Harris v. Utopia Fitness, Inc.
Filing
18
Memorandum Opinion and Order denying 13 Motion to Dismiss filed by Utopia Fitness, Inc., 15 Motion to Strike filed by Joseph K Harris: Came on for consideration a motion to dismiss pursuant to Rule 12 (b) (6) and Rule 12 (b) (7) of the Federal Rules of civil Procedure, filed by defendant, utopia Fitness, Inc. and a motion to strike exhibit B of defendant's motion to dismiss, filed by plaintiff, Joseph K. Harris. A response was filed to both motions, and defendant filed a reply in support of its motion to dismiss. After considering the motions, responsive pleadings, plaintiff's complaint, and applicable legal authorities, the court concludes that both the motion to strike and the motion to dismiss should be denied. (See order for specifics.) (Ordered by Judge John McBryde on 10/3/2013) (mdf)
U.S. DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
OtJ'RT· .
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEXA
FORT WORTH DIVISION
i!"S '. '
FILED
OCT - 3 2013
--~
..
§
Plaintiff,
,
§
JOSEPH K. HARRIS,
I
i
co.\,
. CLERK, U.S. DISTRICT COURT
By_ _~ ~
_
I
L.-
Deputy
--..:-:..-_ _
§
§
VS.
§
NO. 4:13-CV-574-A
§
UTOPIA FITNESS,
INC. ,
§
§
Defendant.
§
MEMORANDUM OPINION
and
ORDER
Came on for consideration a motion to dismiss pursuant to
Rule 12 (b) (6) and Rule 12 (b) (7) of the Federal Rules of civil
Procedure, filed by defendant, utopia Fitness, Inc.j and a motion
to strike exhibit B of defendant's motion to dismiss, filed by
plaintiff, Joseph K. Harris.
A response was filed to both
motions, and defendant filed a reply in support of its motion to
dismiss.
After considering the motions, responsive pleadings,
plaintiff's complaint, and applicable legal authorities, the
court concludes that both the motion to strike and the motion to
dismiss should be denied.
1.
Plaintiff's Claims and the Grounds for the Motion to Dismiss
Plaintiff alleged the following in his original complaint:
Plaintiff entered into an agreement with defendant for fitness
training.
Plaintiff terminated his agreement the day after
entering it, without utilizing defendant's services.
Defendant
charged plaintiff's debit card after plaintiff requested that it
not be charged, and the payment was denied for insufficient
funds.
Defendant assigned the debt to Outsource Services, Inc.,
d/b/a Heritage Payment Recovery ("Heritage")
for collection.
Heritage then began calling plaintiff on his cell phone and
continued to call plaintiff's cell phone even though plaintiff
verbally told Heritage to stop calling and mailed a cease and
desist letter.
Heritage.
Plaintiff received at least six "robo-calls" from
Plaintiff claims that defendant is liable under the
Telephone Consumer Protection Act for the actions Heritage took
on defendant's behalf.
Defendant argues for dismissal pursuant to Rule 12(b) (6)
for
failure to state a claim upon which relief can be granted and for
dismissal pursuant to Rule 12(b) (7)
for failure to join an
indispensable party.
II.
Analysis
A.
Motion to Dismiss Pursuant to Rule 12(b) (6)
Rule 12(b) (6) of the Federal Rules of Civil Procedure allows
dismissal of an action if the plaintiff fails to state a claim
upon which relief may be granted.
2
Fed. R. civ. P. 12(b) (6).
Defendant argues that plaintiff's complaint should be dismissed
because plaintiff's claims against defendant are barred by a
confidential settlement agreement between plaintiff and Heritage.
However, no settlement agreement is mentioned in plaintiff's
compliant, and the court "will not look beyond the face of the
pleadings to determine whether relief should be granted based on
the alleged facts."
Cir. 1999).
Spivey v. Robertson, 197 F.3d 772, 774
(5th
Further, this argument would be more appropriate for
a motion for summary judgment.
However, as the court has not
given notice that it will consider extrinsic matters, the court
will not construe the instant motion to dismiss as a motion for
summary jUdgment.
Accordingly, defendant's motion to dismiss
pursuant to Rule 12(b) (6) should be denied.
B.
Motion to Dismiss Pursuant to Rule 12(b) (7)
Rule 12(b) (7) of the Federal Rules of civil Procedure allows
dismissal for failure to join a party under Rule 19.
civ. P. 12(b) (7).
Fed. R.
"Rule 19 provides for the joinder of all
parties whose presence in a lawsuit is required for the fair and
complete resolution of the dispute at issue."
Wingate, 327 F.3d 432, 438
19(a).
HS Res., Inc. v.
(5th Cir. 2003); Fed. R. Civ. P.
Rule 19 also "provides for the dismissal of litigation
that should not proceed in the absence of parties that cannot be
joined."
HS Res., Inc., 327 F.3d at 438; Fed. R. Civ. P. 19(b).
3
Resolution of a motion to dismiss for failure to join an
indispensable party involves a two-part inquiry.
Memphis, Tenn., 570 F.3d 625, 628
Hood v. City of
(5th Cir. 2009).
The court
first determines if the party should be added under the following
provisions of Rule 19(a):
(a) Persons Required to Be Joined if Feasible.
(1) Required Party. A person who is sUbject to
service of process and whose joinder will not
deprive the court of sUbject-matter jurisdiction
must be joined as a party if:
(A) in that person's absence, the court
cannot accord complete relief among
existing partiesj or
(B) that person claims an interest relating
to the sUbject of the action and is so
situated that disposing of the action in the
person's absence may:
(i) as a practical matter impair or
impede the person's ability to protect
the interestj or
(ii) leave an existing party subject to
a substantial risk of incurring double,
mUltiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. civ. P. 19 (a) (1) .
If the court concludes that a party is necessary following
the application of Rule 19(a) (1), a determination is then
required as to whether the party is "indispensable, that is,
whether litigation can be properly pursued without the absent
4
----_._---_._------_._-
party."
Hood, 570 F.3d at 629i see also Shelton v. Exxon Corp.,
843 F.2d 212, 218
(5th Cir. 1988).
In deciding whether to allow
the action to proceed the court considers the factors set forth
in Rule 19 (b) .
The movant bears the initial burden of demonstrating that an
absent person or entity is a required partYi if an initial
appraisal of the facts demonstrates that such is the case, the
burden is shifted to the party opposing joinder.
Hood, 570 F.3d
at 628.
Defendant argues that Heritage is a required party under
Rule 19.
Defendant asserts that Heritage is necessary for
complete resolution of the dispute in this action because
Heritage has a right of indemnity against plaintiff under the
confidential settlement agreement.
Defendant further claims that
pursuant to a debt collection agreement, Heritage has an
obligation to pay defendant's attorney's fees and other
litigation fees arising from this action, and that such
obligation, together with Heritage's right of indemnity against
plaintiff, gives Heritage a legally protected interest related to
the subject of this action.
Defendant also asserts that due to
Heritage's obligation to pay defendant's attorney's fees and
litigation costs, Heritage's absence will be prejudicial to
itself and to plaintiff and that such prejudice cannot be
5
lessened or avoided by any protective provisions or other
measures by the court.
Therefore, defendant claims that any
jUdgment rendered without Heritage will be inadequate.
Defendant
finally asserts that Heritage cannot be joined due to the
confidential settlement agreement between plaintiff and Heritage,
and that in the event of dismissal, plaintiff would still have an
adequate remedy because he has already received paYment under the
settlement with Heritage.
However, defendant has failed to carry its burden to show
that Heritage is a necessary party under Rule 19(a) (1).
It is
well-settled that Rule 19 does not require joinder of joint
tortfeasors, of a principal and agent, or of persons against whom
a party may have a claim for contribution or indemnity.
Nottingham v. Gen. Am. Commc'ns Corp., 811 F.2d 873, 880-81 (5th
Cir. 1987).
Accordingly, defendant's motion to dismiss pursuant
to Rule 12(b) (7) must be denied.
C.
Motion to strike Exhibit B of Motion to Dismiss
Plaintiff filed a motion to strike exhibit B of defendant's
motion to dismiss, which is a confidentiality agreement between
plaintiff and Heritage.
Plaintiff asserts that defendant has
violated the confidentiality provisions of the agreement by
failing to file it under seal or with redaction.
However, a
review of the agreement shows that defendant is not a signatory
6
to the agreement and therefore would not bound by any
confidentiality provisions therein.
no motion to seal the agreement.
Further, plaintiff has made
Plaintiff has also made no
showing that redaction is necessary under Rule 5.2 of the Federal
Rules of Civil Procedure or any other applicable rule or legal
authority.
Therefore, plaintiff's motion should be denied.
III.
Order
Therefore,
The court ORDERS that defendant's motion to dismiss be, and
is hereby, denied.
The court further ORDERS that plaintiff's motion to strike
defendant's exhibit B be, and is hereby, d
SIGNED October 3, 2013.
I
7
/
/
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?