IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CITY SELECT AUTO SALES, INC.,

Plaintiff,

v.

DAVID RANDALL ASSOCIATES, 

INC., et al.,

Defendants.

Civil Action 

No. 11-2658 (JBS-KMW)

DISCOVERY ORDER & 

ORDER FOR STAY

Before the Court is Defendant’s Motion To Enforce The 

Court’s Order Dated December 17, 2012 Regarding Depositions 

[Docket Item 64]. The Court reviewed the Parties’ submissions 

and held a telephone conference on March 4, 2013.

On December 17, 2012, the Court issued an order [Docket 

Item 53] dismissing Plaintiff’s motion for class certification

[Docket Item 30] without prejudice. The Court permitted 

Plaintiff to refile the motion, instructed the parties to brief 

a particular issue regarding the intersection of New Jersey law 

and the Telephone Consumer Protection Act, and allowed Defendant 

to undertake reasonable discovery, including, inter alia the 

depositions of Brian Wanca and Ryan Kelly, two attorneys in 

Illinois who obtained the hard drive evidence that forms a basis 

of this case. 

Case 1:11-cv-02658-JBS-KMW Document 72 Filed 03/05/13 Page 1 of 5 PageID: 2315
2

In the present motion, Defendant asked the Court to order 

that Wanca and Kelly travel from Illinois, where they reside and 

work, to New Jersey for their depositions.

Plaintiff filed opposition [Docket Item 68] arguing that 

the depositions must be in Illinois pursuant to F.R.C.P. 

45(c)(3)(A)(ii), which states that the issuing court must quash 

a subpoena that requires a non-party to travel more than 100 

miles. Plaintiff also asked the Court to limit the depositions 

of Wanca and Kelly to three hours per witness. Plaintiff’s 

counsel orally also indicated that Wanca and Kelly will not be 

seeking admission pro hac vice to appear in this case. 

Defendant filed a Reply [Docket Item 69], stating, “The 

Court’s [December 17, 2012] Order implicitly requires 

Plaintiff’s counsel to present [Wanca and Kelly] for depositions 

in this jurisdiction, at the Plaintiff’s expense, or have its 

renewed Motion for Class Certification Dismissed.” [Docket Item 

69 at 2-3.] 

During the teleconference, the Court issued an oral opinion 

regarding the discovery disputes presented by the parties, 

holding that the depositions of Wanca and Kelly shall take place 

in Illinois and that Defendant shall have a day, as defined in 

Fed. R. Civ. P. 30(d)(1), to depose each witness, if necessary, 

for a total of up to two days.

Case 1:11-cv-02658-JBS-KMW Document 72 Filed 03/05/13 Page 2 of 5 PageID: 2316
3

During the teleconference, Plaintiff noted that, on 

February 21, 2013, the district court in Bais Yaakov of Spring 

Valley v. Peterson's Nelnet, LLC, Civ. No. 11-00011 (AET), 2013 

WL 663301 (D.N.J. Feb. 21, 2013), certified an interlocutory 

appeal to the Third Circuit regarding the impact of 47 U.S.C. § 

227(b)(3), the provision in the Telephone Consumer Protection 

Act (“TCPA”) that provides, in relevant part, “[a] person or 

entity may, if otherwise permitted by the laws or rules of court 

of a State, bring in an appropriate court of that State” certain 

actions to enjoin TCPA violations or to recover actual monetary 

loss. The Court ordered the parties to brief this issue in its 

December 17, 2012 Order [Docket Item 53 at 2] in connection with 

class certification motion briefing, since Defendant takes the 

position that New Jersey law applies and precludes this case 

from proceeding as a class action. Both parties orally requested 

that this case be stayed indefinitely pending the Third 

Circuit’s resolution of this critical issue of law.

Given the significance of this issue to class certification 

in this action, the Court will administratively terminate 

Plaintiff’s renewed motion for class certification [Docket Item 

60] and will stay this action indefinitely pending the Third 

Circuit’s review of the interlocutory appeal. Plaintiff has 

volunteered to keep the Court apprised of the proceedings before 

the Third Circuit.

Case 1:11-cv-02658-JBS-KMW Document 72 Filed 03/05/13 Page 3 of 5 PageID: 2317
4

For the reasons explained in the Court’s Oral Opinion of 

March 4, 2013 and for good cause shown; 

IT IS this 5th day of March , 2013 hereby

ORDERED that Defendant’s Motion to Enforce the Court’s 

Order Dated December 17, 2012 Regarding Depositions [Docket Item 

64] is denied in part and granted in part; and it is further

ORDERED that the depositions of witnesses Brian Wanca and 

Ryan Kelly will take place in Illinois, at a mutually agreeable 

location; and it is further

ORDERED that the Court will not limit the depositions of 

Wanca and Kelly to three hours each; Defendant shall have a day, 

as defined in Fed. R. Civ. P. 30(d)(1), to depose each witness1; 

and it is further

ORDERED that the Court will STAY this case indefinitely 

pending the Third Circuit’s decision on the interlocutory appeal 

that has been certified by the district court in Bais Yaakov of 

Spring Valley v. Peterson's Nelnet, LLC, Civ. No. 11-00011

(AET), 2013 WL 663301 (D.N.J. Feb. 21, 2013); and it is further

ORDERED that the Plaintiff’s Motion to Certify Class 

[Docket Item 60] is administratively terminated; such Motion may 

 

1 During the telephone conference, the parties agreed that the 

depositions of Wanca and Kelly would take place in Illinois on 

March 14-15, 2013 and that Defendant’s deadline for filing 

opposition to Plaintiff’s class certification motion would be 

extended from April 2, 2013 to April 9, 2013. Given that the 

Court is staying the case in its entirety, these dates may no 

longer be applicable.

Case 1:11-cv-02658-JBS-KMW Document 72 Filed 03/05/13 Page 4 of 5 PageID: 2318
5

be restored to active status upon letter request of Plaintiff’s 

counsel.

s/ Jerome B. Simandle

JEROME B. SIMANDLE

Chief U.S. District Judge

Case 1:11-cv-02658-JBS-KMW Document 72 Filed 03/05/13 Page 5 of 5 PageID: 2319