No Shepard’s Signal™
As of: October 15, 2017 2:25 PM Z
San Pedro-Salcedo v. Haagen-Dazs Shoppe Co.
United States District Court for the Northern District of California, San Jose Division
October 11, 2017, Decided; October 11, 2017, Filed
Case No. 5:17-cv-03504-EJD
Reporter
2017 U.S. Dist. LEXIS 168532 *
MELANIE G. SAN PEDRO-SALCEDO, Plaintiff, v. THE
HAAGEN-DAZS SHOPPE COMPANY, INC., et al.,
Defendants.
Core Terms
advertisement, telemarketing, allegations, Rewards,
message, telephone, constitutes, motion to dismiss,
telephone number, introduces, Download
Counsel: [*1] For Melanie G. San Pedro-Salcedo,
individually, and on behalf of all others similarly situated,
Plaintiff: Abigail Ameri Zelenski, David Zelenski, Michael
Joe Jaurigue, Ryan A Stubbe, Sehreen Ladak, LEAD
ATTORNEYS, Jaurigue Law Group, Glendale, CA.
For The Haagen-Dazs Shoppe Company, Inc., a New
Jersey corporation, Defendant: Geoffrey W. Castello,
LEAD ATTORNEY, PRO HAC VICE, Kelley Drye and
Warren LLP, Parsippany, NJ; Lauri Anne Mazzuchetti,
LEAD ATTORNEY, PRO HAC VICE, Kelley Drye
Warren LLP, Parsippany, NJ; Miles Cooley, Kelley Drye
Warren LLP, Los Angeles, Ca.
For Nestle Dreyer's Ice Cream Company a Delaware
corporation Nestle USA, Inc. a Delaware corporation
Defendants Geoffrey W. Castello, LEAD ATTORNEY,
PRO HAC VICE, Kelley Drye and Warren LLP,
Parsippany, NJ; Miles Cooley, Kelley Drye Warren LLP,
Los Angeles, Ca.
Judges: EDWARD J. DAVILA, United States District
Judge.
Opinion by: EDWARD J. DAVILA
Opinion
ORDER DENYING DEFENDANTS' MOTION TO
DISMISS OR IN THE ALTERNATIVE TO STAY
ACTION
Re: Dkt. No. 14
I. INTRODUCTION
This is a purported class action suit for violation of the
Telephone Consumer Protection Act, 47 U.S.C. §227
("TCPA") predicated upon Plaintiff Melanie G. San
Pedro Salcedo's receipt of a text message for which
she [*2] did not give prior written consent which stated:
"Thank you for joining Häagen-Dazs Rewards!
Download our app here:." See Complaint, ¶14.
Defendants Häagen-Dazs Shoppe Company, Inc.,
Nestlé Dreyer's Ice Cream Company, and Nestlé USA,
Inc. (collectively "Defendants") move to dismiss
Plaintiff's complaint pursuant to Rule 12(b)(6),
Fed.R.Civ.P., or in the alternative, to stay the action
pending the decision of the D.C. Circuit Court of
Appeals in ACA International v. FCC, et al., No. 15-
1211. For the reasons set forth below, Defendants'
motion to dismiss or in the alternative to stay action is
DENIED.
II. BACKGROUND
In April of 2017, Plaintiff visited a Häagen-Dazs store in
San Jose, California. See Complaint, ¶13. The Häagen-
Dazs cashier orally asked Plaintiff if she would like to
enroll in a rewards program for discounts on future
purchases. Id. The cashier asked for Plaintiff's
telephone number, which Plaintiff provided orally. Id.
The same day, Plaintiff received a text message from
Defendants on her cellular telephone stating: "Thank
you for joining Häagen-Dazs Rewards! Download our
app here:." Id. at ¶14. The "app" can be used to locate
Häagen-Dazs stores, to place orders online, and to get
offers and coupons. [*3] Id. at ¶15. Plaintiff alleges on
information and belief that her cellular-telephone
number was entered into a database and that
Defendants used equipment capable of storing and/or
producing telephone numbers and capable of dialing
As of: October 15, 2017 2:25 PM Z
San Pedro-Salcedo v. Haagen-Dazs Shoppe Co.
United States District Court for the Northern District of California, San Jose Division
October 11, 2017, Decided; October 11, 2017, Filed
Case No. 5:17-cv-03504-EJD
Reporter
2017 U.S. Dist. LEXIS 168532 *
MELANIE G. SAN PEDRO-SALCEDO, Plaintiff, v. THE
HAAGEN-DAZS SHOPPE COMPANY, INC., et al.,
Defendants.
Core Terms
advertisement, telemarketing, allegations, Rewards,
message, telephone, constitutes, motion to dismiss,
telephone number, introduces, Download
Counsel: [*1] For Melanie G. San Pedro-Salcedo,
individually, and on behalf of all others similarly situated,
Plaintiff: Abigail Ameri Zelenski, David Zelenski, Michael
Joe Jaurigue, Ryan A Stubbe, Sehreen Ladak, LEAD
ATTORNEYS, Jaurigue Law Group, Glendale, CA.
For The Haagen-Dazs Shoppe Company, Inc., a New
Jersey corporation, Defendant: Geoffrey W. Castello,
LEAD ATTORNEY, PRO HAC VICE, Kelley Drye and
Warren LLP, Parsippany, NJ; Lauri Anne Mazzuchetti,
LEAD ATTORNEY, PRO HAC VICE, Kelley Drye
Warren LLP, Parsippany, NJ; Miles Cooley, Kelley Drye
Warren LLP, Los Angeles, Ca.
For Nestle Dreyer's Ice Cream Company a Delaware
corporation Nestle USA, Inc. a Delaware corporation
Defendants Geoffrey W. Castello, LEAD ATTORNEY,
PRO HAC VICE, Kelley Drye and Warren LLP,
Parsippany, NJ; Miles Cooley, Kelley Drye Warren LLP,
Los Angeles, Ca.
Judges: EDWARD J. DAVILA, United States District
Judge.
Opinion by: EDWARD J. DAVILA
Opinion
ORDER DENYING DEFENDANTS' MOTION TO
DISMISS OR IN THE ALTERNATIVE TO STAY
ACTION
Re: Dkt. No. 14
I. INTRODUCTION
This is a purported class action suit for violation of the
Telephone Consumer Protection Act, 47 U.S.C. §227
("TCPA") predicated upon Plaintiff Melanie G. San
Pedro Salcedo's receipt of a text message for which
she [*2] did not give prior written consent which stated:
"Thank you for joining Häagen-Dazs Rewards!
Download our app here:." See Complaint, ¶14.
Defendants Häagen-Dazs Shoppe Company, Inc.,
Nestlé Dreyer's Ice Cream Company, and Nestlé USA,
Inc. (collectively "Defendants") move to dismiss
Plaintiff's complaint pursuant to Rule 12(b)(6),
Fed.R.Civ.P., or in the alternative, to stay the action
pending the decision of the D.C. Circuit Court of
Appeals in ACA International v. FCC, et al., No. 15-
1211. For the reasons set forth below, Defendants'
motion to dismiss or in the alternative to stay action is
DENIED.
II. BACKGROUND
In April of 2017, Plaintiff visited a Häagen-Dazs store in
San Jose, California. See Complaint, ¶13. The Häagen-
Dazs cashier orally asked Plaintiff if she would like to
enroll in a rewards program for discounts on future
purchases. Id. The cashier asked for Plaintiff's
telephone number, which Plaintiff provided orally. Id.
The same day, Plaintiff received a text message from
Defendants on her cellular telephone stating: "Thank
you for joining Häagen-Dazs Rewards! Download our
app here:." Id. at ¶14. The "app" can be used to locate
Häagen-Dazs stores, to place orders online, and to get
offers and coupons. [*3] Id. at ¶15. Plaintiff alleges on
information and belief that her cellular-telephone
number was entered into a database and that
Defendants used equipment capable of storing and/or
producing telephone numbers and capable of dialing
Page 2 of 3
such numbers to send the text to her. Id. at ¶20.
Plaintiff alleges that the text constitutes a telemarketing
or advertising message sent without prior express
written consent, and therefore it violates the TCPA.
Plaintiff seeks to represent a class comprised of "[a]ll
persons throughout the United States who, since
October 16, 2013, received at least one text message
from Defendants on their cellular telephones." Plaintiff
seeks $500 in statutory damages for each text message
the class received, treble damages for Defendants'
alleged willful and knowing violation of the TCPA,
injunctive relief, and interest, attorney's fees and costs
of suit, to the extent allowable by law.
III. STANDARDS
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests
the legal sufficiency of claims alleged in the complaint.
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). When deciding whether to grant a
motion to dismiss, the court must generally accept as
true all "well-pleaded factual allegations." Ashcroft v.
Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 173 L. Ed. 2d
868 (2009). The court must also construe the alleged
facts in the [*4] light most favorable to the plaintiff. See
Retail Prop. Trust v. United Bhd. of Carpenters &
Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)
(providing the court must "draw all reasonable
inferences in favor of the nonmoving party" for a Rule
12(b)(6) motion). Dismissal "is proper only where there
is no cognizable legal theory or an absence of sufficient
facts alleged to support a cognizable legal theory."
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
IV. DISCUSSION
Section 227(b)(1)(A)(iii) of the TCPA makes it unlawful
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 . . . cellular
telephone . . . ." 47 U.S.C. §227(b)(1)(A)(iii). The level of
consent required to remove a call from the scope of
Section 227(b)(1)(A)(iii) depends on the character of the
call. Daniel v. Five Stars Loyalty, Inc., No. 15-cv-3546-
WHO, 2015 U.S. Dist. LEXIS 159007, 2015 WL
7454260, at *3 (N.D. Cal. Nov. 24, 2015). A text or call
that "includes or introduces an advertisement or
constitutes telemarketing" may be sent with the
recipients "prior express written consent." 47 C.F.R.
§64.1200(a)(2) (2013). In contrast, a text or call that
does not include or introduce an advertisement or
constitute telemarketing may be sent with "prior express
consent." 47 C.F.R. §64.1200(a)(1) (2013).
The central issue in this case is whether the text
"includes or introduces an advertisement [*5] or
constitutes telemarketing." If the text "includes or
introduces an advertisement or constitutes
telemarketing," and was sent using any automatic
telephone dialing system ("ATDS"), Plaintiff has
adequately alleged a violation of the TCPA.
A. Allegations re Advertising or Telemarketing
The TCPA regulations define "advertisement" as "any
material advertising the commercial availability or quality
of any product, goods, or services" and "telemarketing"
as "the initiation of a . . . message for the purpose of
encouraging the purchase or rental of, or investment in,
property, goods or services . . . ." 47 C.F.R.
§64.1200(f)(1) and (12). Defendants contend that the
text is not advertising or telemarketing because it does
not encourage Plaintiff to purchase property, goods or
services. Plaintiff argues that the text advertises the
commercial availability of a service, namely Defendants'
app, and therefore the text constitutes advertising within
the meaning of the TCPA. Plaintiff reasons that the app
itself is one of Defendants' products, and that by
explicitly including a link to download that app, they are
advertising the app's commercial availability.
In Five Stars, the plaintiff received a similar text after
speaking [*6] to a cashier about defendant's rewards
program and providing his telephone number: "Welcome
to Five Stars, the rewards program of Flame Broiler.
Reply with your email to finish registering and get free
pts! Txt STOP to unsubscribe." Id., 2015 U.S. Dist.
LEXIS 159007, [WL] at *1. The Five Stars court held
that the text did not include or introduce an
advertisement and did not constitute telemarketing. Id.,
2015 U.S. Dist. LEXIS 159007, [WL] at *5. Similarly, in
Aderhold v. Car2go N.S., LLC, No. 13-cv-00489, 2014
U.S. Dist. LEXIS 26320, 2014 WL 794802, at *1 (W.D.
Wash. Feb. 27, 2014), the plaintiff received a text from
Car2go, a car-sharing service stating: "Please enter
your car2go activation code 145858 into the emailed
link. We look forward to welcoming you to car2go." The
Car2go court found that the text was sent for the limited
purpose of permitting plaintiff to complete his
registration, and therefore did not violate the TCPA.
Unlike Five Stars, the text at issue does not instruct
Plaintiff to take any action to "finish registering." Instead,
2017 U.S. Dist. LEXIS 168532, *3
such numbers to send the text to her. Id. at ¶20.
Plaintiff alleges that the text constitutes a telemarketing
or advertising message sent without prior express
written consent, and therefore it violates the TCPA.
Plaintiff seeks to represent a class comprised of "[a]ll
persons throughout the United States who, since
October 16, 2013, received at least one text message
from Defendants on their cellular telephones." Plaintiff
seeks $500 in statutory damages for each text message
the class received, treble damages for Defendants'
alleged willful and knowing violation of the TCPA,
injunctive relief, and interest, attorney's fees and costs
of suit, to the extent allowable by law.
III. STANDARDS
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests
the legal sufficiency of claims alleged in the complaint.
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). When deciding whether to grant a
motion to dismiss, the court must generally accept as
true all "well-pleaded factual allegations." Ashcroft v.
Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 173 L. Ed. 2d
868 (2009). The court must also construe the alleged
facts in the [*4] light most favorable to the plaintiff. See
Retail Prop. Trust v. United Bhd. of Carpenters &
Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014)
(providing the court must "draw all reasonable
inferences in favor of the nonmoving party" for a Rule
12(b)(6) motion). Dismissal "is proper only where there
is no cognizable legal theory or an absence of sufficient
facts alleged to support a cognizable legal theory."
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
IV. DISCUSSION
Section 227(b)(1)(A)(iii) of the TCPA makes it unlawful
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 . . . cellular
telephone . . . ." 47 U.S.C. §227(b)(1)(A)(iii). The level of
consent required to remove a call from the scope of
Section 227(b)(1)(A)(iii) depends on the character of the
call. Daniel v. Five Stars Loyalty, Inc., No. 15-cv-3546-
WHO, 2015 U.S. Dist. LEXIS 159007, 2015 WL
7454260, at *3 (N.D. Cal. Nov. 24, 2015). A text or call
that "includes or introduces an advertisement or
constitutes telemarketing" may be sent with the
recipients "prior express written consent." 47 C.F.R.
§64.1200(a)(2) (2013). In contrast, a text or call that
does not include or introduce an advertisement or
constitute telemarketing may be sent with "prior express
consent." 47 C.F.R. §64.1200(a)(1) (2013).
The central issue in this case is whether the text
"includes or introduces an advertisement [*5] or
constitutes telemarketing." If the text "includes or
introduces an advertisement or constitutes
telemarketing," and was sent using any automatic
telephone dialing system ("ATDS"), Plaintiff has
adequately alleged a violation of the TCPA.
A. Allegations re Advertising or Telemarketing
The TCPA regulations define "advertisement" as "any
material advertising the commercial availability or quality
of any product, goods, or services" and "telemarketing"
as "the initiation of a . . . message for the purpose of
encouraging the purchase or rental of, or investment in,
property, goods or services . . . ." 47 C.F.R.
§64.1200(f)(1) and (12). Defendants contend that the
text is not advertising or telemarketing because it does
not encourage Plaintiff to purchase property, goods or
services. Plaintiff argues that the text advertises the
commercial availability of a service, namely Defendants'
app, and therefore the text constitutes advertising within
the meaning of the TCPA. Plaintiff reasons that the app
itself is one of Defendants' products, and that by
explicitly including a link to download that app, they are
advertising the app's commercial availability.
In Five Stars, the plaintiff received a similar text after
speaking [*6] to a cashier about defendant's rewards
program and providing his telephone number: "Welcome
to Five Stars, the rewards program of Flame Broiler.
Reply with your email to finish registering and get free
pts! Txt STOP to unsubscribe." Id., 2015 U.S. Dist.
LEXIS 159007, [WL] at *1. The Five Stars court held
that the text did not include or introduce an
advertisement and did not constitute telemarketing. Id.,
2015 U.S. Dist. LEXIS 159007, [WL] at *5. Similarly, in
Aderhold v. Car2go N.S., LLC, No. 13-cv-00489, 2014
U.S. Dist. LEXIS 26320, 2014 WL 794802, at *1 (W.D.
Wash. Feb. 27, 2014), the plaintiff received a text from
Car2go, a car-sharing service stating: "Please enter
your car2go activation code 145858 into the emailed
link. We look forward to welcoming you to car2go." The
Car2go court found that the text was sent for the limited
purpose of permitting plaintiff to complete his
registration, and therefore did not violate the TCPA.
Unlike Five Stars, the text at issue does not instruct
Plaintiff to take any action to "finish registering." Instead,
2017 U.S. Dist. LEXIS 168532, *3
Page 3 of 3
the text reads, "[t]hank you for joining Häagen-Dazs
Rewards!," which suggests that Plaintiff had already
joined Häagen-Dazs Rewards before Defendants sent
the text. The text in Car2go instructed the recipient to
use the link to complete registration, and is therefore
also distinguishable from the text Plaintiff [*7] received
from Defendants. If the registration for Häagen-Dazs
Rewards was completed before the receipt of the text
and without the need to download Defendants' app, then
Defendants' message to "Download our app here,"
arguably constitutes an advertisement for the
commercial availability of Defendants' app. Construing
the alleged facts in the light most favorable to Plaintiff,
the Court finds Plaintiff's allegations sufficient at the
pleading stage.
B. Allegations re ATDS
Plaintiff alleges on information and belief that her
cellular-telephone number was entered into a database
and that Defendants used equipment capable of storing
and/or producing telephone numbers and capable of
dialing such numbers to send the text to her. Id. at ¶20.
These allegations are sufficient at the pleading stage
given the content of the message and the context in
which it was received. But c.f. Priester v.
eDegreeAdvisor, LLC, No. 15-cv-04218, 2017 U.S. Dist.
LEXIS 157961, 2017 WL 4237008 (N.D. Cal. Sept. 25,
2017) (generically alleging use of ATDS by defendant in
a manner that parrots statutory language insufficient to
support TCPA claim because telephone calls at issue
could have just as easily been placed manually).
C. Motion to Stay
"A District Court has 'broad discretion to [*8] stay
proceedings as an incident to its power to control its
own docket.'" Brickman v. Facebook, Inc., No. 16-cv-
00751, 2017 U.S. Dist. LEXIS 64343, 2017 WL
1508719, at *4 (N.D. Cal. Apr. 27, 2017) (citing Clinton
v. Jones, 520 U.S. 681, 706-07, 117 S. Ct. 1636, 137 L.
Ed. 2d 945 (1997)). When considering whether to grant
a stay of proceedings, courts must consider three
factors: (1) "the orderly course of justice measured in
terms of the simplifying or complicating of issues, proof,
and questions of law which could be expected to result
from a stay"; (2) the hardship or inequity which a party
may suffer in being required to go forward; and (3) the
possible damage which may result from granting a stay.
Id.
Defendants seek a stay pending the D.C. Circuit's ruling
in ACA International where the definition of an ATDS is
at issue. Defendants urge this court to follow the lead of
numerous district courts, including courts in the
Northern District of California, that have entered stays
pending disposition of ACA International. This Court,
however, disagrees that a stay is justified. Without
knowing what type of technology Defendants used to
send Plaintiff the text, it is unclear whether the decision
in ACA International will be dispositive of this case or
even narrow the issues. Furthermore, regardless of the
outcome of ACA International, it is [*9] likely that
Defendants will be required to produce discovery to
settle any factual disputes regarding their technology.
See Glick v. Performant Financial Corp., No. 16-cv-
5461, 2017 U.S. Dist. LEXIS 28373, 2017 WL 786293,
at *2 (N.D. Cal. Feb. 27, 2017) (citing Lathrop v. Uber
Techs., Inc., No. 14-cv-5678, 2016 U.S. Dist. LEXIS
2490, 2016 WL 97511, at *4 (N.D. Cal. Jan. 8, 2016)
("[A]lthough the decision in ACA International may
vacate portions of the 2015 FCC Order, discovery in this
case will be required regardless of the outcome in that
one."). In addition, although a decision from the D.C.
Circuit may be issued shortly, there may be further
appeals. It is impossible to forecast when a final, binding
decision in ACA International will be rendered. In the
meantime, delaying this case would prejudice Plaintiff.
The passage of time will make it more difficult to reach
class members and will increase the likelihood that
evidence will dissipate. In contrast, Defendants have not
established that they will suffer hardship or inequity if
required to proceed with this litigation. "[B]eing required
to defend a suit, without more, does not constitute a
'clear case of hardship or inequity'. . . ." Glick, 2017 U.S.
Dist. LEXIS 28373, [WL] at *2 (quoting Lockyer v. Mirant
Corp., 398 F.3d 1098, 1112 (9th Cir. 2005)).
V. CONCLUSION
For the reasons set forth above, Defendants' motion to
dismiss or in the alternative to stay the action is
DENIED.
IT IS SO ORDERED.
Dated: [*10] October 11, 2017
/s/ Edward J. Davila
EDWARD J. DAVILA
United States District Judge
End of Document
2017 U.S. Dist. LEXIS 168532, *6
the text reads, "[t]hank you for joining Häagen-Dazs
Rewards!," which suggests that Plaintiff had already
joined Häagen-Dazs Rewards before Defendants sent
the text. The text in Car2go instructed the recipient to
use the link to complete registration, and is therefore
also distinguishable from the text Plaintiff [*7] received
from Defendants. If the registration for Häagen-Dazs
Rewards was completed before the receipt of the text
and without the need to download Defendants' app, then
Defendants' message to "Download our app here,"
arguably constitutes an advertisement for the
commercial availability of Defendants' app. Construing
the alleged facts in the light most favorable to Plaintiff,
the Court finds Plaintiff's allegations sufficient at the
pleading stage.
B. Allegations re ATDS
Plaintiff alleges on information and belief that her
cellular-telephone number was entered into a database
and that Defendants used equipment capable of storing
and/or producing telephone numbers and capable of
dialing such numbers to send the text to her. Id. at ¶20.
These allegations are sufficient at the pleading stage
given the content of the message and the context in
which it was received. But c.f. Priester v.
eDegreeAdvisor, LLC, No. 15-cv-04218, 2017 U.S. Dist.
LEXIS 157961, 2017 WL 4237008 (N.D. Cal. Sept. 25,
2017) (generically alleging use of ATDS by defendant in
a manner that parrots statutory language insufficient to
support TCPA claim because telephone calls at issue
could have just as easily been placed manually).
C. Motion to Stay
"A District Court has 'broad discretion to [*8] stay
proceedings as an incident to its power to control its
own docket.'" Brickman v. Facebook, Inc., No. 16-cv-
00751, 2017 U.S. Dist. LEXIS 64343, 2017 WL
1508719, at *4 (N.D. Cal. Apr. 27, 2017) (citing Clinton
v. Jones, 520 U.S. 681, 706-07, 117 S. Ct. 1636, 137 L.
Ed. 2d 945 (1997)). When considering whether to grant
a stay of proceedings, courts must consider three
factors: (1) "the orderly course of justice measured in
terms of the simplifying or complicating of issues, proof,
and questions of law which could be expected to result
from a stay"; (2) the hardship or inequity which a party
may suffer in being required to go forward; and (3) the
possible damage which may result from granting a stay.
Id.
Defendants seek a stay pending the D.C. Circuit's ruling
in ACA International where the definition of an ATDS is
at issue. Defendants urge this court to follow the lead of
numerous district courts, including courts in the
Northern District of California, that have entered stays
pending disposition of ACA International. This Court,
however, disagrees that a stay is justified. Without
knowing what type of technology Defendants used to
send Plaintiff the text, it is unclear whether the decision
in ACA International will be dispositive of this case or
even narrow the issues. Furthermore, regardless of the
outcome of ACA International, it is [*9] likely that
Defendants will be required to produce discovery to
settle any factual disputes regarding their technology.
See Glick v. Performant Financial Corp., No. 16-cv-
5461, 2017 U.S. Dist. LEXIS 28373, 2017 WL 786293,
at *2 (N.D. Cal. Feb. 27, 2017) (citing Lathrop v. Uber
Techs., Inc., No. 14-cv-5678, 2016 U.S. Dist. LEXIS
2490, 2016 WL 97511, at *4 (N.D. Cal. Jan. 8, 2016)
("[A]lthough the decision in ACA International may
vacate portions of the 2015 FCC Order, discovery in this
case will be required regardless of the outcome in that
one."). In addition, although a decision from the D.C.
Circuit may be issued shortly, there may be further
appeals. It is impossible to forecast when a final, binding
decision in ACA International will be rendered. In the
meantime, delaying this case would prejudice Plaintiff.
The passage of time will make it more difficult to reach
class members and will increase the likelihood that
evidence will dissipate. In contrast, Defendants have not
established that they will suffer hardship or inequity if
required to proceed with this litigation. "[B]eing required
to defend a suit, without more, does not constitute a
'clear case of hardship or inequity'. . . ." Glick, 2017 U.S.
Dist. LEXIS 28373, [WL] at *2 (quoting Lockyer v. Mirant
Corp., 398 F.3d 1098, 1112 (9th Cir. 2005)).
V. CONCLUSION
For the reasons set forth above, Defendants' motion to
dismiss or in the alternative to stay the action is
DENIED.
IT IS SO ORDERED.
Dated: [*10] October 11, 2017
/s/ Edward J. Davila
EDWARD J. DAVILA
United States District Judge
End of Document
2017 U.S. Dist. LEXIS 168532, *6