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Riazi v. Ally Financial, Inc.

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

September 26, 2017

ELAINE RIAZI, Plaintiff,
v.
ALLY FINANCIAL, INC., Defendant.

          MEMORANDUM AND ORDER.

          JEAN C. HAMILTON UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Ally Financial Inc.'s Motion to Stay. (ECF 14). The Motion is fully briefed and ready for disposition.

         BACKGROUND

         On June 16, 2017, Plaintiff Elaine Riazi filed a Complaint against Defendant Ally Financial, Inc., (Ally) based on the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. (ECF 1).

         Riazi's Complaint alleges that Ally made over two hundred phone calls to her cellular phone, without her consent, by using an automatic telephone dialing system (ATDS), in violation of the TCPA. (ECF 1). Specifically, Riazi alleges: Ally placed calls to her cellular telephone; the calls were not for emergency purposes; the calls were to collect payments on an alleged debt; Ally placed these calls by using ATDS; Riazi withdrew any prior express consent for Ally to use an ATDS to call her cell phone; on June 29, 2016, Riazi instructed Ally to stop calling her cell phone; since that date, Ally called Riazi's cell phone approximately two hundred times; Riazi also received numerous text messages from Ally; Riazi received numerous voicemails from Ally where she heard beeps or silence on the other end of the line; Ally used an ATDS to place these calls and texts; and Ally placed these calls voluntarily and of its own free will. (ECF 1, ¶¶ 7-29).

         In the pending Motion, Ally asks the Court to stay this matter pending a decision by the D.C. Circuit Court of Appeals in the matter of ACA International v. Federal Communications Commission (FCC), Case No. 15-1211 (ACA Appeal). The ACA Appeal challenges the FCC's July 2015 Declaratory Ruling and Order, In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961 (July 10, 2015) (the 2015 FCC Order). According to Ally, the two issues before the D.C. Circuit are as follows:

(1) Whether equipment constitutes an ATDS if it merely has the potential to randomly or sequentially generate telephone numbers to be dialed; and
(2) Whether the FCC unilaterally imposed an unworkable regime for handling revocation of consent by ruling that any revocation, whether verbal or written, would be sufficient so long as it was “reasonable” under the circumstances.

(ECF 15 at 3).

         LEGAL FRAMEWORK

         As relevant, the TCPA, 47 U.S.C. § 227(b)(1), provides:

         It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States -

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice…
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;

         To prove a defendant violated the TCPA, § 227(b)(1)(A), a plaintiff must establish that: (1) the defendant called his or her cell phone; (2) defendant did so using an ATDS or an artificial or prerecorded voice; and (3) defendant did so without the plaintiff's prior express consent. Wright v. Target Corp., 2015 WL 8751582, at *4 (D. Minn. Dec. 14, 2015) (unreported) (citing Me ...


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