United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on two discovery motions, Defendant's motion to stay this action, and the parties' joint motion to delay class certification. For the reasons stated herein, the court DENIES Defendant's motion to stay (Dkt. # 51), DENIES Defendant's motion for a protective order (Dkt. # 53), DENIES Defendants' motion to compel (Dkt. # 57), and DENIES the parties' joint motion (Dkt. # 65) to delay class certification. Plaintiffs must either file a motion for class certification that complies with this order or this case will not proceed as a class action.
II. BACKGROUND & ANALYSIS
The parties have repeatedly delayed progress in this action. They delayed discovery until the court ruled on a motion to dismiss. They delayed discovery in lieu of settlement negotiations that have now gone on for at least five months. They have repeatedly delayed addressing class certification. No one has addressed the merits of this case, and putting aside Defendant's ill-fated motion to dismiss, no one has addressed whether it may be certified as a class action. The court has expressed its dissatisfaction with the pace of this case. Today it does so again, and issues orders that should leave the parties with no question that they must either settle this case promptly or litigate it.
Briefly, this case concerns whether Defendant Receivables Performance Management, LLC ("RPM") violated the Telephone Consumer Protection Act ("TCPA"). Plaintiffs, two people who received debt collection calls from RPM, contend that RPM used what the TCPA calls an "automatic telephone dialing system" (hereinafter "autodialer") to call them on their cellular phones in an effort to collect a debt. See 47 U.S.C. § 227(a)(1) (defining autodialer); 47 U.S.C. § 227(b)(1)(A)(iii) (prohibiting use of autodialer to call cellular telephones). Plaintiffs hope to represent a nationwide class of similarly situated people.
A. The Court Will Not Stay This Case Pending Various FCC Decisions.
This case had been pending for sixteen months when RPM filed its motion to stay this case pending the outcome of various proceedings before the Federal Communications Commission ("FCC"). One is a rulemaking petition that a debt collection consortium filed in January 2014. The others are four petitions for declaratory rulings as to various questions arising under the TCPA.
The rulemaking petition is no basis for staying this case. It is one thing to hope that the FCC will issue new rules that favor debt collectors like RPM. It is another to hope that the FCC will impose those rules retroactively, such that they would eliminate whatever liability RPM faces for its past practices. See Aderhold v. Car2go N.A., LLC, No. 13-489RAJ, 2014 U.S. Dist. LEXIS 26320, at *21-23 & n.4 (W.D. Wash. Feb. 27, 2014) (declining to address impact of new FCC rules that did not apply to defendant's past conduct). There is no reason to believe that new FCC rules will have any impact on this case, except to the extent that Plaintiffs seek classwide injunctive relief.
The declaratory relief petitions are also no basis for staying this case. First, two of the four proceedings to which RPM points predate this case, another was filed just a few months later, and the fourth was filed in late October 2013. That RPM did not mention any of these proceedings until it filed its motion to stay in March 2014 suggests either that RPM's belief that these proceedings are a basis to stay this case is of remarkably recent vintage or that RPM seeks a stay for the primary purpose of delaying the resolution of this case. Second, the FCC's decision to issue any ruling on these requests is a matter of discretion. The court will not stay this case while it awaits rulings that may never come. Third, even if the FCC were to issue declaratory rulings that interpret the TCPA in a manner that favors RPM's position in this case, the law would not necessarily require the court to defer to those rulings.
Finally, the court observes that all four of the declaratory relief petitions that RPM points to are focused on which devices or technologies are autodialers within the meaning of the TCPA. That is a merits question, and one that RPM has so far avoided. Nothing has prevented RPM from filing a motion to dismiss or motion for summary judgment seeking a ruling that it does not use an autodialer within the meaning of the TCPA. RPM seems to prefer to rely on FCC rulings that may never come rather than its own effort to demonstrate that it does not use an autodialer. The court does not share that preference.
B. Discovery Motions
The parties' discovery motions revolve around the same issue: whether Plaintiffs are entitled to documents that establish both whose cellular phones RPM called during the putative class period (which, according to Plaintiffs, stretches back to November 2008) and from whom RPM obtained those cellular phone numbers. RPM uses third party "skip-trace" vendors to obtain cellular phone numbers for the debtors it targets. Plaintiffs issued subpoenas to four of those vendors, seeking deposition testimony as well as documents revealing not only which cellular phone numbers each vendor provided to RPM, but the vendor's business relationship with RPM. Plaintiffs also requested documents directly from RPM that show all of the phone numbers it obtained from these four vendors. Plaintiffs admit that their subpoenas might be unnecessary if RPM provides the records they requested. In addition, Plaintiffs have requested a list of every outgoing call RPM placed during the class period.
The court considers the subpoenas first. They are the subject of RPM's discovery motion, in which it asks the court to either quash or modify the subpoenas or issue a protective order. As to RPM's request to quash or modify the subpoenas, the court could not grant that request even if there were reason to. Plaintiffs served four subpoenas on out-of-state entities, demanding depositions to take place in states other than Washington. Plaintiffs purported to issue those subpoenas, however, from this District. Assuming Plaintiffs properly served the subpoenas, their targets would have no obligation to respond. See Fed.R.Civ.P. 45(a)(2)(B) (requiring that a subpoena issue from the district where a deposition is to occur). Because this court has no power to compel these out-of-state targets to comply with these subpoenas, it would not quash or modify them. Putting aside that the subpoenas are facially invalid, RPM has not demonstrated that it has standing to challenge subpoenas to these third parties. ...