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Prater v. Medicredit Inc.

United States District Court, E.D. Missouri, Eastern Division

September 18, 2014

JOHN PRATER, on behalf of himself and others similarly-situated, Plaintiff,
v.
MEDICREDIT INC., et al., Defendants

For John Prater, on behalf of himself and others similarly situated, Plaintiff: Anthony E. LaCroix, LEAD ATTORNEY, LACROIX LAW FIRM, Kansas City, MO; Michael L. Greenwald, LEAD ATTORNEY, GREENWALD DAVIDSON PLLC, Boca Raton, FL.

For Medicredit, Inc., Defendant: Scott J. Dickenson, LEAD ATTORNEY, Matthew A. Jacober, Michael A. Clithero, LATHROP AND GAGE, LLP, Clayton, MO.

For The Outsource Group, Inc., Defendant: Scott J. Dickenson, LEAD ATTORNEY, James Redd, IV, Matthew A. Jacober, Michael A. Clithero, LATHROP AND GAGE, LLP, Clayton, MO.

For Intervenor ClearLight Partners, LLC, Intervenor: Christopher M. Garcia, Terese A. Drew, LEAD ATTORNEYS, HINSHAW AND CULBERTSON, LLP, St. Louis, MO.

Page 1039

MEMORANDUM AND ORDER

Noelle C. Collins, UNITED STATES MAGISTRATE JUDGE.

Before the court is the Motion to Stay filed by Defendants. (Doc. 28). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9). The matter is fully briefed and ready for disposition. For the following reasons, the Motion will be denied.

BACKGROUND

On January 28, 2014, Plaintiff filed a Class Action Complaint, pursuant to Fed.R.Civ.P. 23(a) and (b), for alleged violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.[1] (Doc. 1). The Complaint alleges that Medicredit, Inc., and The Outsource Group, Inc. (jointly, Defendants) acted together and " routinely violate[ed] 47 U.S.C. § 227(b)(1)(A)(iii)[2] by placing non-emergency telephone calls to the cellular telephones of consumers using an automatic telephone dialing system and/or an artificial or prerecorded voice, without the prior express consent of the consumers." (Doc. 1, ¶ ¶ 3, 9). The Complaint alleges that, commencing in March 2013, Medicredit placed calls to Plaintiff's cellular telephone and left a pre-recorded message, in an attempt to collect a debt from a third person, whom Plaintiff did not know; Plaintiff spoke with a representative of Medicredit and told the representative that he was not the third person and instructed the representative not to call him again; after Plaintiff spoke with Medicredit's representative, Medicredit, on numerous specified dates, placed calls to Plaintiff's cellular telephone and left a

Page 1040

pre-recorded message in an attempt to collect a debt from the third party; Defendants did not have Plaintiff's prior express consent to make any telephone calls to Plaintiff's cellular telephone; and " Defendants had knowledge that they were using, and intended to use, an automatic telephone dialing system [ATDS] to make and/or an artificial prerecorded voice to place the telephone calls identified [by Plaintiff]." (Doc. 1, ¶ ¶ 10-42).

Defendants have filed a motion to stay this matter pending decisions by the Federal Communications Commission (the FCC) on issues in two petitions which, Defendants claim, are both presently before the FCC and dispositive of the issues presently before the court. Defendants rely on the doctrine of " primary jurisdiction" in support of their Motion. Defendants argue, alternatively, that this court should exercise its " inherent authority to stay this case in order to avoid burdening both parties" and the court when the issues before the court " may be disposed of entirely by the FCC's imminent rulings." (Docs. 28 at 1-3, 29). Specifically, the issues which Defendants state are before the FCC on Petitions for Declaratory Ruling are:

(1) whether the TCPA applies to non-telemarking calling activity (i.e., calls made exclusively for debt collection purposes);
(2) whether equipment used to make telephone calls must have the current capacity to generate and dial random or sequential numbers in order to be deemed a prohibited automatic telephone dialing ...

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