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Loebenstein v. Chase Bank

United States District Court, D. New Jersey

July 22, 2015

ESTHER LOEBENSTEIN, Plaintiff,
v.
CHASE BANK, Defendant.

MEMORANDUM OPINION AND ORDER

DOUGLAS E. ARPERT, Magistrate Judge.

This matter comes before the Court on a Motion by Defendant Chase Bank ("Defendant" or "Chase") to stay this action until the Federal Communications Commission (the "FCC") issues opinions on certain pending Petitions which Defendant contends will decide an issue central to this action. See Dkt. No. 9. Plaintiff opposes Defendant's Motion. See Dkt. No. 10. For the reasons set forth below, Defendant's Motion to stay this action is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff's Complaint was filed on February 2, 2015 and alleges that Defendant violated the Telephone Consumer Protection Act ("TCPA"). See Dkt. No. 1. Plaintiff claims that over a four year period, Defendant called and sent "at least several dozen" text messages to her cellular telephone via an automatic telephone dialing system ("ATDS"). Id. at ΒΆ 7. Specifically, Plaintiff alleges that Chase sent "numerous" text messages to her cellular phone providing account information, such as balance and transaction details, related to a Chase bank account that did not belong to her. Dkt. No. 10 at p. 7. According to Plaintiff, these calls and texts were made without her permission and were intended for the third party owner of the Chase account. Id.

Defendant contends that Plaintiff's allegations describe "wrong party calls", which can arise when a company obtains the telephone number at issue from one of its customers who, after providing the number to the company, and unbeknownst to the company, ceases use of the telephone number. See Dkt. No. 9. The telephone carrier, again unbeknownst to the company, then re-assigns the number to another person who receives the wrong party calls. Id.

Defendant seeks a stay largely on the grounds of primary jurisdiction, citing several Petitions that have since been addressed by the FCC. Defendant asserts that an FCC order regarding the petitions could "have substantial, if not dispositive, impact on this litigation." Dkt. No. 9. In opposition, Plaintiff contends that primary jurisdiction, and deferral to the FCC, is not necessary to decide any issues in this case. See Dkt No. 10. Plaintiff further contends that awaiting an FCC decision could unduly delay resolution of the action, and that any FCC decision may not impact this action at all. See Dkt. No. 10.

II. LEGAL STANDARD

A. The Doctrine of Primary Jurisdiction

The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts but "enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body." United States v. W. P. R.R. Co., 352 U.S. 59, 64 (1956). "[I]n such a case the judicial process is suspended pending referral of such issues to the administrative body for its views." Id. Courts have invoked the primary jurisdiction doctrine "to advance regulatory uniformity, " "to answer a question... within the agency's discretion, " and "to benefit from technical or policy considerations within the agency's... expertise." Charvat v. EchoStar Satellite, LLC, 630 F.3d 459, 466 (6th Cir. 2010) (invoking primary jurisdiction doctrine in TCPA case) (internal quotation marks omitted); Richmond Bros. Records, Inc. v. U.S. Spring Communications, Co., 953 F.2d 1431, 1435 (3d. Cir. 1991) (primary jurisdiction particularly appropriate where "the issue involves technical questions of fact uniquely within the expertise and experience of the agency").

Importantly, "[n]o fixed formula exists for applying the doctrine...." United States v. W. P. R.R. Co., 352 U.S. 59, 64 (1956). However, the Third Circuit has articulated four factors useful in determining whether a court should abstain on the basis of primary jurisdiction. Those factors are:

(1) Whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency's particular field of expertise;
(2) Whether the question at issue is particularly within the agency's discretion;
(3) Whether there exists a substantial danger of ...

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