventh Circuit precedent. Even if the D.C. Circuit overturns the FCC Order, the Eleventh Circuit's Osorio decision remains binding, as it was not reliant on the FCC Order and the calls at issue occurred prior to its issuance. Further, the D.C. Circuit's decision would not be binding on this court. Other cases, such as Rodriguez v. DFS Services and O’Hanlon v. 24 Hour Fitness, support the position that the ongoing appeal does not affect the validity of the plaintiff's claims. Thus, proceeding with the case despite the FCC appeals is appropriate and would not prejudice the defendant.

The court denies AmSher's motion to stay proceedings despite the FCC Order being under appeal in the D.C. Circuit. The court finds that staying the case would lead to indefinite delays, hindering the plaintiff and the putative class from pursuing their rights. The appeals in ACA International involve multiple parties and broad challenges to the FCC’s ruling, which are not directly relevant to this case. The potential for further appeals to the Supreme Court could prolong the stay. The court emphasizes that stay orders that are immoderate or indefinite may be reversed. While the D.C. Circuit’s review of the FCC Order is highly deferential, the court asserts that proceedings should continue while allowing either party to reference the D.C. Circuit’s decision once it is rendered.