Cross v. Infinity Energy, Inc.
Filing
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ORDER Granting Defendants' 21 Unopposed Motion for Leave to File Third Party Complaint Against Virtual Sales Solutions. Defendants must separately file the Third-Party Complaint, previously filed as "INFY Marketing, LLC's Third-Party Complaint Against Virtual Sales Solutions" (Doc. No. 21-2 at 50), on the docket within three (3) days of this Order. Signed by Judge Michael M. Anello on 4/25/2017. (ag)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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PATRICK CROSS, individually and on
behalf of all others similarly situated,
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Case No.: 16cv2527-MMA (JLB)
ORDER GRANTING DEFENDANTS’
UNOPPOSED MOTION FOR LEAVE
TO FILE THIRD PARTY
COMPLAINT AGAINST VIRTUAL
SALES SOLUTIONS
Plaintiff,
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v.
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INFINITY ENERGY, INC.; and INFY
MARKETING, LLC,
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[Doc. No. 21]
Defendants.
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Plaintiff Patrick Cross (“Plaintiff”) filed a First Amended Class Action Complaint
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(“FAC”) against Defendants Infinity Energy, Inc. (“Infinity”) and INFY Marketing, LLC
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(“INFY,” collectively “Defendants”) on October 10, 2016, alleging violations of the
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Telephone Consumer Protection Act, 47 U.S.C. § 277, et seq. (“TCPA”). See Doc. No.
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1. On February 1, 2017, Infinity filed an answer to Plaintiff’s FAC. See Doc. No. 6. On
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February 7, 2017, INFY filed an answer to Plaintiff’s FAC. See Doc. No. 8. Defendants
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now move for leave to file a Third-Party Complaint against Virtual Sales Solutions. See
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Doc. No. 21. On April 24, 2017, Plaintiff Patrick Cross filed a statement of non-
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opposition regarding Defendants’ motion. See Doc. No. 22. For the reasons set forth
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below, the Court GRANTS Defendants’ motion.
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16cv2527-MMA (JLB)
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DISCUSSION
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Federal Rule of Civil Procedure 14(a) provides, “[a] defending party may, as third-
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party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to
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it for all or part of the claim against it.” Fed. R. Civ. P. 14(a). However, “the third-party
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plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint
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more than 14 days after serving its original answer.” Fed. R. Civ. P. 14(a). “The purpose
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of this rule is to promote judicial efficiency by eliminating the necessity for the defendant
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to bring a separate action against a third individual who may be secondarily or
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derivatively liable to the defendant for all or part of the plaintiff’s original claim.”
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Southwest Admin., Inc. v. Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir. 1986). The
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decision whether to permit a third party claim under Rule 14 is left to the “sound
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discretion of the trial court.” Id.
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Here, the Court finds the interests of justice are served by permitting Defendants to
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file a Third-Party Complaint against Virtual Sales Solutions (“VSS”). INFY entered into
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a contract with VSS in order for VSS to provide marketing solicitation services to INFY.
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See Doc. No. 21-1 at 2. Pursuant to the parties’ contract, “VSS expressly agreed to
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indemnify INFY and Infinity. . . for all claims and damages arising out of VSS[’s]
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performance of its marketing duties contemplated by the Agreement.” Id. Defendants
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contend that pursuant to the indemnity provisions of the contract, VSS is responsible for
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any alleged violation of the TCPA, and any damages flowing therefrom. See id. Thus,
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permitting Defendants to file a Third-Party Complaint eliminates the need for Defendants
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to bring a separate action against VSS. See Southwest, 791 F.2d at 777. Additionally,
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Plaintiff does not oppose the filing of a Third-Party Complaint in this action. See Doc.
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No. 22. Finally, although Defendants technically filed the instant motion after the March
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29, 2017 deadline to join parties, amend pleadings, or to file additional pleadings as set
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forth in the Scheduling Order (Doc. No. 17), Defendants’ motion is well in advance of
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the April 3, 2018 trial date. As such, the Court GRANTS Defendants’ motion.
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16cv2527-MMA (JLB)
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CONCLUSION
For the reasons set forth above, the Court VACATES the previously scheduled
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hearing date and GRANTS Defendants’ motion for leave to file a Third-Party Complaint
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against Virtual Sales Solutions. Defendants must separately file the Third-Party
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Complaint, previously filed as “INFY Marketing, LLC’s Third-Party Complaint Against
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Virtual Sales Solutions” (Doc. No. 21-2 at 50), on the docket within three (3) days of this
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Order.
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IT IS SO ORDERED.
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Dated: April 25, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge
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16cv2527-MMA (JLB)
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