Cross v. Infinity Energy, Inc.

Filing 23

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICK CROSS, individually and on behalf of all others similarly situated, 12 Case No.: 16cv2527-MMA (JLB) ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTION FOR LEAVE TO FILE THIRD PARTY COMPLAINT AGAINST VIRTUAL SALES SOLUTIONS Plaintiff, 13 v. 14 INFINITY ENERGY, INC.; and INFY MARKETING, LLC, 15 16 [Doc. No. 21] Defendants. 17 18 Plaintiff Patrick Cross (“Plaintiff”) filed a First Amended Class Action Complaint 19 (“FAC”) against Defendants Infinity Energy, Inc. (“Infinity”) and INFY Marketing, LLC 20 (“INFY,” collectively “Defendants”) on October 10, 2016, alleging violations of the 21 Telephone Consumer Protection Act, 47 U.S.C. § 277, et seq. (“TCPA”). See Doc. No. 22 1. On February 1, 2017, Infinity filed an answer to Plaintiff’s FAC. See Doc. No. 6. On 23 February 7, 2017, INFY filed an answer to Plaintiff’s FAC. See Doc. No. 8. Defendants 24 now move for leave to file a Third-Party Complaint against Virtual Sales Solutions. See 25 Doc. No. 21. On April 24, 2017, Plaintiff Patrick Cross filed a statement of non- 26 opposition regarding Defendants’ motion. See Doc. No. 22. For the reasons set forth 27 below, the Court GRANTS Defendants’ motion. 28 /// -1- 16cv2527-MMA (JLB) 1 DISCUSSION 2 Federal Rule of Civil Procedure 14(a) provides, “[a] defending party may, as third- 3 party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to 4 it for all or part of the claim against it.” Fed. R. Civ. P. 14(a). However, “the third-party 5 plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint 6 more than 14 days after serving its original answer.” Fed. R. Civ. P. 14(a). “The purpose 7 of this rule is to promote judicial efficiency by eliminating the necessity for the defendant 8 to bring a separate action against a third individual who may be secondarily or 9 derivatively liable to the defendant for all or part of the plaintiff’s original claim.” 10 Southwest Admin., Inc. v. Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir. 1986). The 11 decision whether to permit a third party claim under Rule 14 is left to the “sound 12 discretion of the trial court.” Id. 13 Here, the Court finds the interests of justice are served by permitting Defendants to 14 file a Third-Party Complaint against Virtual Sales Solutions (“VSS”). INFY entered into 15 a contract with VSS in order for VSS to provide marketing solicitation services to INFY. 16 See Doc. No. 21-1 at 2. Pursuant to the parties’ contract, “VSS expressly agreed to 17 indemnify INFY and Infinity. . . for all claims and damages arising out of VSS[’s] 18 performance of its marketing duties contemplated by the Agreement.” Id. Defendants 19 contend that pursuant to the indemnity provisions of the contract, VSS is responsible for 20 any alleged violation of the TCPA, and any damages flowing therefrom. See id. Thus, 21 permitting Defendants to file a Third-Party Complaint eliminates the need for Defendants 22 to bring a separate action against VSS. See Southwest, 791 F.2d at 777. Additionally, 23 Plaintiff does not oppose the filing of a Third-Party Complaint in this action. See Doc. 24 No. 22. Finally, although Defendants technically filed the instant motion after the March 25 29, 2017 deadline to join parties, amend pleadings, or to file additional pleadings as set 26 forth in the Scheduling Order (Doc. No. 17), Defendants’ motion is well in advance of 27 the April 3, 2018 trial date. As such, the Court GRANTS Defendants’ motion. 28 /// -2- 16cv2527-MMA (JLB) 1 2 CONCLUSION For the reasons set forth above, the Court VACATES the previously scheduled 3 hearing date and GRANTS Defendants’ motion for leave to file a Third-Party Complaint 4 against Virtual Sales Solutions. Defendants must separately file the Third-Party 5 Complaint, previously filed as “INFY Marketing, LLC’s Third-Party Complaint Against 6 Virtual Sales Solutions” (Doc. No. 21-2 at 50), on the docket within three (3) days of this 7 Order. 8 9 IT IS SO ORDERED. 10 11 12 13 14 Dated: April 25, 2017 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 16cv2527-MMA (JLB)

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