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Peter Olney v. Job.Com Inc


March 21, 2013


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge


I. Introduction

Pending before the court is Defendant,'s ("Defendant") Motion to File an Third-Party Complaint filed on February 1, 2013. (Doc. 18). Plaintiff, Peter Olney ("Plaintiff") filed a non-opposition to the motion on February 20, 2013. (Doc. 21). The court examined the motion and determined that the matter was suitable for decision without oral argument pursuant to Local Rule 230(g). The hearing scheduled for March 15, 2013 was vacated. Upon a review of the motion and the third-party complaint, the motion is GRANTED.

II. Procedural Background

Plaintiff filed a complaint against Defendant on October 19, 2012, alleging that violated the Telephone Consumer Protection Act ("TCPA") by placing telephone calls to Plaintiff's cellular telephone number. filed its Answer to the complaint on December 5, 2012 and denied any violations of the TCPA. provides web-based services for individuals who want to post their resume to search and apply for jobs. also provides individuals who register on their site with the option to be contacted by phone to receive information regarding educational opportunities. This service is optional. provides registrants with the opportunity to opt out of receiving these telephone calls. alleges that Plaintiff consented to receiving telephone calls regarding educational opportunities. It is believed that Plaintiff hired third parties, including and North America LiveCareer, Inc. and LiveCareer, Ltd to help him with his job search. alleges that acting pursuant to Plaintiff's direction and control, these third parties registered Plaintiff on the website but did not opt Plaintiff out of receiving the telephone communications for Under this scenario, Plaintiff would have given his consent to the be called, through his agents, and would have no case against If in the alternative, the proposed third parties did not have authority to register Plaintiff on the website, then the third parties would be liable to under several legal theories alleged in the third party complaint. argues that in light of the above, its claims against the proposed third party defendants are derivative to Plaintiff's claims and arise out the same set of operative facts. As such, it should be permitted to file a third-party complaint naming the additional parties. also contends that permitting the filing of the third-party complaint would foster judicial economy as all issues would be addressed in one case rather than filing separate actions. Finally, permitting the filing of the third-party complaint would facilitate the discovery process.

III. Discussion

Fed.R.Civ.P. 14(a) provides for service of a third-party complaint upon a person not a party to the action who is or may be liable to [the original defendant] for all or part of the claim against it. Defendant need not obtain leave of the court to serve and file a third-party complaint, if is it filed within 14 days after defendant serves its original answer to the complaint in the main action. Fed. R. Civ. Proc. 14(a)(1). In all other circumstances, leave of the court to serve and file a third party complaint must be sought by motion. Fed. R. Civ. Proc. 14(a)(1).

The purpose of impleader is to promote judicial efficiency by eliminating the need for the defendant to bring a separate action against the parties secondarily or derivatively liable to the defendant on account of the plaintiff's claim. Southwest Admin., Inc. v. Rozay's Transfer, 791 F. 2d 769, 777 (9th Cir. 1986). The decision whether to permit a third party claim under Rule 14 is left to the sound discretion of the trial court. Id.

Here, it appears that derivative liability may exist against the named third parties. Plaintiff has also filed a non-opposition to the motion. Since this case is in the early stages, permitting the filing of the third-party complaint will promote judicial economy and facilitate the resolution of these proceedings.

IV. Conclusion

Accordingly, Defendant's Motion for Leave of the Court to File an a Third-Party Complaint is GRANTED. The Clerk of the Court is directed to docket the third-Party Complaint and issue summons. shall serve the parties named in the third-party complaint within twenty days after issuance of the summons.

In light of the above, the scheduling conference scheduled for March 27, 2013 at 9:30 a.m. is VACATED. A scheduling conference will be held on May 29th at 10:00 a.m. before the undersigned once the additional parties have been served. The parties are advised that they should file a joint scheduling report seven days prior to the scheduling conference.



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