Olney v. Job.Com, Inc.

Filing 23

ORDER signed by Magistrate Judge Gary S. Austin on 3/21/2013 granting 18 Motion for leave of court to file impleader third-party complaint. ( Scheduling Conference re-set for 5/29/2013 at 10:00 PM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PETER OLNEY,
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Plaintiff,

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v.

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JOB.COM INC. ,

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Defendant.
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1:12-cv-1724 LJO GSA
ORDER GRANTING MOTION FOR
LEAVE OF THE COURT TO FILE
IMPLEADER THIRD-PARTY COMPLAINT

(Doc. 18)

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I.

Introduction

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Pending before the court is Defendant, Job.com’s (“Defendant”) Motion to File an Third18
Party Complaint filed on February 1, 2013. (Doc. 18). Plaintiff, Peter Olney (“Plaintiff”) filed a
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non-opposition to the motion on February 20, 2013. (Doc. 21). The court examined the motion
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and determined that the matter was suitable for decision without oral argument pursuant to Local
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Rule 230(g). The hearing scheduled for March 15, 2013 was vacated. Upon a review of the
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motion and the third-party complaint, the motion is GRANTED.
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II.

Procedural Background

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Plaintiff filed a complaint against Defendant on October 19, 2012, alleging that Job.com
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violated the Telephone Consumer Protection Act (“TCPA”) by placing telephone calls to
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Plaintiff’s cellular telephone number. Job.com filed its Answer to the complaint on December 5,
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2012 and denied any violations of the TCPA.
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Joc.com provides web-based services for individuals who want to post their resume to

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search and apply for jobs. Job.com also provides individuals who register on their site with the

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option to be contacted by phone to receive information regarding educational opportunities. This

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service is optional. Job.com provides registrants with the opportunity to opt out of receiving

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these telephone calls. Job.com alleges that Plaintiff consented to receiving telephone calls

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regarding educational opportunities. It is believed that Plaintiff hired third parties, including

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Resumedirector.com and North America LiveCareer, Inc. and LiveCareer, Ltd to help him with

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his job search. Job.com alleges that acting pursuant to Plaintiff’s direction and control, these

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third parties registered Plaintiff on the job.com website but did not opt Plaintiff out of receiving

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the telephone communications for Job.com. Under this scenario, Plaintiff would have given his

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consent to the be called, through his agents, and would have no case against Job.com. If in the

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alternative, the proposed third parties did not have authority to register Plaintiff on the Job.com

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website, then the third parties would be liable to Job.com under several legal theories alleged in

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the third party complaint.

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Job.com argues that in light of the above, its claims against the proposed third party

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defendants are derivative to Plaintiff’s claims and arise out the same set of operative facts. As

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such, it should be permitted to file a third-party complaint naming the additional parties. Job.com

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also contends that permitting the filing of the third-party complaint would foster judicial

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economy as all issues would be addressed in one case rather than filing separate actions. Finally,

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permitting the filing of the third-party complaint would facilitate the discovery process.

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III.

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Fed.R.Civ.P. 14(a) provides for service of a third-party complaint upon a person not a

Discussion

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party to the action who is or may be liable to [the original defendant] for all or part of the claim

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against it. Defendant need not obtain leave of the court to serve and file a third-party complaint,

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if is it filed within 14 days after defendant serves its original answer to the complaint in the main

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action. Fed. R. Civ. Proc. 14(a)(1). In all other circumstances, leave of the court to serve and file

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a third party complaint must be sought by motion. Fed. R. Civ. Proc. 14(a)(1).

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The purpose of impleader is to promote judicial efficiency by eliminating the need for the
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defendant to bring a separate action against the parties secondarily or derivatively liable to the

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defendant on account of the plaintiff’s claim. Southwest Admin., Inc. v. Rozay’s Transfer, 791

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F. 2d 769, 777 (9th Cir. 1986). The decision whether to permit a third party claim under Rule 14

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is left to the sound discretion of the trial court. Id.

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Here, it appears that derivative liability may exist against the named third parties.

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Plaintiff has also filed a non-opposition to the motion. Since this case is in the early stages,

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permitting the filing of the third-party complaint will promote judicial economy and facilitate the

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resolution of these proceedings.

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IV. Conclusion

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Accordingly, Defendant’s Motion for Leave of the Court to File an a Third-Party

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Complaint is GRANTED. The Clerk of the Court is directed to docket the third-Party Complaint

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and issue summons. Job.com shall serve the parties named in the third-party complaint within

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twenty days after issuance of the summons.

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In light of the above, the scheduling conference scheduled for March 27, 2013 at 9:30

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a.m. is VACATED. A scheduling conference will be held on May 29th at 10:00 a.m. before the

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undersigned once the additional parties have been served. The parties are advised that they

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should file a joint scheduling report seven days prior to the scheduling conference.

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IT IS SO ORDERED.
Dated:
cf0di0

March 21, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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