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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

LANCE BILBERRY, §

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Plaintiff, §

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v. § 1:20-CV-470-RP

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JPMORGAN CHASE BANK, N.A., §

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Defendant. §

ORDER

Before the Court is Defendant JPMorgan Chase Bank, N.A.’s (“JPMC”) motion to stay 

proceedings pending a decision in Facebook, Inc. v. Duguid, 19-511, 2020 WL 3865252 (U.S. July 9, 

2020), which is currently before the Supreme Court of the United States (Mot. Stay, Dkt. 25). 

Plaintiff Lance Bilberry (“Bilberry”) opposes the motion to stay. (Pl.’s Opp., Dkt. 26). After 

reviewing the motion, responses, and applicable law, the Court will grant the motion to stay.

I. BACKGROUND

Bilberry filed this case on May 1, 2020, alleging that JPMC violated the Telephone Consumer 

Protection Act (“TCPA”) by contacting Bilberry on his cellular telephone using an automatic 

telephone dialing system (“ATDS”) without his consent. (Compl., Dkt. 1, at 3). On July 9, 2020 the 

Supreme Court granted certiorari in Facebook, Inc. v. Duguid, 19-511, 2020 WL 3865252 (U.S. July 9, 

2020) to address a circuit split regarding the TCPA’s definition of an ATDS, and oral argument was 

heard on December 8, 2020. In its motion to stay, JPMC asks the Court to stay all pretrial 

proceedings because a decision in Duguid will address how an ATDS is defined and therefore the 

scope of its application in this case. (Mot. Stay, Dkt. 25, at 2–3). Bilberry opposes the motion to stay, 

arguing that a stay would be unjust to him. (Pl.’s Opp., Dkt. 26, at 3–4). 

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II. LEGAL STANDARD

A district court has the inherent power to stay proceedings incidental to its power to control 

the disposition of its docket. See Clinton v. Jones, 520 U.S. 681, 706 (1997); Landis v. N Am. Co., 299 

U.S. 248, 254–55 (1936); Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 545 (5th Cir. 1983). “The 

proponent of a stay bears the burden of establishing its need.” Clinton, 520 U.S. at 708. In 

determining whether a stay is proper, the Court should consider three factors: (1) the potential 

prejudice to the non-moving party; (2) the hardship and inequity to the moving party if the action is 

not stayed; and (3) the judicial resources that would be saved by avoiding duplicative litigation if the 

cases are in fact consolidated. See La. Stadium & Exposition Dist. v. Fin. Guar. Ins. Co., Civ. A. No. 09-

CV-235, 2009 WL 926982, at * 1 (E.D. La. Apr. 2, 2009). When exercising its discretion, the Court is 

“guided by the policies of justice and efficiency.” Boudreaux v. Metro. Life Ins. Co., Civ. A. No. 95-CV138, 1995 WL 83788, at *1 (E.D. La. Feb. 24, 1995).

III. DISCUSSION

In support of its motion to stay, JPMC argues (1) without a stay, JPMC will be harmed by 

preparing the case for trial before the Supreme Court provides its guidance on a critical issue in the 

case; (2) a stay will conserve judicial resources because the Duguid decision potentially will streamline 

the issues and lead to a resolution for the parties; and (3) a stay will not prejudice Bilberry as oral 

arguments are complete in Duguid, 19-511, 2020 WL 3865252 and as such a decision is forthcoming. 

(Mot. Stay, Dkt. 25, at 7–10). Bilberry responds that (1) other courts have rejected requests for stays 

in similar circumstances; (2) Duguid “likely will not be decided until June 2021 or perhaps even later”;

and (3) “[p]utting a case on pause for a half a year against the Plaintiff’s wishes would be a facially 

unjust result.” (Pl’s Opp., Dkt. 26, at 3–4). 

This Court has the discretion to stay cases incidental to its power to control the disposition 

of its docket, including when a pending ruling from a higher court may affect the case at hand.

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Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also Rezko v. Xbiotech Inc., 2017 WL 4544683 (W.D. 

Tex. Oct. 6, 2017). When deciding whether to stay a case pending a higher court’s decision, the 

Court considers “(1) whether a stay will unduly prejudice or present a clear tactical disadvantage to 

the nonmoving party, (2) whether a stay will simplify the issues in question and trial of the case; and 

(3) whether discovery is complete and whether a trial date has been set.” Dwyer v. USAA Savings 

Bank, 2017 WL 7805760, at *1 (W.D. Tex. 2017) (citing Soverain Software LLC v. Amazon.com, Inc., 356 

F. Supp. 2d 660, 662 (E.D. Tex. 2005)).

First, although Bilberry contends that he will be prejudiced, Bilberry does not explain how 

he would be prejudiced by a stay—a stay that would not be indefinite—or how the facts and 

procedural posture of this case are like those in the cases where courts declined to enter a stay. The 

only pending substantive motion is Bilberry’s motion to dismiss JPMC’s counterclaim, (Dkt. 9), 

which Bilberry did not mention in his response. Finally, the Court finds that a stay would in fact 

conserve litigation costs for the parties by potentially avoiding needless motion practice, if not a trial 

and appeal, before the Supreme Court clarifies the applicable law. Accordingly, based on the 

information presented to the Court by the parties, the Court finds that Bilberry would not be unduly 

prejudiced by a stay in this case. 

Second, the Court finds that the decision in Duguid will likely simplify this matter and inform 

the Court’s ruling on any dispositive motions, as well as the parameters of discovery. “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.” (Mot. Stay, Dkt. 25, at 2); see also Suttles v. Facebook, Inc., 461 F. Supp. 

3d 479, 484 (W.D. Tex. 2020) (“The Fifth Circuit has not adopted an ATDS definition. Other 

circuits have conflicting definitions.”). As such, the Court finds that a decision in Duguid will simplify 

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the disputed issues between the parties and guide the Court’s decisions on dispositive motions filed 

in this case. 

Lastly, this case is not nearing the end stages. There is a pending motion to dismiss, (Dkt. 9), 

and the dispositive motions deadline has not passed, (Scheduling Order, Dkt. 17) (setting dispositive 

motions deadline for February 5, 2021). Because the motion to stay has been made before the Court 

has ruled on the pending motion to dismiss and before the dispositive motions deadline, the Court 

finds that a stay is appropriate at this stage of the case. Dwyer v. USAA Sav. Bank, 2017 WL 7805760, 

at *1 (W.D. Tex. Nov. 21, 2017) (“A stay is generally appropriate if the motion for a stay is made 

early in the proceedings and a stay is unlikely to prejudice the plaintiff.”) (citing Baxter Research, 611 

F.Supp.2d 647, 650 (E.D. Tex. 2009)). Given the likelihood that the Supreme Court’s decision in 

Duguid will affect the instant case, the lack of undue prejudice to Bilberry, and the interests of 

judicial economy and consistency served by a stay, the Court finds that a stay pending the Supreme 

Court’s decision in Duguid is warranted in this case.

IV. CONCLUSION

For these reasons, IT IS ORDERED that this case is STAYED and all pending deadlines 

and court settings are stayed until the Court lifts the stay following the resolution of Facebook, Inc. v. 

Duguid, 19-511, 2020 WL 3865252 (U.S. July 9, 2020).

IT IS FURTHER ORDERED that the parties file a joint status report within two weeks 

of the Supreme Court’s decision in Facebook, Inc. v. Duguid, 19-511, 2020 WL 3865252 (U.S. July 9, 

2020). 

SIGNED on January 13, 2021.

_____________________________________

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

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