Hansen v. Rock Holdings, Inc.

Opinion

BILL HANSEN, No. 2:19-CV-0179-KJM-DMC Plaintiff, v. ORDER LMB MORTGAGE SERVICES, INC., et al., Defendants.

Plaintiff, who is proceeding with retained counsel, brings this civil action under the Telephone Consumer Protection Act (TCPA). The case proceeds against defendants Digital Media Solutions, LLC (Digital Media), LMB Mortgage Services, Inc. (LMB), and CPL Assets, LLC (CPL). All defendants sought an order to compel arbitration and to stay proceedings. See ECF Nos. 23 (amended motion to compel arbitration filed by LMB and CPL) and 26 (joinder filed by Digital Media). Defendants LMB and CPL have appealed the District Judge’s January 21, 2020, order denying the motion to compel arbitration and stay proceedings. See ECF Nos. 40 (order) and 43 (notice of appeal). / / / / / / / / / On February 20, 2020, the court issued an order sua sponte vacating the scheduling conference set for February 27, 2020, pending resolution of the appeal and return of jurisdiction to this court. That order was issued in error. See Britton v. Co-op Banking Group, 916 F.2d 1405 (9th Cir. 1990); see also In re Williams Sports Rentals, Inc., 2017 WL 4923337, at *2 (E.D. Cal. 2017). Because the issue of arbitrability — the only issue presented on appeal — is severable from the merits of the underlying dispute, see Moses H. Cone Memorial Hospital v. Mercury Construction, 460 U.S. 1, 21 (1983), and because no stay of proceeding has been entered, this court may proceed with case scheduling notwithstanding the pending appeal, see Britton, 916 F.2d at 1412. Accordingly, the February 20, 2020, order is vacated and the scheduling conference remains on calendar for February 27, 2020, at 11:00 a.m., in Sacramento, California, Courtroom 4, as originally ordered on February 13, 2020. The scheduling conference shall proceed on the joint case management report filed on January 31, 2020. Because the joint report was filed before defendants LMB and CPL appealed the order denying the motion to compel arbitration and stay proceedings, the parties shall be prepared to discuss the practical effect of the appeal on scheduling litigation in this court on the merits of the underlying claims and defenses. Dated: February 21, 2020 UNITED STATES MAGISTRATE JUDGE