IN THE UNTED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BENJAMIN GARNER and DEBORAH )

SCHICK, individually and on behalf of all )

similarly situated individuals, ) Case No. 1:20-cv-04693

)

Plaintiffs, ) Hon. John Z. Lee

)

v. )

) JURY TRIAL DEMANDED

ALLSTATE INSURANCE COMPANY, an )

Illinois insurance company, )

)

Defendant. )

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S PARTIAL MOTION 

TO DISMISS OR, IN THE ALTERNATIVE, MOTION TO STAY

I. INTRODUCTION

This case challenges Defendant Allstate Insurance Company’s (“Defendant” or 

“Allstate”) serial violations of the Telephone Consumer Protection Act (“TCPA”). Specifically, 

Allstate, either on its own or through telemarketers acting on its behalf, places unsolicited, 

autodialed phone calls to consumer cell phones without obtaining prior express consent, 

including to those who have registered their phone numbers on the National Do Not Call 

Registry. Yet rather than answer the Complaint, Defendant asks the Court to dismiss Plaintiffs’ 

autodialer claim or, in the alternative, to stay the entire case pending the Supreme Court’s ruling 

in Facebook Inc. v. Duguid, No. 19-511 (U.S. July 9, 2020), a case concerning the definition of 

an automated telephone dialing system (“ATDS”). Defendant’s arguments for partial dismissal

fail, and a stay pending resolution of the Duguid case is not appropriate or supported. As 

explained further below, the Court should deny Allstate’s motion in its entirety.

Despite Defendant’s protestations, Plaintiffs Benjamin Garner (“Garner”) and Deborah 

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Schick (“Schick”) (collectively “Plaintiffs”) have sufficiently pleaded the use of an autodialer to 

support their first cause of action and survive a motion to dismiss. Plaintiffs have not, as Allstate 

attempts to suggest, merely recited statutory language—the Complaint contains factual 

allegations about the content, context, and number of calls received that, taken as true, permit a 

reasonable inference that the calls were placed using an ATDS. Plaintiffs cannot be expected to 

prove their case at the pleadings stage, particularly when evidence of the dialing system at issue 

is possessed solely by Allstate or its agents.

Defendant’s alternative motion to stay is similarly meritless. Allstate’s assessment of the 

Duguid case is flawed because, regardless of the definition of ATDS that the Supreme Court may 

ultimately settle on, the true nature the dialing equipment that was used to place calls to Plaintiffs

and the classes must be ascertained through discovery. Plaintiffs’ ATDS claims allegations meet 

even a strict interpretation of the statutory definition, such that a reversal of Duguid would not 

dispose of their claim. Likewise, the factors for granting a Landis stay do not favor Allstate’s 

request, and Plaintiffs would suffer prejudice if the case and all discovery were delayed. 

Accordingly, the Court should deny Defendant’s Partial Motion to Dismiss or Stay in its entirety.

II. SUMMARY OF THE CLAIMS

Plaintiffs allege that Allstate violated the TCPA by making unsolicited, autodialed calls 

to their cellphone and to the cellphones of a class of consumers, all of whom did not provide 

prior express written consent to receive such calls. (See Compl., dkt. 1 at ¶ 2.) Plaintiffs bring 

two causes of actions and seek to represent two classes of affected consumers: a “No Consent 

Class” and a “DNC Registry Class.” (Id. ¶ 48.) The No Consent Class consists of all persons 

called by Allstate using the same dialing equipment and for whom Defendant claims it obtained 

consent in the same manner as it may claim to have obtained consent to call the Plaintiffs. (Id.) A 

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key component of the No Consent Class’ claim is that the dialing technology used by Allstate to 

make the calls qualifies as an ATDS as defined in the statute—that is, equipment with the 

capacity to store or produce telephone numbers to be called using a random or sequential number 

generator, and to thereafter dial such numbers without human intervention. (See id. ¶¶ 20, 58.)

The DNC Registry Class comprises persons who were called at least twice after their phone 

number had been registered on the National DNC Registry for at least thirty days. (Id. ¶ 48.)

Though they cannot know the precise nature of the dialing equipment used by Allstate or 

its telemarketers without discovery, Plaintiffs supported their claims with factual allegations that 

suggest the calls they received were automated. Garner received his first call from 817-555-0000

on June 4, 2019. (Id. ¶ 27.) He received a second call from the same number the next day on June 

5, 2019, and a third call on June 6, 2019. (Id. ¶¶ 28–29.) He received a fourth call from a 

different number, 214-555-0000, on June 10, 2019, during which the caller said they would send 

Garner an email but never did. (Id. ¶ 30.) The fifth call came from 214-369-3757 on July 24, 

2019. (Id. ¶ 31.) All five callers indicated they were calling from Allstate. (Id. ¶¶ 27–31.)

Schick received a total of six calls—the first came from 925-290-1677 to her 6443 

number on August 7, 2019. (Id. ¶ 37.) She received a second call to her 6443 number from 925-

204-7767 on August 21, 2019, and a third call from 925-445-2086 on August 26, 2019. (Id. ¶¶ 

38–39.) She also received a call from 925-840-1682 to her 6535 number on August 26, 2019. (Id.

¶ 40.) Schick received a fourth call to her 6443 number from 925-735-7741 on September 16, 

2019, and a second call to her 6535 number from 925-686-4823 on December 18, 2019. (Id. ¶¶ 

41–42.) The first caller indicated that they were calling from Allstate, while the remaining five 

callers transferred or attempted to transfer Schick to an Allstate representative. (Id. ¶¶ 37–42.)

Plaintiffs are not Allstate customers, they do not have any relationship with Allstate, and 

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they never provided express written consent to Allstate or its telemarketers to place these calls to 

them. (Id. ¶¶ 32, 43, 61.) Based on the number and frequency of calls, the variety of phone 

numbers, and the lack of any relationship with Allstate, Plaintiffs alleged that the calls were 

made using an ATDS. (See id. ¶¶ 20, 34, 45, 58.)

III. ARGUMENT

Defendant’s motion advances two separate arguments: (1) Allstate claims that Plaintiffs’ 

first cause of action should be dismissed because the Complaint supposedly “parrot[s] the 

language of the TCPA” and alleges the use of an ATDS “without factual support” (Def. Mot., 

dkt. 18, at 2); and (2) as an alternative to dismissal of the ATDS, Allstate asks the Court to stay 

the entire case pending the Supreme Court’s ruling in Facebook v. Duguid, No. 19-511, 2020 

WL 3865252 (July 9, 2020), which will determine whether a device that does not feature a 

random or sequential number generator may still be considered an ATDS if it can store and 

automatically dial numbers. (Dkt. 18 at 2–3.) As explained below, neither argument wins the 

day. Defendant’s argument for dismissal overlooks the factual allegations made by Plaintiffs,

which sufficiently detail the context and number of calls to permit a reasonable inference that the 

calls were made using an ATDS—more specific factual allegations about the dialing equipment 

need not be made, and, in fact, cannot be made without discovery. 

As for Allstate’s alternative argument to stay, Defendant’s confidence that Duguid will 

dispose of Plaintiffs’ ATDS claim is based on a mischaracterization of either the issue before the 

Supreme Court or the allegations in the Complaint. Duguid may settle interpretation of the 

TCPA’s autodialer definition, but Plaintiffs have made allegations consistent with a strict 

interpretation of the statute, and they will require discovery regardless of the Supreme Court’s 

decision. The requested stay is not appropriate or supported by the Landis factors.

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A. Plaintiffs Have Pleaded Facts To Plausibly Suggest That The Calls From 

Allstate Were Made Using An ATDS.

Allstate begins its motion by asking the Court to dismiss Plaintiffs’ first claim for relief, 

asserting that the Complaint is supposedly “without factual support” to “sustain or even 

understand the basis of” Plaintiffs’ claims that the calls were made using an ATDS. (See Dkt. 18, 

at 2). But Defendant’s argument ignores the factual allegations that give rise to the inference that 

the calls were automated. Plaintiffs cannot make specific, technical allegations about the dialing 

system without discovery, and they are not expected to do so. Instead, Plaintiffs have pleaded 

sufficient contextual facts about the calls to elevate their ATDS allegations above the speculative 

level—they have met their burden to survive a motion to dismiss.

To survive a motion to dismiss, a plaintiff’s complaint must contain sufficient factual 

allegations to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007). A plaintiff must plead allegations that “plausibly suggest that the 

plaintiff has a right to relief, raising that possibility above a speculative level.” Torres v. Nat'l 

Enter. Sys., Inc., No. 12 C 2267, 2012 WL 3245520, at *1 (N.D. Ill. Aug. 7, 2012) (internal 

citations omitted). In ruling on a motion to dismiss for failure to state a claim, “the court must 

draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in 

the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations 

in the complaint.” Id. (citing Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th 

Cir.2012); Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.2002)).

The TCPA prohibits the use of an automatic telephone dialing system to make texts or 

calls to consumer cell phones. 47 U.S.C. § 227(b)(1)(A)(iii). The statute 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; and to dial such numbers.” 47 U.S.C. § 227(a)(1). With 

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regard to what is required at the motion to dismiss stage, the case law in this District is mixed—

some cases suggest that reciting statutory language is enough, while others have required 

additional, independent facts to give rise to the inference that an ATDS was used. See Izsak v. 

Draftkings, Inc., 191 F. Supp. 3d 900, 904 (N.D. Ill. 2016). But even under the stricter approach, 

a TCPA plaintiff may describe “anything ... about the circumstances of a call or message 

contributing to his belief it was pre-recorded or delivered via an ATDS.” Sojka v. DirectBuy, 

Inc., 35 F. Supp. 3d 996, 1003 (N.D. Ill. 2014) (quoting Johansen v. Vivant, Inc., 2012 WL 

6590551, at *3 (N.D.Ill. Dec. 18, 2012)). It is unreasonable to expect plaintiffs to make detailed, 

technical allegations because “it would be virtually impossible, absent discovery, for any 

plaintiff to gather sufficient evidence regarding the type of machine used” to place a call or text. 

Sojka, 35 F. Supp. 3d at 1002; Torres v. Nat'l Enter. Sys., Inc., No. 12 C 2267, 2012 WL 

3245520, at *3 (N.D. Ill. Aug. 7, 2012). 

Thus, plaintiffs must generally rely on indirect allegations to plead the use of an ATDS, 

including details about the content of the messages or calls, context and manner in which they 

were sent, existence of similar calls, and frequency of calls. Maier v. J.C. Penney Corp., No. 

13CV0163-IEG DHB, 2013 WL 3006415, at *3 (S.D. Cal. June 13, 2013); see also Izsak v. 

Draftkings, Inc., 191 F. Supp. 3d 900, 904 (N.D. Ill. 2016) (finding that a plaintiff could describe 

the promotional content, the generic or impersonal nature of the messages, or the existence of 

identical messages sent to other potential customers to suggest the use of an ATDS); Vaccaro v. 

CVS Pharmacy, Inc., No. 13-CV-174-IEG (RBB), 2013 WL 3776927, at *2 (S.D. Cal. July 16, 

2013) (finding that the number of calls, the commercial nature of the calls, and the lack of a 

relationship between the parties support a reasonable inference of an ATDS). While additional 

factual details about the dialer at issue might be helpful, “further facts are not required to move 

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beyond the pleading stage.” Sojka, 35 F. Supp. 3d at 1002 (quoting In re Jiffy Lube Int'l, Inc., 

847 F.Supp.2d 1253, 1260 (S.D. Cal. 2012)); see also Pederson v. Donald J. Trump for 

President, Inc., 465 F. Supp. 3d 929 (D. Minn. 2020) (“Without discovery, Plaintiffs have no 

ability, beyond attempting to call the texting number and comparing text messages with one 

another, to determine the mechanics of the Trump Campaign's dialing machinery. Their 

allegations are plausible, and that is all that is required at this phase of litigation.”)

Here, Plaintiffs have alleged enough facts to support a reasonable inference that the calls 

they received from Allstate, or agents on behalf of Allstate, were placed using an ATDS. While

Plaintiffs do make direct allegations that an ATDS was used (see dkt. 1 at ¶¶ 20, 34, 45, 58), 

these are not “mere recital” or “bare allegation[s],” as Defendant would have the Court believe. 

(Dkt. 18 at 2.) Rather, these claims are supported by factual allegations relating to the content, 

context, and number of calls received. In total, Plaintiffs allege receipt of a total of eleven calls: 

five calls made to Garner and six made to Schick. (Dkt. 1 at ¶¶ 27–31, 37–42.) Four of the calls 

to Garner were made in a span of one week, and Schick received four calls to two of her phone 

numbers in one month—the number and frequency of calls makes the use of an ATDS more 

likely. (Id. at ¶¶ 27–30, 37–40.) Further, while the eleven calls were similar in nature by referring 

to Allstate’s services, the calls came from at least nine different phone numbers. (Id. ¶¶ 27–31, 

37–42.) Rather than an individual dialing and attempting to reach either Plaintiff, the variety of

phone numbers—at least some of which could have been “spoofed” phone numbers—suggests 

automated telemarketing by Allstate or its agents on behalf of Allstate. Additionally, all eleven 

callers either stated that they were calling from Allstate or attempted to transfer the call to an 

Allstate representative, yet neither Plaintiff consented to the calls or had an existing relationship 

with Allstate that would justify these calls. (Id. ¶¶ 27–32, 37–43, 61); see also Abbas v. Selling 

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Source, LLC, No. 09 CV 3413, 2009 WL 4884471, at *3 (N.D. Ill. Dec. 14, 2009) (finding that 

the lack of “any reason to call [the plaintiff]’s number aside from telemarketing purposes” 

supported an ATDS allegation).

Despite having no relationship or reason to call Plaintiffs, Allstate called both Garner and

Schick in a similar fashion and from a variety of phone numbers. These factual allegations 

support the claim, and permit the Court to reasonably infer, that the calls were made using an 

ATDS. Considering these factual allegations, Plaintiffs have met their burden to plausibly allege 

the use of an ATDS. Absent discovery, only Allstate truly knows how the calls were placed to 

Plaintiffs. Sojka, 35 F. Supp. 3d at 1002; see also Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125, 

1129-30 (W.D. Wash. 2012) (“courts have noted ‘the difficulty a plaintiff faces in knowing the 

type of calling system used without the benefit of discovery”) Any further details about 

Allstate’s dialing equipment must be obtained through discovery.

Defendant’s Motion largely ignores Plaintiffs’ factual allegations or asks the Court to 

impose a strict standard of what facts must be alleged. Allstate focuses heavily on the allegations 

that reflect the statutory elements and attempts to minimize the remaining, contextual allegations, 

going so far as to assert that Plaintiffs cannot support their ATDS claim without using the exact 

same facts that were accepted in Martin v. Direct Wines, Inc., No. 15 C 757, 2015 WL 4148704 

(N.D. Ill. July 9, 2015). (See Dkt. 18 at 8) (“None of the facts that the court specifically laid out 

in Martin . . . are present in the Complaint.”). However, and as Defendant notes, Martin is but 

“one decision in a line of case law” in this District that permits a plaintiff to support an ATDS 

claim with “anything . . . about the circumstances of a call.” (Id. at 8); Sojka, 35 F. Supp. 3d at

1003. Martin does not contain a list of requirements, but examples of how an ATDS claim may 

be supported. Other examples include the calls’ promotional content, the generic nature of the 

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calls, the existence of identical calls to other consumers, and the lack of an existing

relationship—all of which Plaintiffs have alleged. See Izsak, 191 F. Supp. 3d at 904; Sojka, 35 F. 

Supp. 3d at 1002–03; Abbas, 2009 WL 4884471, at *3. The allegations related to the amount and 

frequency of calls, as well as their content and context, support a reasonable inference that 

Allstate or its agents used an ATDS.

In short, Defendant’s arguments for dismissal overlook many of Plaintiffs’ factual 

allegations and attempt to impose a heightened pleading requirement. Plaintiffs have met their

burden to survive a motion to dismiss by alleging that Allstate used an ATDS and providing 

sufficient factual detail to raise their claim for relief above the speculative level. Accordingly,

Defendant’s partial motion to dismiss should be denied.

B. Allstate’s Alternative Request To Stay Is Inappropriate Because A Ruling In 

Duguid Would Not Be “Dispositive” Of Plaintiffs’ ATDS Claim.

As an alternative to dismissal, Allstate asks the Court to stay the entire case pending the 

Supreme Court’s review of Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir. 2019). (Dkt. 18 at 

11–14.) While the Supreme Court’s ruling could potentially alter the definition of an ATDS, it 

will not affect the foundation of Plaintiffs’ ATDS claim1—no matter what is decided in Duguid, 

Plaintiffs will require discovery regarding the dialing technology used by Allstate, and 

Defendant cannot credibly demand delay of that discovery. Likewise, the Landis factors are 

unsupported—the requested stay would simply delay inevitable discovery and prejudice 

Plaintiffs’ ability to obtain evidence. Allstate’s alternative request should be rejected, and the 

Court should permit this matter to proceed to discovery.

1 The Duguid decision will have no bearing whatsoever on Plaintiffs’ DNC Registry Class claim, 

which does not depend on the use of an autodialer. (See Dkt. 1 at ¶¶ 48, 64–75.) Allstate 

advances no arguments as to why this claim should be stayed.

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As Allstate outlines in its motion, at issue in Duguid is the statutory definition of an 

ATDS. The Ninth Circuit held in Duguid that an ATDS could be found where the dialing 

technology at issue is capable of storing numbers to be called and dialing such numbers 

automatically. Duguid, 926 F.3d at 1149–51. The Court rejected the notion that an ATDS must 

use a random or sequential number generator to store numbers. Id. The U.S. Supreme Court 

granted certiorari on July 9, 2020, for review of the following issue: 

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 Petitioner’s Brief in Facebook, Inc. v. Duguid, et al., Case No. 19-511, 2019 WL 5390116, 

at *ii (S. Ct. Oct. 17, 2019).

The Supreme Court will ultimately consider whether a dialer that does not use a “random

or sequential number generator” may be considered an ATDS. While a decision in either 

direction will certainly impact TCPA litigation and the legal definition of an autodialer, it will 

not dispose of Plaintiffs’ claims or the requirement to demonstrate the use of an ATDS. Here, 

Plaintiffs alleged in the Complaint that Defendants used an ATDS, including “a random or 

sequential number generator.” (Dkt. 1 at ¶¶ 20, 58.) Thus, if the Court answers its question 

affirmatively, Plaintiffs will no longer need evidence of such a number generator to prove that 

Allstate’s dialing system qualifies as an ATDS. But no matter what is decided in Duguid, 

Plaintiffs must, through discovery, obtain evidence of the dialer that was actually used to make 

calls to themselves and the No Consent Class members. (See Dkt. 1 at ¶ 48.) Such evidence is in 

Defendant’s possession, and it will be required regardless of what the Supreme Court decides. 

Allstate is seeking a stay that will only delay necessary and inevitable discovery. 

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Nevertheless, Allstate claims that the requested stay is supported by the factors applied 

by courts in this circuit. These factors are rooted in the Supreme Court’s acknowledgement in 

Landis that courts have inherent power to control their own dockets, including the power to stay. 

Id. at 1109; Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). In this Court, the factors have been 

identified as follows: “(i) whether a stay will unduly prejudice or tactically disadvantage the nonmoving party, (ii) whether a stay will simplify the issues in question and streamline the trial,” 

often referred to as judicial economy, “and (iii) whether a stay will reduce the burden of 

litigation on the parties and on the court.” Pfizer Inc. v. Apotex Inc., 640 F. Supp. 2d 1006, 1007 

(N.D. Ill. 2009). Any party seeking a stay “must make out a clear case of hardship or inequity in 

being required to go forward” if there is “even a fair possibility that the stay . . . will work 

damage to someone else.” Id. at 1007 (quoting Landis, 299 U.S. at 255); see also Radio Corp. of 

Am. v. Igoe, 217 F.2d 218, 220 (7th Cir. 1954). Allstate’s analysis of these factors is flawed—as 

explained below, none of the Landis factors favors the requested stay.

First, Allstate asserts that Plaintiffs won’t be unduly harmed or tactically disadvantaged 

by a stay because argument in Duguid “will take place on December 8, 2020.” (Dkt. 18, at 13.) 

But Defendant is asking to stay the case entirely until the Supreme Court reaches a decision in 

Duguid—Allstate does not suggest when this may be, but even if oral arguments are heard on 

December 8, a decision may not be rendered until as late as July 2021.2 Generally, a delay that 

results from a stay can harm plaintiffs because it threatens the availability of evidence. See Blue 

Cross & Blue Shield of Ala. v. Unity Outpatient Surgery Ctr., Inc., 490 F.3d 718, 724 (9th Cir. 

2

See Supreme Court Procedures, UNITED STATES COURTS, https://www.uscourts.gov/aboutfederal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1

(last visited Oct. 5, 2020) (“All opinions of the Court are, typically, handed down by the last day 

of the Court's term (the day in late June/early July when the Court recesses for the summer).”)

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2007) (recognizing that “[d]elay inherently increases the risk that witnesses’ memories will fade 

and evidence will become stale”). Because the case is in its early stages, Defendant is effectively 

asking to stay all discovery for nearly a year. If Plaintiffs are unable to issue discovery or

subpoenas to secure evidence possessed by Allstate and its agents for eight months, they will be

tactically disadvantaged and prejudiced in their ability to support their claims. Further, every 

month that this matter is delayed is another month for Defendant to continue its automated 

telemarketing campaign unchecked and exacerbate the harms at issue in the case. Plaintiffs will 

be prejudiced if the case is stayed because they would be unable to even discover evidence 

material to their claims for eight months, during which time Defendant could continue its 

unlawful practices and cause more harm. The first factor weighs against granting a stay.

The second factor, judicial economy, likewise would not be served by a stay. Issues will 

not be simplified by postponing the case—rather, the ATDS issue will remain no matter what the 

Supreme Court decides. Defendant’s arguments are premised on the mistaken belief that the 

Duguid decision will resolve a “dispositive issue in this case.” (Dkt. 18 at 12.) This is simply not 

true. As explained above, Plaintiffs alleged the use of “a random or sequential number 

generator.” (Dkt. 1 at ¶¶ 20, 58.) If the Supreme Court upholds the Duguid decision, Plaintiffs

would no longer need specific evidence of a number generator to prove that the dialing system 

was an ATDS; if the decision is overturned, Plaintiffs will need such evidence. In either event, 

regardless of the Supreme Court’s decision, Plaintiffs must obtain evidence of the dialing system 

that was actually used to make the calls at issue. Duguid cannot and will not dispose of 

Plaintiffs’ ATDS claim because it is not predicated on allegations that Allstate’s system merely 

dialed from a stored list. In response to a similar request in Whittaker, the District of Arizona 

reasoned that “regardless of the results in Facebook [v. Duguid]...[the defendant] will be 

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required to engage in discovery.” Whittaker v. All Reverse Mortgage Inc., No. CV-20-08016-

PCT-DLR, dkt. 26 at 2 (D. Ariz. July 17, 2020) (attached hereto as “Exhibit A”). The Court 

found that a stay pending Duguid would not simplify issues or serve judicial economy: 

As the parties explain, the result in Facebook [v. Duguid] is likely to determine 

whether Defendant’s systems constituted ATDS. However, assuming the Court 

were to stay the case, once the Supreme Court releases its decision defining ATDS, 

Plaintiff still would be entitled to conduct discovery into Defendant’s systems to 

determine whether those systems met the ATDS definition. In fact, Defendant has 

not pointed to a single discovery issue that would be eliminated by a Facebook

decision favorable to it . . . . Because discovery issues are not likely to be mooted 

and resources are not likely to be spared, considerations of judicial economy do 

not favor a stay.

(Ex. A at 2.) The Northern District of California recently found the same in denying a motion to 

stay pending Duguid: “the nature of the system that Defendant used for making the alleged text 

messages will be an important issue for discovery in this action regardless of the [ATDS] 

definition.” Shultz v. TTAC Publishing, LLC, No. 4:20-cv-04375-HSG, dkt. 23 at 9 (N.D. Cal. 

Oct. 26, 2020) (attached hereto as “Exhibit B”). The same holds true here—Allstate cannot 

credibly suggest that the Duguid decision will streamline or moot any discovery issues because: 

(1) Plaintiffs’ allegations are not based solely on the use of a system that dials from a stored list 

of numbers; and (2) Plaintiffs will require discovery into Defendant’s dialing system regardless 

of what the Supreme Court decides.

Similarly, granting a stay would not reduce the burden of litigation. The third factor 

considered whether proceeding with the case would cause the parties and the Court to “expend 

resources unnecessarily.” Ignite USA, LLC v. Pac. Mkt. Int'l, LLC, No. 14 C 856, 2014 WL 

2505166, at *4 (N.D. Ill. May 29, 2014). Defendant suggests that “resources required to litigate 

this case on the merits will be wasted depending on the breadth to which the Supreme Court 

affords the ATDS issue.” (Dkt. 18 at 13.) Once again, this prediction is rooted in Allstate’s

flawed assessment of the Duguid case and of Plaintiffs’ claims. As explained above, Allstate is 

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seeking a stay that will only delay necessary and inevitable discovery—it will not be “burdened” 

by proceeding, aside from the ordinary expenses associated with litigation, which are certain and 

insufficient to justify postponing this matter for eight months. See, e.g., Lockyer v. Mirant Corp., 

398 F.3d 1098, 1112 (9th Cir. 2005) (“[B]eing required to defend a suit, without more, does not 

constitute a ‘clear case of hardship or inequity.’”) A stay in this matter would not reduce the 

burden of litigation because, regardless of the Duguid decision, Plaintiffs will require discovery 

as to the dialing system used by Allstate—the “burden,” as it were, would be the same now as it 

would be in eight months.

Put simply, there is no support for staying this matter until the Supreme Court issues its 

ruling in Duguid and postponing all proceedings. This is not one of the “rare” instances where a 

party should be made to stand aside while a pertinent rule of law is decided. Landis, 299 U.S at 

255. Allstate is asking that Plaintiffs’ case be postponed for nearly a year on the erroneous belief 

that a shift in the statutory definition of an autodialer would dispose of Plaintiffs’ ATDS claim. 

Delaying the entire case as requested would unduly prejudice and tactically disadvantage 

Plaintiffs in their ability to support their claims, and no issues or costs of litigation would be

averted by postponing discovery. Defendant’s alternative motion should be denied.

IV. CONCLUSION

Allstate’s motion should be denied in its entirety. Plaintiffs have alleged sufficient factual 

details to permit a reasonable inference that the calls they received were made using an ATDS. 

Further, with regard to Defendant’s alternative request to stay the case, the Supreme Court’s 

upcoming review of the ATDS definition in Duguid will not be dispositive of Plaintiffs’ ATDS 

claim, and the Landis factors do not support staying inevitable discovery and all proceedings in 

the case for up to eight months. Accordingly, the Court should deny the motion, permit the 

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parties to proceed, and award any such relief as it deems necessary and just. 

Respectfully Submitted,

BENJAMIN GARNER and DEBORAH 

SCHICK, individually and on behalf of two 

Classes of similarly situated individuals

Dated: November 17, 2020 By: ___/s/ Steven L. Woodrow__________

 Counsel for Plaintiffs

Marc E. McCallister

mem@mccallisterlawgroup.com

Gary D. McCallister

gdm@mccallisterlawgroup.com

McCallister Law Group

200 North LaSalle Street, Suite 2150

Chicago, IL 60601

(312) 345-0611

Steven L. Woodrow

swoodrow@woodrowpeluso.com

Patrick H. Peluso*

ppeluso@woodrowpeluso.com 

Woodrow & Peluso, LLC

3900 E. Mexico Avenue, Suite 300

Denver, Colorado 80210

Tel: 720-213-0675

Fax: 303-927-0809

Attorneys for Plaintiffs and the Class

* Pro Hac Vice Admission to Be Sought

Case: 1:20-cv-04693 Document #: 25 Filed: 11/17/20 Page 15 of 16 PageID #:102
16

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that a true and accurate copy of the above titled 

document was served upon counsel of record by filing such papers via the Court’s ECF system 

on November 17, 2020.

/s/ Steven L. Woodrow

Case: 1:20-cv-04693 Document #: 25 Filed: 11/17/20 Page 16 of 16 PageID #:103