McSherry v. Capital One FSB

236 F.R.D. 516, 2006 U.S. Dist. LEXIS 34142, 2006 WL 1420839
CourtDistrict Court, W.D. Washington
DecidedMay 24, 2006
DocketNo. C05-1669C
StatusPublished
Cited by8 cases

This text of 236 F.R.D. 516 (McSherry v. Capital One FSB) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McSherry v. Capital One FSB, 236 F.R.D. 516, 2006 U.S. Dist. LEXIS 34142, 2006 WL 1420839 (W.D. Wash. 2006).

Opinion

ORDER

COUGHENOUR, District Judge.

I. INTRODUCTION

This matter has come before the Court on Plaintiffs’ motion to strike Capital One’s third-party complaint and Capital One’s motion for leave to file the third-party complaint. Having carefully considered the papers filed by the parties in support of and in opposition to the motion, the Court has determined that no oral argument shall be necessary. For the reasons that follow, Plaintiffs’ motion is GRANTED and Capital One’s motion is DENIED.

II. BACKGROUND

Plaintiffs brought this action for damages stemming from Defendants’ alleged violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., the Fan-Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667e, and “of state law obligations brought as supplemental ' claims.” (Compl.112.) Plaintiffs allege that Defendants Capital One and Experian wrongfully reported false information about Plaintiff William McSherry, Jr.’s creditworthiness and that Defendant Attention LLC wrongfully attempted to pursue collection actions against Plaintiff McSherry, Jr.

According to several documents in the record, including Plaintiffs’ complaint, it appears that the debt allegedly attributed to Plaintiff William McSherry, Jr., may have been incurred by Plaintiff’s father, William McSher-ry, Sr. (See, e.g., Compl. 1113.)

Defendant Experian filed its answer on November 10, 2005. Capital One filed its answer on November 30, 2005. Attention LLC filed its answer on January 4, 2006. According to a case scheduling order entered by the Court, the parties’ “pleading amend-menV3rd party action” was due by March 24, 2006. Defendant Capital One filed a third-party complaint against Plaintiffs father, Mr. McSherry, Sr. on March 24, 2006. Less than one week later, Plaintiffs filed the instant motion to strike the third-party complaint.

III. ANALYSIS

A. Timeliness

Capital One filed its third-party complaint against Mr. McSherry, Sr., without an accompanying motion to do so because it interpreted this Court’s case scheduling order setting the March 24, 2006 deadline as an order modifying Rule 14(a) of the FEDERAL RULES OF CIVIL PROCEDURE. This rule provides in relevant part that

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of [519]*519the plaintiffs claim against the third-party-plaintiff. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action.

Fed. R. Crv. P. 14(a).

This rule permits third-party complaints to be filed without leave of court only in the ten-day window after the would-be third-party plaintiff files its answer in the original action. The case scheduling order entered by this Court permits parties to move to file third-party complaints until the pleading amendment/third-party practice deadline. Motions to file third-party complaints made after this deadline must meet not only the standards relevant to the Rule 14(a) substance of the motion, but also meet Rule 16(b)’s requirement of a showing of good cause why the late-filed motion should be permitted.

In the present case, because Defendants appear to have made a good-faith error in interpreting the interaction between the Court’s case scheduling order and Rule 14(a), the Court will construe Defendants’ filing of the third-party complaint as their motion for leave to file said complaint. Because the “motion” was timely filed, Defendants need not meet the requirements of Rule 16(b).

B. Compliance with Rule H(a)

“[W]hile Rule 14 provides the procedural mechanism for the assertion of a claim for contribution or indemnity, there must also exist a substantive basis for the third-party defendant’s liability.” Kim v. Fujikawa, 871 F.2d 1427, 1434 (9th Cir.1989). The rule itself specifies that the defending party may only use the rule to implead “a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiffs claim against the third-party plaintiff.” Fed. R. Civ. P. 14(a). This language is generally understood to mean that

[impleader] must involve an attempt to pass on to the third party all or part of the liability asserted against the defendant. Thus, it must be an assertion of the third-party defendant’s derivative liability to the third-party plaintiff. An impleader claim cannot be used to assert any and all rights to recovery arising from the same transaction or occurrence as the underlying action.

3 James Wm. Moore Et Al., Moore’s Federal Practice § 14.04[3][a] (Matthew Bender 3d ed.1999).

In other words, in order to be permitted to assert a third-party complaint against Mr. McSherry, Sr., Defendant Capital One must show that it has the right to sue Mr. McSher-ry, Sr., for derivative liability for Plaintiffs’ claims against it.

Plaintiffs’ complaint alleges that Capital One is a “furnisher” of information under the FCRA (Compl.U 6) and that it is also a “creditor” under TILA (Compl.U 8). The complaint makes the following claims against Defendant Capital One: (1) willful and/or negligent violation of the FCRA provisions governing the disclosure of consumer reports, 15 U.S.C. § 1681b, and the responsibilities of furnishers of information to consumer reporting agencies; (2) defamation of Plaintiffs by publishing to third parties false information about their creditworthiness; (3) violation of the Fair Credit Billing Act; and (4) invasion of Plaintiffs’ privacy. (Compl.U 26.) Plaintiffs allege that their “creditworthiness and privacy have been repeatedly compromised” by Defendants’ acts and omissions. (Compl.U 12.) More particularly, Plaintiffs claim that they “repeatedly disputed information reported or furnished regarding their creditworthiness that associated Mr. McSherry’s creditworthiness with his father, to no avail” (Compl.U 13); that “Capital One has a policy of refusing to properly investigate and/or take action with regard to the erroneous association of family members with their children” (Compl.U 14); that despite Plaintiffs’ repeated attempts to correct the information, “Capital One continued to wrongfully report false information regarding his creditworthiness” (Compl.U 15); and that “Capital One failed to conduct reasonable investigation(s) of plaintiffs claims” (Compl.U 22).

[520]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Keith v. Data Enters.
27 Neb. Ct. App. 23 (Nebraska Court of Appeals, 2019)
Keith v. Data Enterprises, Inc.
27 Neb. Ct. App. 23 (Nebraska Court of Appeals, 2019)
Auto-Owners Insurance v. Ace Electrical Service, Inc.
648 F. Supp. 2d 1371 (M.D. Florida, 2009)
Ameriquest Mortgage Co. v. Northwest Title & Escrow Corp.
589 F. Supp. 2d 987 (N.D. Illinois, 2008)
Walker v. Option One Mortgage Corp.
649 S.E.2d 233 (West Virginia Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
236 F.R.D. 516, 2006 U.S. Dist. LEXIS 34142, 2006 WL 1420839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcsherry-v-capital-one-fsb-wawd-2006.