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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

LANCE BILBERRY § 

§ 

 Plaintiff, § 

§ 

vs. § 

§ 

Civil Action No. 1:20-cv-00470 

JPMORGAN CHASE BANK, N.A. 

 Defendant.

§ 

§ 

§ 

JPMORGAN CHASE BANK’S MOTION TO STAY OR, IN THE ALTERNATIVE, 

CONTINUANCE OF REMAINING DEADLINES FOR SEVEN MONTHS AND 

CONTINUANCE OF TRIAL SETTING 

Defendant, JPMorgan Chase Bank, N.A. (“JPMC” or “Defendant”), moves this Court to 

stay this action pending a decision by the United States Supreme Court in Facebook, Inc. v. Duguid

(No. 19-511). In the alternative, since oral argument in the Facebook case was heard on December 

8. 2020, Defendant requests that this Court continue all remaining deadlines in this matter for 

seven months to allow the high Court to issue its ruling. The Facebook case will address the 

critical issue of: “Whether the definition of ATDS in the TCPA encompasses any device that 

can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a 

random or sequential number generator.’” See Petition for a Writ of Certiorari, Facebook, Inc. 

v. Duguid, No. 19-631 (U.S. Oct. 17, 2019); see also Certiorari—Summary Dispositions, 

Facebook, Inc. v. Duguid, No. 19-511 (U.S. July 9, 2020). This Court should issue the requested 

stay under its own inherent power to control these proceedings. 

 JPMC’s counsel has conferred with Plaintiff’s counsel in an effort to reach a resolution, 

but the parties have thus far been unable to reach an agreement. As a result, JPMC files this Motion 

to Stay. 

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I. INTRODUCTION

 Defendant moves this Court to stay this action pending a decision by the United States 

Supreme Court in Facebook, Inc. v. Duguid (No. 19-511) (“Facebook”). The ruling in Facebook

will have a profound impact on the viability of the claims asserted by plaintiff Lance Bilberry 

(“Plaintiff”) under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”). 

Although Chase intends to file a Motion for Summary Judgment because it has no record that Mr. 

Bilberry ever revoked consent, such a Motion may be unnecessary depending upon the Supreme 

Court’s decision in Facebook. 

 On December 8, 2020, the Supreme Court heard the oral argument in Facebook which 

should resolve the significant circuit split on what constitutes an “automatic telephone dialing 

system” or “ATDS”. The issue before the Supreme Court in Facebook is pivotal to Plaintiff’s 

claims here—and to TCPA litigation nationwide—because making a call with an ATDS or using 

a pre-recorded or artificial voice is a requisite element of the claim. 47 U.S.C. § 227(b)(1). 

 The TCPA defines an ATDS as equipment “which has the capacity ... to store or produce 

telephone numbers to be called, using a random or sequential number generator[.]” 47 U.S.C. § 

227(a)(1)(A) (emphasis added). The Ninth Circuit’s decisions in Facebook and Marks v. Crunch 

San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), directly contravene the decisions of the Third, 

Seventh and Eleventh Circuit Courts of Appeals, which held the TCPA only applies to devices 

which utilize random and sequential number generators as required by the statute. The Fifth 

Circuit has not ruled on this issue. In this regard, Facebook challenges the Ninth Circuit’s broad 

interpretation of ATDS, which was recently adopted by the Second Circuit Court of Appeals. If 

the Supreme Court resolves the circuit split by relying on the statutory definition of an ATDS, and 

not the interpretations offered by the Ninth and Second Circuits, then the scope of Plaintiff’s TCPA 

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claim will be substantially narrowed—to artificial or pre-recorded voice calls only because Chase 

does not use a random or sequential number generator to make calls. 

 This Court has broad discretion to stay all proceedings where the resolution of other 

litigation will “narrow the issues in the pending cases and assist in the determination of the 

questions of law involved.” Landis v. N. Am. Co., 299 U.S. 248, 253 (1936). This case presents 

the ideal situation for application of Landis. 

 Indeed, a stay of this action will serve the orderly administration of justice and allowing 

Plaintiff to proceed will prejudice JPMC and this Court. Since the Supreme Court heard oral 

argument in Facebook on December 8, 2020, a decision should be forthcoming. Plaintiff does not 

allege that any calls are continuing, thus Plaintiff will not be harmed by a relatively brief stay. The 

current Motion for Summary Judgment deadline in this matter is February 5, 2021, and the trial is 

set for May 3, 2021. 

 Accordingly, JPMC respectfully requests that this Court stay the action in its entirety until 

the Supreme Court decides Facebook; or, in the alternative, continue all unexpired deadlines in 

the matter for seven months to allow for said ruling to be issued so the parties can rely on the 

forthcoming Supreme Court decision in making decisions how to proceed. 

II. BACKGROUND 

A. Plaintiff’s Claims Hinge on the Alleged Use of an ATDS. 

 According to the Complaint, Plaintiff alleges that “Defendant initiated automated calls to 

Plaintiff using an automatic telephone dialing system and/or artificial or pre-recorded voice” (Doc 

No. 1, ¶ 23, Complaint (emphasis added)). Plaintiff alleges that after he requested that JPMC stop 

calling him, Defendant caused “repeated telephone calls to be made by an automatic telephone 

dialing system to the cell phone number of Plaintiff [which] constitutes multiple violations of the 

TCPA.” (Id., ¶ 23, Complaint (emphasis added)). Based on these conclusory allegations, Plaintiff 

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asserts causes of action against JPMC for violations of the TCPA. (Id. at ¶¶ 22-31). 

B. The Supreme Court Will Determine What Constitutes an ATDS. 

 On December 8, 2020, the Supreme Court heard oral argument in Facebook regarding the 

definition of an ATDS. The question presented in Facebook is as follows: “Whether the definition 

of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone 

numbers, even if the device does not ‘us[e] a random or sequential number generator.’” See

Petition for a Writ of Certiorari, Facebook, Inc. v. Duguid, No. 19-631 (U.S. Oct. 17, 2019); see 

also Certiorari—Summary Dispositions, Facebook, Inc. v. Duguid, No. 19-511 (U.S. July 9, 2020). 

 The question of what is an ATDS is a critical one for this case and for all TCPA litigation. 

When the TCPA was enacted, Congress sought to remedy the use of call blasting technology, 

through which telemarketers would generate millions of calls to randomly-selected numbers, or 

numbers called in sequence. Because calls were placed to randomly and sequentially generated 

numbers, calls were placed to individuals as well as telephone lines used by police, firefighters 

and hospitals. See Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 1307-08 (11th Cir. 

2020). As such, Congress defined the equipment subject to the TCPA as equipment “which has 

the capacity ... to store or produce telephone numbers to be called, using a random or sequential 

number generator[.]” 47 U.S.C. § 227(a)(1)(A) (emphasis added). 

 Clearly, when businesses attempt to call their customers, they do not randomly or 

sequentially generate the phone numbers to be called. Accordingly, businesses like JPMC, which 

are attempting to reach their specific customers, do not use the equipment Congress sought to 

regulate. Glasser, 948 F.3d at 1309. Three circuit courts have held that the TCPA simply does not 

reach the equipment used by businesses to call their own customers (like that used by JPMC to 

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call Plaintiff). See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 466-67 (7th Cir. 2020)1; Glasser, 

948 F.3d at 1308-09; Dominguez v. Yahoo, Inc., 894 F.3d 116, 118-20 (3d Cir. 2018). Instead, 

these courts held that, to be an ATDS, the equipment must randomly or sequentially generate 

numbers as the TCPA expressly states. Gadelhak, 950 F.3d at 460; see also Glasser, 948 F.3d at 

1308-1312 (to be an ATDS, a system must call to “randomly or sequentially generated numbers”); 

Dominguez, 894 F.3d at 121 (manual input of numbers takes calls outside scope of TCPA, even if 

system had “latent capacity” for automatic dialing).2

 In Marks, the Ninth Circuit expressly recognized that the TCPA was enacted to regulate 

randomly and sequentially generated calls. See Marks, 904 F.3d at 1051 (“Although Congress 

focused on regulating the use of equipment that dialed blocks of sequential or randomly generated 

numbers—a common technology at that time...”). However, the Ninth Circuit concluded that an 

ATDS also included equipment “that made automatic calls from lists of recipients[.]” Id. This 

interpretation, which requires only that an ATDS be able to automatically dial from a list—a 

definition that includes within its scope nearly every telephone, including smart phones—does not 

require that a system utilize “a random or sequential number generator” to constitute an ATDS. Id. 

at 1043. 

 

1

 The Gadelhak opinion was authored by Justice Barrett. 

2 The Federal Communications Commission (“FCC”) previously had issued a rule broadly interpreting the 

term ATDS, but this rule was struck down as overbroad and contrary to the statutory text. ACA Int’l v. FCC, 

885 F.3d 687, 697-99 (D.C. Cir. 2018) (“Commission’s expansive understanding of ‘capacity’ in the TCPA 

is incompatible with a statute grounded in concerns about hundreds of thousands of ‘solicitors’ making 

‘telemarketing’ calls[.]”). On June 25, 2020, the FCC issued a declaratory ruling providing guidance on the 

ATDS question, noting the “fact that a calling platform or other equipment is used to make calls or send 

texts to a large volume of telephone numbers is not probative of whether that equipment constitutes an 

autodialer under the TCPA.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. 

Act of 1991 P2p All. Petition for Clarification, No. CG02-278, 2020 WL 3511100 (F.C.C. June 25, 2020). 

While the “details of the [FCC]’s interpretation of the autodialer definition remains pending in the wake 

of” ACA Int’l, id., at *1 n.2, the FCC’s recent guidance departs from the rule struck down by ACA Int’l, and 

suggests the FCC may favor a narrower interpretation than it previously adopted. 

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Prior to the Second Circuit’s recent decision in Duran v. La Boom Disco Inc., 955 F.3d 279 

(2d Cir. 2020), and the Sixth Circuit’s decision in Wilson v. Pennsylvania Higher Edu. Assistance 

Agency d/b/a/ American Edu. Serv., 2020 WL 4345341, (6th Cir. July 29, 2020) only the Ninth 

Circuit’s decisions in Facebook and Marks (described as “outliers” by Justice Barrett in the 

Gadelhak ruling),3 adopted an ATDS definition broad enough to cover any device which simply 

has “the capacity to dial stored numbers automatically.” Marks, 904 F.3d at 1052. In Duran, the 

Second Circuit agreed with the Ninth Circuit’s analysis in Marks and held that a system constituted 

an ATDS if it has the ability to store numbers and to automatically dial such numbers, ignoring 

the plain language of the statute. Duran, 955 F.3d at 19284-285. 

 By granting certiorari in Facebook, the Supreme Court is poised to decide the governing 

standard as to what constitutes an ATDS. If the Supreme Court resolves the circuit split in favor 

of the Third, Seventh and Eleventh Circuits’ interpretation, then the scope of this case will be 

limited substantially: i.e. only to the calls Plaintiff allegedly received that involved the playing of 

a pre-recorded message, if any. 

III. ARGUMENT 

 This Court should enter a stay, or extend all remaining deadlines, so that this Court and the 

parties can receive clear guidance from the Supreme Court on the pivotal issue of what constitutes 

an ATDS before substantial additional expense and burden are incurred by either party to this 

litigation since the dispositive motion deadline is fast approaching. 

A. Legal Standard. 

 A trial court has broad discretion to stay all proceedings in an action pending resolution of 

independent proceedings elsewhere. See Landis, 299 U.S. at 254. This discretion is “incident to [a 

 

3 See Gadelhak, 950 F.3d at 460 (“The definition of an ‘automatic telephone dialing system’ would be an 

outlier within the statutory scheme if it were to capture such a wide swath of everyday conduct.”). 

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district court’s] power to control its own docket.” Clinton v. Jones, 520 U.S. 681, 706-07 (1997); 

see also Air Line Pilots Ass’n v. Miller, 523 U.S. 866, 879 n.6 (1998) (“[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.”) 

(quotation marks omitted); see also Hines v. D'Artois, 531 F.2d 726, 733 (5th Cir. 1976)(holding 

“a district court has a general discretionary power to stay proceedings before it in the control of its 

docket and in the interests of justice.”). 

 When considering whether to stay proceedings, district courts generally consider: 

(1) the possible damage which may result from the granting of a stay; (2) the 

hardship or inequity which a party may suffer in being required to go forward; and 

(3) 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. 

Fishman Jackson PLLC v. Israely, 180 F. Supp. 3d 476, 482 (N.D. Tex. 2016). Each factor need 

not be present; instead, if the factors on balance weigh in favor of granting a stay, the court may 

properly stay the action. Importantly, the parties and claims need not be identical in order for one 

action to be stayed or dismissed in deference to an earlier action. Landis, 299 U.S. at 254. 

B. The Court Should Stay this Action Pending a Decision in Facebook. 

 Here, the factors weigh heavily in favor of staying this action pending the Supreme Court’s 

ruling in Facebook. First, JPMC unquestionably will be harmed in the form of the expenditure of 

significant time and litigation expense if a stay is not granted. Absent a stay, JPMC will be forced 

to prepare a Motion for Summary Judgment and if it is denied, prepare this case for trial which is 

currently scheduled for May 3, 2021. Staying this case or extending the deadlines pending the 

decision in Facebook will likely impact what claims Plaintiff may pursue. It does not make sense 

for either party to engage in these efforts where the Supreme Court will provide guidance that will 

impact the legal issues that remain. As an example, now that oral argument has been conducted 

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in Facebook, JPMC could not possibly brief whether JPMC’s dialing system constitutes an ATDS 

until the Supreme Court provides guidance as to the definition of ATDS. In addition, although 

parties have not yet been able to settle this matter, the Supreme Court decision may help facilitate 

a resolution. 

 The requested stay will also streamline these proceedings by simplifying the issues and 

preserving judicial resources while the Supreme Court considers the extent to which Plaintiff’s 

claim can proceed. As discussed above, the Supreme Court’s decision in Facebook could 

significantly curtail Plaintiff’s TCPA claims if not altogether eliminate the claim. Indeed, if 

Facebook is resolved in favor of the majority position, the scope of Plaintiff’s TCPA claim would 

be limited to pre-recorded calls only. Therefore, at minimum, the decision will dictate the scope 

of the issues and will streamline trial. See, e.g., Creasy v. Charter Communs., Inc., No. 20-1199, 

2020 U.S. Dist. LEXIS 177798, at *18-22 (E.D. La. Sep. 28, 2020) (granting stay of TCPA claim 

reasoning: 

...in its significant potential to narrow and refine the issues in this case, a decision 

in Facebook promises to benefit the parties and the Court in a multitude of ways. 

Among other likely benefits, pausing this litigation in wait of a ruling in Facebook

may (1) prevent a waste of judicial and party resources in the event that Facebook

clearly dictates that the plaintiffs' remaining claims are without merit, (2) limit and 

streamline discovery in the event that the plaintiffs' claims do have merit, and (3) 

reduce the risk of an incorrect decision by sharpening the legal issues at play. 

Id. at *19-20. 

 With the benefit of the Supreme Court’s decision, the parties will be able to streamline this 

matter. Indeed, if this action is not stayed and if this Court were to issue any rulings or opinions 

relating to the definition of an ATDS, or on an interim basis, such a ruling would be subject to 

appellate review if the Supreme Court reverses the Ninth Circuit’s decisions in Marks and 

Facebook. A stay is appropriate under these circumstances and several courts around the country 

have granted stays. See Hoffman v. Jelly Belly Candy Co., 19-cv-01935-JAM-DB, 2020 U.S. Dist. 

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LEXIS 112663 (C.D. Cal. June 26, 2020), at *5-6 (granting defendant’s motion to stay and finding 

that there is a “significant split that has developed among the circuits” regarding the definition of 

an ATDS and the “the Supreme Court may not remain silent for much longer waiting for the 

Supreme Court’s decision in . . . [Facebook], will allow this [c]ourt to adjudicate the issues before 

it with far greater certainty. To do otherwise would be a waste of judicial resources and a waste of 

the parties’ time and energy”); see also Gerstenhaber v. Client Res. Grp., Inc., No. 

16819CV02004JLSADS, 2020 WL 3883281, at *3 (C.D. Cal. June 19, 2020) (granting the stay 

and reasoning “it would be unwise [for this Court to endeavor] to predict the Supreme Court’s 

course of action with any certainty” and that the possibility that the Supreme Court automated-call 

restriction could be invalidated, or further explained, warranted conserving the parties’ and the 

court’s resources) (internal quotations omitted); Palmer v KCI USA, Inc., 2020 WL 6441268 (D. 

Neb. Nov. 3, 2020); Aleisa v. Square, Inc., 2020 WL 5993226 (N.D. Cal. Oct. 9, 2020); Creasy v. 

Charter Communs., Inc., No. 20-1199, 2020 U.S. Dist. LEXIS 177798, at *18-22 (E.D. La. Sep. 

28, 2020); Sealey v. Chase Bank (U.S.A.), N.A., 2020 WL 5814108 (N.D. Cal. Sept. 29, 2020); 

Head v. Citigroup Inc., 2020 WL 6198950 (D. Ari. Sept. 22, 2020); Jensen v. Roto-Rooter Servs. 

Co., 2020 U.S. Dist. LEXIS 151256 (W.D. Wash. Aug. 20, 2020). 

 In light of the clear prejudice to JPMC and inefficiencies in the orderly course of justice 

that would result if this action is not stayed, Plaintiff simply cannot establish that he will be 

meaningfully prejudiced by the requested stay. Initially, the requested stay will not be indefinite 

as the Supreme Court heard oral argument in Facebook on December 8, 2020. Therefore, the 

requested stay will not result in any meaningful delay and will provide valuable insight into the 

TCPA claims. See Creasy, 2020 U.S. Dist. LEXIS 177798, at *19 (holding the “circumstances 

here firmly favor a stay for several related reasons. All stem from the fact that a decision in 

Facebook promises to significantly hone the issues in this case. In Facebook, the Court will resolve 

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a circuit split concerning the scope of the TCPA's definition of an “automatic telephone dialing 

system” (ATDS).”). 

 Notably, Plaintiff does not allege any ongoing violations. Thus, there would be no 

prejudice or damage to Plaintiff should this Court grant the requested stay. See Chattanond v. 

Discover Fin. Servs., LLC, No. 15-cv-08549-RSWL-JCX, 2016 WL 8202736, at *3 (C.D. Cal. 

Feb. 26, 2016) (granting stay and noting that “Plaintiff does not seek immediate injunctive relief 

to remedy an ongoing violation of the TCPA.”); Reynolds v. Geico Corp., No. 2:16-cv-01940-SU, 

2017 WL 815238, at *4 (D. Or. Mar. 1, 2017) (“[A]lthough plaintiff has requested injunctive relief 

as well, the last text message plaintiff received was in August 2016, . . . and nothing suggests that 

plaintiff is in jeopardy of receiving additional text messages.”). 

IV. CONCLUSION 

 For the foregoing reasons, JPMC respectfully requests that this Court stay these 

proceedings pending a decision from the United States Supreme Court in Facebook, or in the 

alternative extend all remaining deadlines for seven months and continue the trial until such time 

that a decision by the high Court is rendered. 

 

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Respectfully submitted, 

/s/ Gregg D. Stevens 

GREGG D. STEVENS 

State Bar No. 19182500 

FRANK J. CATALANO

State Bar No. 24052991 

MCGLINCHEY STAFFORD PLLC 

Three Energy Square 

6688 N. Central Expressway, Ste. 400 

Dallas, Texas 75206 

Telephone: (214) 445.2445 

Facsimile: (214) 445.2450 

gstevens@mcglinchey.com

fcatalano@mcglinchey.com 

Attorney for: 

JPMorgan Chase Bank, N.A. 

CERTIFICATE OF CONFERENCE 

 I, the undersigned, hereby certify to the Court that on December 9, 2020, I have 

conferred via telephone with Amy Ginsburg, counsel for Plaintiff Lance Bilberry regarding the 

relief requested in this motion. Counsel is unopposed to this motion. On December 10, 2020 I 

contacted Ms. Ginsburg to determine whether in lieu of a stay she would agreeable to an extension 

of the remaining deadlines to give the US Supreme Court time to rule, Ms. Ginsburg has not yet 

responded to the alterative relief requested. 

/s/ Gregg D. Stevens 

GREGG D. STEVENS 

CERTIFICATE OF SERVICE 

 I hereby certify that on the December 14, 2020, a copy of the above and foregoing was 

filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing has 

been forwarded to all counsel of record by operation of the Court’s electronic filing system. 

 

 /s/ Gregg D. Stevens 

 GREGG D. STEVENS

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