IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS, 

EASTERN DIVISION 

CHARLES C. PATTERSON, on behalf ) 

of himself and all others similarly situated, ) 

 ) 

Plaintiff, ) 12-cv-1061 

 ) 

v. ) Chief Judge Holderman 

 ) 

CAPITAL MANAGEMENT ) Magistrate Judge Finnegan 

SERVICES, L.P. AND CAPITAL ONE ) 

BANK (USA), N.A., ) 

 ) 

Defendants. ) JURY DEMAND 

 

JOINT MOTION BY DEFENDANTS TO STAY PROCEEDINGS 

PLEASE TAKE NOTICE that defendants Capital One Bank (USA), N.A. (“Capital 

One”) and Capital Management Services, L.P. (“CMS”), by and through their undersigned 

counsel, Move to Stay Proceedings, including discovery, pending a decision by the Judicial 

Panel on Multidistrict Litigation (“JPML”) on Capital One Bank (USA), N.A.’s Motion to 

Transfer for Coordinated or Consolidated Pretrial Proceedings Under 28 U.S.C. § 1407. 

In further support of its motion, Capital One states the following: 

I. Introduction 

Courts commonly enter brief stays of proceedings pending an MDL determination, and a 

stay is necessary and appropriate in this case to conserve judicial and private resources that will 

otherwise have to be spent on discovery motions and class-certification briefing. 

Capital One filed a petition for MDL status on October 3, 2012, seeking coordinated 

treatment of 33 Telephone Consumer Protection Act (“TCPA”) actions that are pending in 

eleven federal courts across the country. The JPML has recently granted MDL status to two 

similar groups of TCPA actions. See In re Portfolio Recovery Assocs., LLC, Telephone 

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2 

Consumer Protection Act Litig., 846 F. Supp. 2d 1380, 1381 (J.P.M.L. 2011); In re Midland 

Credit Mgmt., Inc., Telephone Consumer Protection Act Litig., 818 F. Supp. 2d 1377, 1377-78 

(J.P.M.L. 2011). Capital One has asked the JPML to assign the MDL proceedings to the 

Northern District of Illinois, the Honorable Joan H. Lefkow, presiding, which is where the firstfiled putative class action is docketed. See Martin, et al. v. Leading Edge Recovery Solutions, 

LLC, et al., No. 1:11-cv-05886 (N.D. Ill.). The plaintiffs in Martin are opposing that assignment, 

as indicated by their recent motion to transfer Martin to the Western District of Washington, 

where the third-filed putative class action is docketed, making it uncertain which court will be 

appointed. Pending the JPML’s decision, Capital One is seeking stays of proceedings in all 33 

cases to preserve judicial and private resources. 

Plaintiff in this case responded to Capital One’s MDL petition by filing a motion for class 

certification two days later—a gambit that underscores the importance of entering a stay of 

proceedings. A stay will meet the goals of MDL treatment and is appropriate in this case for 

several reasons. First, this Court can preserve scarce judicial resources by declining to address 

matters that may later be redone or undone in an MDL proceeding. Second, a stay will protect 

Capital One from having to spend its resources addressing duplicative matters that can be 

addressed more efficiently in the MDL, once for all cases. Finally, a brief stay will not prejudice 

the substantial rights of the plaintiff in this case. Capital One was added to this case less than 

eight months ago, and there is no danger that memories will be degraded or evidence lost in the 

short time before MDL proceedings can begin. If the Court agrees that a brief stay is appropriate, 

defendants respectfully request that it enter a stay promptly. Discovery against Capital One is 

underway, but it is in the early stages. Entering a stay in advance of the pending discovery 

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3 

against Capital One will preserve both judicial and private resources, consistent with the purpose 

of the MDL mechanism. 

II. Facts 

This is one of three pending putative class actions filed against Capital One in federal 

courts involving allegations under the Telephone Consumer Protection Act (“TCPA”).1

 The 

other two pending putative class actions are in the Northern District of Illinois and the Western 

District of Washington, respectively.2

 In addition, thirty individual actions alleging TCPA 

violations are pending in nine other federal district courts against Capital One. With the 

exception of one individual case, all of the putative class actions and individual actions were 

filed against Capital One within the past ten months. 

On October 3, 2012, Capital One moved to transfer these 33 “Scheduled Actions” into an 

MDL under 28 U.S.C. § 1407. See Hunter Decl. ¶ 5, Ex. A. The JPML has recently held—

twice—that petitions seeking to consolidate the same type of TCPA cases satisfied the MDL 

standard. See In re Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 846 F. 

Supp. 2d 1380, 1381 (J.P.M.L. 2011); In re Midland Credit Mgmt., Inc., Tel. Consumer Prot. Act 

 

1

 Capital One was sued in a fourth putative class action asserting a nationwide class on August 7, 

2012, in the Northern District of California. Alarcon v. Capital One Bank (USA) N.A., et al., Civ. 

No. 3:12-cv-4145 (N.D. Cal.) The Plaintiff in Alarcon is a resident of California and pleaded no 

facts suggesting that jurisdiction would be proper elsewhere. But shortly after Capital One 

informed counsel in Martin that it intended to file the petition to transfer all related cases to 

Judge Lefkow in the Northern District of Illinois—and the day Capital One’s Answer was due 

(October 1, 2012)—the Alarcon plaintiff voluntarily dismissed this case without prejudice. 

Hunter Decl. ¶ 10. Counsel in the Amadeck action has since indicated to Capital One that it 

intends to attempt to add the Alarcon plaintiff to the action pending in the Western District of 

Washington, which would be consistent with Martin’s counsel’s attempt to transfer to that 

jurisdiction and, presumably, to create a “critical mass” of class actions in that forum. Hunter 

Decl. ¶ 10. 

2 See Martin, et al. v. Leading Edge Recovery Solutions, LLC, et al., No. 1:11-cv-05886 (N.D. 

Ill.); Amadeck, et al. v. Capital One Fin. Corp., et al., No. 2:12-cv-00244-RSL (W.D. Wash.). 

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Litig., 818 F. Supp. 2d 1377, 1377-78 (J.P.M.L. 2011). Capital One expects that the MDL 

Motion will be heard by the JPML on November 29, 2012, in Dallas, Texas, and is in the process 

of filing motions to stay in each of the Scheduled Actions pending a decision by the JPML. 

Hunter Decl. ¶ 7. 

In its MDL petition, Capital One asked the JPML to assign the 33 Scheduled Actions to 

the Northern District of Illinois for MDL proceedings, before Judge Lefkow. Ex. A at 2, 14-15. 

Capital One made this request because Martin was the first-filed case against Capital One in this 

district and because Judge Lefkow’s MDL docket was substantially shorter than this Court’s. 

Only one case is pending in the Western District of Washington. Of course, the JPML has the 

discretion to assign the Scheduled Actions to any judge or judges. 28 U.S.C. § 1407(b). Counsel 

in the Martin action has told Capital One that he is collaborating with counsel in Amadeck and 

that his clients intend to oppose Capital One’s MDL petition. Hunter Decl. ¶ 9. The Martin 

plaintiffs established that they do not want to litigate this case in the Northern District of 

Illinois—whether as an individual case or as part of an MDL—by filing a motion to transfer 

Martin to the Western District of Washington.3

 Dkt. No. 107-08. It is possible that plaintiffs in 

the other 32 Scheduled Actions will also ask to have the MDL assigned to a different court. 

On October 4, 2012, counsel for Capital One appeared before Judge Lefkow in the 

Martin action for a presentment regarding the Martin plaintiffs’ motion to transfer. During that 

hearing, counsel for Capital One indicated that it intended to file motions to stay every 

Scheduled Action. Hunter Decl. ¶ 8. The next day, October 5, 2012, the plaintiff in this case filed 

a motion for class certification. Dkts. 61-63; Hunter Decl. ¶ 8. 

The three pending putative class actions are in the early stages of discovery. Hunter Decl. 

¶ 3. No discovery motions have been filed or heard with regard to Capital One, other than 

 

3

 The Court summarily denied this motion on October 4, 2012. Dkt. 109. 

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preemptive motions for protective orders filed by defendants in the Martin case, and no 

depositions have been taken. Hunter Decl. ¶ 3. In this case, Plaintiff has served written discovery 

on Capital One, and Capital One has objected and responded. Hunter Decl. ¶ 4. Capital One has 

also served limited documents, with further document production expected. Hunter Decl. ¶ 4. 

III. Argument 

A district court has the inherent power to stay its proceedings. Rivers v. Walt Disney, Co., 

980 F. Supp. 1358, 1360 (C.D. Cal. 1997). “[T]he power to stay proceedings is incidental to the 

power inherent in every court to control the disposition of the causes on its docket with economy 

of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 

254, 57 S. Ct. 163, 166 (1936); see also Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 

863 (9th Cir. 1979) (“A trial court may, with propriety, find it is efficient for its own docket and 

the fairest course for the parties to enter a stay of an action before it, pending resolution of 

independent proceedings which bear upon the case.”). Courts often use this power to stay 

proceedings pending transfer decisions by the JPML. See, e.g., Ill. Mut. Ret. Fund v. Citigroup, 

Inc., 391 F.3d 844, 852 (7th Cir. 2004) (noting that “some district courts stay proceedings during 

the interim following a conditional transfer order”); Mailblocks, Inc. v. Spam Arrest, LLC, No. 

CV03-0077, 2003 WL 22319080, at *2 (W.D. Wash. June 9, 2003) (Coughenour, C.J.) 

(“Litigation should be stayed to permit the MDL Panel to decide a motion to consolidate if the 

stay would achieve gains in judicial economy and consistency that outweigh the prejudice the 

parties would suffer from the delay.”); Fuller v. Amerigas Propane, Inc., Nos. C09-2493, 09-

2616, 2009 WL 2390358, at *2 (N.D. Cal. Aug. 3, 2009) (granting motion to stay); Rivers, 980 

F. Supp. at 1362 (“[I]t appears that a majority of courts have concluded that it is often 

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appropriate to stay preliminary pretrial proceedings while a motion to transfer and consolidate is 

pending with the MDL Panel.”). 

Courts consider three factors in determining whether to stay proceedings pending JPML 

transfer decisions: (1) the judicial resources that would be saved by avoiding duplicative 

litigation if the cases are in fact consolidated; (2) if a stay would prejudice the non-moving party; 

and (3) any hardship and inequity to the moving party if the action is not stayed. See Rivers, 980 

F. Supp. at 1360; see also Fuller, 2009 WL 2390358, at *1; Terkel v. AT & T, Inc., Nos. 06 C 

2837, 06 C 2680, 2006 WL 1663456, at *1 (N.D. Ill. June 9, 2006) (Kennelly, J.); Bd. of Tr. 

Teachers’ Ret. Sys. of Ill. v. WorldCom, Inc., 244 F. Supp. 2d 900, 905 (N.D. Ill. 2002) 

(Gottschall, J.). Here, a stay best serves judicial interests of economy and efficiency by 

preventing unnecessary pretrial proceedings and minimizing the possibility of conflicting 

discovery and merits rulings. 

A. Granting Capital One’s motion to stay will conserve judicial resources. 

A court considering whether to stay proceedings pending a decision by the JPML on a 

motion to transfer first looks to whether the stay will conserve judicial resources and serve the 

interests of judicial economy and efficiency. See, e.g., Rivers, 980 F. Supp. at 1360. Courts place 

heavy weight on the concern for judicial efficiency when determining whether to stay 

proceedings pending JPML decisions. See Rivers, 980 F. Supp. at 1361 (motion to stay granted 

because it furthers interests of judicial economy and efficiency); WorldCom, 244 F. Supp. 2d at 

905 (“Judicial economy favors a stay.”). 

If proceedings are not stayed pending the JPML’s decision, this Court may expend 

judicial resources ruling on pretrial motions, including class certification, despite the significant 

possibility that this case, and others, will be transferred to another court for consolidated pretrial 

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proceedings, including ruling on class certification. See, e.g., In re Charlotte Russe, Inc., Fair 

and Accurate Credit Transactions Act (FACTA) Litig., 505 F. Supp. 2d 1377, 1378 (J.P.M.L. 

2007) (“Centralization will . . . prevent inconsistent pretrial rulings, especially with respect to 

class certification . . . .”). After transfer, the transferee court may modify rulings made by the 

transferor judge. See, e.g., Rivers, 980 F. Supp. at 1361 (noting that decisions regarding class 

“certification could be for naught if this action is transferred to another court and that court 

modifies or vacates any of this Court’s orders”); In re Exterior Siding & Aluminum Coil Litig., 

538 F. Supp. 45, 47 (D. Minn. 1982) (“It is clear from [28 U.S.C. § 1407] itself that class 

certification determinations are to be resolved by the transferee court free from the influence of 

any initial determinations of transferor courts.”); In re Upjohn Co. Antibiotic Cleocin Prod. Liab. 

Litig., 81 F.R.D. 482, 486-87 (E.D. Mich. 1979) (noting that transferee court may vacate or 

modify orders entered by transferor court). 

Plaintiff sued Capital One and CMS less than eight months ago, and there is no danger 

that memories will be degraded or evidence lost in the short time before MDL proceedings can 

begin. Plaintiff has served written discovery on Capital One, and Capital One has objected and 

responded. Hunter Decl. ¶ 4. Capital One has also served limited documents, with further 

document production expected. Hunter Decl. ¶ 4. Capital One has not served discovery on 

Plaintiff. CMS has served discovery requests on Plaintiff, who has produced only negligible 

documents. Hunter Decl. ¶ 4. No discovery motions regarding Capital One’s discovery responses 

have been filed or heard and no depositions have been taken. Hunter Decl. ¶ 3. Significantly, on 

October 4, 2012, counsel for Capital One appeared before Judge Lefkow in the Martin action for 

a presentment regarding the Martin plaintiffs’ motion to transfer to the Western District of 

Washington. During that hearing, counsel for Capital One indicated that it intended to file 

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motions to stay every Scheduled Action. Hunter Decl. ¶ 8. The very next day, October 5, 2012—

and without any notice to Capital One—the plaintiff in this case filed a motion for class 

certification. Dkts. 61-63; Hunter Decl. ¶ 8. Plaintiff’s motion underscores the importance of 

issuing a stay in this case—and the other 32 Scheduled Actions. Without a stay, the Court will 

have to spend significant time and energy ruling on discovery motions, setting a discovery 

schedule, setting a class-certification schedule, and possibly deciding class certification. 

Determining the best process for conducting discovery and class-certification briefing in the 

Scheduled Actions should be handled by the court the JPML assigns the MDL rather than by 

individual courts issuing rulings during the pendency of the MDL petition—which may be 

contradictory and which certainly will use judicial resources inefficiently. 

Briefly staying proceedings would avoid unnecessary action by this Court and would 

eliminate the possibility that inconsistent pretrial rulings will be issued in this and other 

jurisdictions before consolidation. Thus, to ensure judicial resources are used efficiently and 

economically, this Court should grant the defendants’ motion to briefly stay proceedings, 

including discovery. 

B. Plaintiff will not be prejudiced by a brief stay of proceedings. 

A court examining a motion to stay proceedings also looks at whether a plaintiff will 

suffer prejudice from a brief stay pending a decision by the JPML. See, e.g., Rivers, 980 F. Supp. 

at 1360. In general, a non-moving party will suffer “no meaningful prejudice,” because “any 

delay caused by this stay will be of very short duration, and unlikely to cause the degradation of 

memories or the loss of material evidence.” Fuller, 2009 WL 2390358, at *1. 

That is true here. A decision by the JPML is likely to come within four months or less. 

Any alleged prejudice running from a brief delay in discovery pending the MDL Panel’s decision 

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is minimal. See, e.g., Nielsen v. Merck & Co., No. C07-00076, 2007 WL 806510, at *2 (N.D. 

Cal. March 1, 2007) (concluding that deferring resolution of jurisdictional questions does not 

harm nonmoving party as questions will be resolved after short delay pending JPML decision); 

WorldCom, 244 F. Supp. 2d at 906 (“[W]hile delay is always regrettable, the Funds fail to 

explain how delay in this case will substantially affect their rights.”); American Seafood, Inc., v. 

Magnolia Processing, Inc., Nos. 92-1030, 92-1086, 1992 WL 102762, at *1 (E.D. Pa. May 7, 

1992) (“The plaintiffs will not be substantially prejudiced by staying this action pending the 

decision of the JPML.”). 

In addition, any minimal prejudice resulting from a delay is greatly outweighed by the 

interests against costly duplicative discovery—which will be borne, in part, by plaintiff—and in 

favor of judicial economy, which are also the motivating factors for consolidating cases through 

multidistrict litigation. See, e.g., Rivers, 980 F. Supp. at 1362 n.5 (“[E]ven if a temporary stay 

could be characterized as a delay that would be prejudicial to Defendant, there are still 

considerations of judicial economy that outweigh any prejudice to Defendant.”); American 

Seafood, 1992 WL 102762, at *2 (“[A]ny prejudice to the plaintiffs is clearly outweighed by the 

considerations of judicial economy and possible prejudice to the defendants.”); see also In re 

Global Crossing Ltd. Sec. & “ERISA” Litig., 223 F. Supp. 2d 1384, 1385 (J.P.M.L. 2005) 

(“Centralization under Section 1407 is necessary in order to eliminate duplicative discovery, 

prevent inconsistent pretrial rulings (especially with respect to questions of class certification), 

and conserve the resources of the parties, their counsel and the judiciary.”); Waitt v. Merck & 

Co., Inc., No. C05-0759L, 2005 WL 1799740, at *3 (W.D. Wash. July 27, 2005) (Lasnik, C.J.) 

(denying motion to stay but noting that if case had common factual allegations with pending 

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MDL “the Court would likely stay the present proceedings pending a transfer decision by the 

JPML”). 

Plaintiff has just moved for class certification and seeks a briefing schedule that could be 

undone by rulings by the MDL court assigned the Scheduled Actions—which will waste 

plaintiff’s resources as well as Capital One’s. 

Plaintiffs in the Martin action have conceded that coordinated proceedings are the best 

route, having argued in their motion to transfer that transfer to the Western District of 

Washington would “further interests of justice by reducing the multiplicity of litigation, 

conserving judicial resources, and avoiding inconsistent results.” Dkt. 107 at 6. Thus, plaintiffs 

in Martin—who are coordinating with counsel in Amadeck—have acknowledged that they will 

not be prejudiced by coordinated proceedings. See Hunter Decl. ¶ 9. The same is true in this 

case. 

C. Capital One will suffer hardship if this action is not stayed. 

Finally, a court deciding a motion to briefly stay a case pending a decision by the JPML 

on a motion to transfer looks to whether the moving party will suffer hardship if the action is not 

stayed. See Rivers, 980 F. Supp. at 1360. As courts have recognized, “litigating essentially the 

same claims in courts all over the country is no doubt burdensome.” WorldCom, 244 F. Supp. 2d 

at 904 (granting motion to stay pending the JPML decision based in part on the similar claims 

nationwide). 

That very reason—the burden of continuing to litigate in numerous jurisdictions around 

the country—weighs in favor of a brief stay here. Without a stay, Capital One will likely face 

duplicative costs litigating discovery and class-certification motions, negotiating with counsel, 

and responding to discovery over the next few months—duplication that is contrary to the 

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purpose of the MDL mechanism. Capital One may also face contradictory discovery orders that 

ultimately are inconsistent with the view of the MDL court assigned. 

Capital One requested consolidated or coordinated pretrial proceedings in 33 actions 

alleging TCPA claims that it is currently defending, including three putative class actions. As 

courts have recognized, “there is some hardship associated with the effort required to conduct 

discovery in multiple cases that may be rendered pointless or redundant by the decision of the 

MDL panel.” Fuller, 2009 WL 2390358, at *1; see also Nielsen, 2007 WL 806510, at *2

(“[Defendant] would suffer prejudice from being forced to litigate the same . . . issues in multiple 

forums.”). 

IV. CONCLUSION 

A stay of proceedings, pending a decision by the JPML on Capital One’s MDL Motion, 

will conserve judicial resources and will not prejudice the plaintiff, who will be able to pursue 

discovery upon a decision by the JPML in only a few months. Capital One will be harmed if a 

brief stay is not granted, as it will have to continue to engage in duplicative discovery, pretrial 

proceedings, and class-certification briefing, which defeats the purpose of the proposed MDL. 

WHEREFORE, for the above reasons, Capital One and CMS respectfully request that 

this Court stay proceedings, including discovery, while Capital One Bank (USA), N.A.’s Motion 

to Transfer for Coordinated or Consolidated Pretrial Proceedings Under 28 U.S.C. § 1407 is 

pending before the Judicial Panel on Multidistrict Litigation. 

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Dated: October 5, 2012 Respectfully submitted, 

CAPITAL MANAGEMENT SERVICES, L.P. 

/s/ Daniel Pisani (with consent) 

Daniel W. Pisani 

James K. Schultz 

Sessions, Fishman, Nathan & Israel, LLC 

55 West Monroe St., Suite 1120 

Chicago, IL 60603 

Tel.: (312) 578-0900 

Fax: (312) 578-0991 

dpisani@sessions-law.biz 

jschultz@sessions-law.biz 

CAPITAL ONE BANK (USA), N.A. 

/s/ Ernest Summers III 

Aaron D. Van Oort (MN No. 315539) 

Eileen M. Hunter (MN No. 0336336) 

Erin L. Hoffman (MN No. 0387835) 

Faegre Baker Daniels LLP 

2200 Wells Fargo Center 

90 South Seventh Street 

Minneapolis, MN 55402 

Tel.: (612) 766-7000 

Fax: (612) 766-1600 

aaron.vanoort@FaegreBD.com 

eileen.hunter@FaegreBD.com 

erin.hoffman@FaegreBD.com 

Ernest Summers III (No. 3126432) 

Trina K. Taylor (No. 6297760) 

Faegre Baker Daniels LLP 

311 South Wacker Drive 

Suite 4400 

Chicago, Illinois 60606 

Tel.: (312) 212-6500 

Tax: (312) 212-6501 

ernie.summers@FaegreBD.com 

trina.taylor@FaegreBD.com 

 

FB_US 9246391v4

 

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CERTIFICATE OF SERVICE

I hereby certify that on October 5, 2012, I electronically filed the foregoing document 

with the Clerk of Court using the CM/ECF system which will send notification of such filing to 

all parties of record. 

 

 /s/ Ernest Summers III 

BDDB01 9492060v1

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