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Stephens v. Comenity, LLC

United States District Court, D. Nevada

December 8, 2017

JENNIFER STEPHENS and CHRISTOPHER GULLEY on behalf of themselves, and all other similarly situated, Plaintiffs,
v.
COMENITY, LLC dba COMENITY BANK, Defendant. COMENITY LLC, Third-Party Plaintiff,
v.
JACKIE WASOWICZ, an individual, Third-Party Defendant.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Pending before this Court are four motions: Plaintiffs' Motion to Strike or Alternatively Sever the Third Party Complaint and Motion to Stay Filing of Responsive Pleading (“Plaintiffs' Motion to Strike”) (ECF No. 28); Defendant's Motion to Stay (“Motion to Stay”) (ECF No. 48); Plaintiffs' Motion for Leave to File Supplemental Declaration of Alexis M. Wood (“Motion to Supplement”) (ECF No. 79); and Defendant's Motion for Leave to File Counterclaims Against Plaintiff Jennifer Stephens (“Motion to File Counterclaims”) (ECF No. 80). The Court has reviewed the parties' respective responses (ECF Nos. 38, 50) and replies (ECF Nos. 39, 57).[1]

         For the reasons discussed below, Plaintiffs' Motion to Strike and Defendant's Motion to Stay are granted, and Plaintiffs' Motion to Supplement and Defendant's Motion to File Counterclaims are denied.

         II. BACKGROUND

         Plaintiffs Jennifer Stephens and Christopher Gulley initiated this class action based on violations of the Telephone Consumer Privacy Act (“TCPA”), 47 U.S.C. § 227 et seq., against Defendant Comenity LLC d/b/a Comenity Bank (“Comenity” or “Defendant') on March 6, 2017. (ECF No. 1.) Plaintiffs filed their first amended complaint (“FAC”) on July 27, 2017. (ECF No. 46.) The following facts are taken from the FAC.

         Plaintiffs allege that they do not have any credit cards associated with Comenity and, as a result, neither Plaintiff has provided their cell phone number to Defendant. However, both Plaintiffs purportedly received calls from Defendant. When Plaintiffs answered a call, there was a prolonged silence and delay prior to being connected to a live representative. Plaintiffs requested that Defendant stop calling their cell phones, but the calls continued. Plaintiffs purport to represent a class consisting of “persons within the United States who: (1) received a telephone call from Defendant or its agents; (2) on his or her cellular telephone number; (3) through the use of any automatic telephone dialing systems or artificial or prerecorded voice system as set forth in 47 U.S.C. § 227(b)(1)(A)(3); and (4) where Defendant has no record of prior express consent for such individual to make such call, within four years prior to the filing of the Complaint through the date of final approval.” (ECF No. 46 at ¶ 37.)

         Plaintiffs bring two claims: one for negligent violations of the TCPA and the other for knowing and/or willful violations of the TCPA.

         On April 25, 2017, Defendant filed its Third Party Complaint (“TPC”) against Jackie Wasowicz. (ECF No. 20.) In the TPC, Defendant alleges that Wasowicz, who is Plaintiff Stephens' daughter, provided Stephens' phone number as her own and indicated that Defendant could contact Wasowicz at that number to discuss her account. Defendant brings four claims against Wasowicz for indemnification, breach of contract, fraud and negligent misrepresentation.

         III. PLAINTIFFS' MOTION TO STRIKE (ECF No. 28)

         Plaintiffs move for an order striking the TPC against Wasowicz pursuant to Fed.R.Civ.P. 12(f) and 14(a) or, in the alternative, to either sever the TPC or stay the third party proceedings against Wasowicz so that she does not have to file a responsive pleading.[2] (ECF No. 28 at 2.) The Court agrees with Plaintiffs as to their first argument that the TPC should be stricken.

         A. Legal Standard

         “A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.” Fed.R.Civ.P. 14(a)(1). A third-party complaint must assert that “the third party's liability is in some way dependent on the outcome of the main claim” and is “secondary or derivative” to the third-party plaintiff's liability in the primary action. United States v. One 1977 Mercedes Benz, 708 F.2d 444, 452 (9th Cir. 1983). When deciding whether to allow a third-party complaint to proceed, the court must “consider whether the proposed third-party complaint alleges a cause of action for which relief may be granted.” See Helferich Patent Licensing, LLC v. Suns Legacy Partners, LLC, Lead No. CV 11-2304-PHX-NVW, 2013 WL 68610, at *2 (D. Ariz. Jan. 7, 2013); see also Irwin v. Mascott, 94 F.Supp.2d 1052, 1057-58 (N.D. Cal. 2000) (“It makes no sense to permit such a potentially prejudicial expansion of the case at the expense of [the plaintiffs], if the third-party plaintiffs do not have a valid theory of relief against the third-party defendants.”). Regardless, however, “[t]he decision to allow a third-party defendant to be impleaded under rule 14 is entrusted to the sound discretion of the trial court.” One 1977 Mercedes Benz, 708 F.2d at 452. Thus, a court should determine whether judicial efficiency will be promoted “by eliminating the necessity for the defendant to bring a separate action against a third individual who may be secondarily or derivatively liable to the defendant for all or part of the plaintiff's original claim.” Sw. Adm'rs, Inc. v. Rozay's Transfer, 791 F.2d 769, 777 (9th Cir. 1986). In making this determination, a court may consider four factors: (1) prejudice to the original plaintiff; (2) complication of issues at trial; (3) likelihood of trial delay; and (4) timeliness of the motion to implead. Irwin, 94 F.Supp.2d at 1056 (citing Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 439-40 (3d Cir. 1971)).

         B. ...


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