United States District Court, N.D. California
ORDER GRANTING LEAVE TO FILE THIRD PARTY COMPLAINT Re: Dkt. No. 37
JAMES DONATO, District Judge.
This case is a putative class action against defendant Healthcare Revenue Recovery Group, LLC ("HRRG") for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. ("TCPA"). Plaintiff Jasminda Webb alleges that HRRG used an Automatic Telephone Dialing System ("ATDS") to call her several times on her cell phone without her consent in violation of the TCPA. HRRG alleges that it was misled into calling Ms. Webb by her adult son, Arias Variste, who gave Ms. Webb's phone numbers to a hospital where he received care. HRRG now asks the Court for leave under Fed.R.Civ.P. 14(a)(1) to implead Mr. Variste in the case as a third-party defendant for indemnity and negligent misrepresentation. See Dkt. No. 37. The Court held a hearing on HRRG's motion on June 11, 2014. While the Court is sympathetic to plaintiff's points in opposition, particularly with respect to HRRG's delay in seeking impleader, and has concerns about the potential procedural impact of the proposed third-party complaint in this putative class action, it grants the motion for the sake of efficiency and to conserve judicial resources.
HRRG is a collection agency that collects healthcare debt. On February 19, 2013, Plaintiff Webb filed a class action complaint alleging that HRRG violated the TCPA when it called her cell phone for a non-emergency purpose without her prior express consent. See Dkt. No. 1. The complaint alleges that HRRG made two calls. Id. Ms. Webb alleges that she does not owe HRRG any debt, and never provided her cell phone number to HRRG for any purpose. Id.
On May 7, 2014, the day before Ms. Webb's deadline to file her motion for class certification, HRRG filed this Motion for Leave to File a Third Party Complaint. HRRG moves to join Plaintiff's adult son, Mr. Variste, as a third-party defendant. Dkt. No. 37. Mr. Variste received hospital care in September 2011, and allegedly stated in his agreement and release form with the hospital that Ms. Webb's cell phone number was his residence number and consented to be called at that number. Id. at 4. Mr. Variste did not indicate that the residence number he provided was actually a cell phone number belonging to his mother, Ms. Webb. Id. According to HRRG, Mr. Variste misled HRRG into calling Ms. Webb's cell phone, and so he should liable for any losses sustained by HRRG arising from Ms. Webb's claims. Id. at 4-5.
HRRG states that it first learned it had been calling Ms. Webb's cell phone - not Mr. Variste's residence - when it received a demand letter from Ms. Webb's counsel, after which it stopped calling her cell phone. Id. HRRG alleges that Ms. Webb has sued approximately nine other collection agencies, and that she did not know HRRG had called her until her lawyers, who were monitoring her voicemail for evidence against other collection agencies, mentioned it to her. Id. at 5.
I. Leave to File Third-Party Complaint
Impleader under Rule 14 is limited to claims against third parties derivatively based on the original plaintiff's claim. United States v. One 1977 Mercedes Benz, 708 F.2d 444, 452 (9th Cir. 1983), cert. denied, Webb v. U.S., 464 U.S. 1071, 104 S.Ct. 981, 79 L.Ed.2d 217 (1984). A defendant must obtain leave to file a third-party complaint when more than 14 days have passed since the original answer was served. Fed.R.Civ.P. 14(a)(1).
"The decision whether to implead a third-party defendant is addressed to the sound discretion of the trial court." Southwest Adm'rs, Inc. v. Rozay's Transfer, 791 F.2d 769, 777 (9th Cir. 1986). In deciding whether to allow a third-party complaint, courts consider: "(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." See Irwin v. Mascott, 94 F.Supp.2d 1052, 1056 (N.D. Cal. 2000); Joe Hand Prods., Inc. v. Davis, No. C 11-6166 CW, 2012 WL 6035538, at *1 (N.D. Cal. Dec. 4, 2012). In proper circumstances, impleading a third party will "promote judicial efficiency 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." Southwest Adm'rs, 791 F.2d at 777.
HRRG answered the complaint on April 9, 2013, and filed the motion to implead on May 7, 2014. Therefore, HRRG requires leave of the Court to proceed with the third-party complaint. While plaintiff's motion to certify a class is pending, no fact or expert discovery deadlines, dispositive motion cut-off or trial dates have been set.
A. Prejudice to Plaintiff
Ms. Webb has failed to show that she will be prejudiced by allowing impleader. Ms. Webb's main prejudice argument is that impleader of her son as a third-party defendant is a pressure tactic intended to dissuade her from pursuing her claims because victory would impose liability on her son. While the Court shares some concern about the point of impleader in this case, HRRG's possible motives are not a recognized form of prejudice in this context. The analysis of prejudice with respect to Rule 14(a) typically looks at whether allowing impleader would derail case management dates and result in unnecessary delay of trial or other resolution. See, e.g., Universal Green Solutions, LLC v. VII Pac Shores Investors, LLC, Case No. C-12-05613-RMW, 2013 WL 5272917, at *2 (N.D. Cal. Sept. 18, 2013); Green Valley Corp. v. Caldo Oil Co., No. 5:09-CV-04028-LHK, 2011 WL 3501712, at *8-9 (N.D. Cal. Aug. 10, 2011). Here, granting HRRG's motion will not impact key case management deadlines or trial because they have not yet been set. In addition, allowing the third-party ...