Ellington v. First Premier Bank
MEMORANDUM signed by District Judge Aleta A. Trauger on 6/26/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
FIRST PREMIER BANK,
FIRST PREMIER BANK,
Third Party Plaintiff
Third Party Defendant
Pending before the court is a Motion to Strike Third Party Complaint (Docket No. 21), filed by
Plaintiff Ellington. For the reasons stated herein, Plaintiff’s Motion to Strike will be DENIED.
Plaintiff filed this action against Defendant First Premier Bank for alleged violations of the
Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Defendant violated the TCPA
by calling his cellular telephone number, through an automated telephone dialing system, in an attempt
to collect a debt, even after Plaintiff expressly revoked any previously perceived express consent to be
Defendant timely filed a Third Party Complaint (Docket No. 16) against Cassandra Whitaker,
alleging that she listed Plaintiff’s telephone number on her credit card application as her work number
and provided consent for Defendant to reach her at that number. The basis for the Third Party
Complaint is that if Defendant is liable to Plaintiff, then Ms. Whitaker is liable to Defendant.
Plaintiff claims that the Third Party Complaint should be stricken because it involves a separate
and distinct claim from Plaintiff’s claims against Defendant.1 Plaintiff also argues that Whitaker’s
liability to Defendant is not contingent or derivative of Defendant’s liability to Plaintiff and that
allowing the Third Party Complaint will cause confusion of the issues and prejudice to Plaintiff at trial.
Rule 14 of the Federal Rules of Civil Procedure provides that a defending party may, as a third
party plaintiff, sue a nonparty who is or may be liable to it for all or part of the claim against it. Such
a third party complaint may be filed without leave of court if it is filed within 14 days of serving the
original answer. Fed. R. Civ. P. 14(a)(1).2 Any party may move to strike the third party claim, to sever
it, or to try it separately. Fed. R. Civ. P. 14(a)(4).
Third-party pleading is appropriate only where the third party defendant’s liability to the third
party plaintiff is dependent on the outcome of the main claim. American Zurich Ins. Co. v. Cooper Tire
& Rubber Co., 512 F.3d 800, 805 (6th Cir. 2008). A defendant attempting to transfer the liability
asserted against him by the original plaintiff to the third party defendant is therefore the essential
criterion of a third-party claim. Id.
Here, Defendant’s claims against Whitaker arise directly from the allegations of Plaintiff’s
complaint against Defendant. The relief Defendant seeks against Whitaker is judgment for any
For example, Plaintiff’s claim against Defendant is a statutory claim, and
Defendant’s claim against Whitaker involves alleged breach of contract, misrepresentation and
Because Defendant filed its Third Party Complaint within the 14 days, the court is
not considering a motion for leave to file a third party complaint, and the considerations related to
whether to grant such leave, such as prejudice, do not apply.
“damages incurred as a result of Plaintiff’s lawsuit, including the amount of any judgment entered in
favor of Plaintiff against First Premier, as well as First Premier’s own attorneys’ fees and costs.”
(Docket No. 16.) As Plaintiff admits in his Memorandum, “First Premier, through its Third Party
Complaint, alleges that it is without fault in causing Plaintiff’s damages, and any liability it has to
Plaintiff should be attributed to Whitaker.” (Docket No. 22).
Thus, if Plaintiff’s claim against Defendant fails, then Defendant’s Third-Party Complaint is
moot. If Plaintiff’s claim against Defendant is established, then the court (or jury) will determine
whether Whitaker is liable to Defendant for the amount of Plaintiff’s claim.3 In other words,
Defendant’s measure of damages against Whitaker would be the amount of any judgment entered
against Defendant on Plaintiff’s claim.
Because the Third Party Complaint alleges that Whitaker caused the damage to Plaintiff, it is
distinguishable from the cases cited by Plaintiff. Here, the liability of Whitaker is contingent upon
whether Defendant is found to have violated the TCPA.
For these reasons, Plaintiff’s Motion to Strike Third Party Complaint (Docket No. 21) will be
DENIED. An appropriate Order shall be entered.
IT IS SO ORDERED.
ENTER this 26th day of June 2017.
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE
If Plaintiff succeeds on his claim of express revoked consent, for example, the trier
of fact will determine whether Whitaker is liable for that portion of any judgment against
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