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Tucker v. Credit One Bank, N.A.

United States District Court, W.D. Kentucky, Owensboro Division

June 14, 2018

JEFF TUCKER PLAINTIFF
v.
CREDIT ONE BANK, N.A. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. Brent Brennenstuhl United States Magistrate Judge.

         BACKGROUND

         Defendant, Credit One Bank, N.A. (“Credit One”), has moved the Court, pursuant to Fed.R.Civ.P. 14(a), for leave to file a third-party complaint against Jessica Tucker a/k/a Jessica Patino (Patino) (DN 33). Plaintiff, Jeff Tucker, has filed a response in opposition to the motion (DN 36), and Credit One has filed a reply in support of its motion (DN 38). For the reasons set forth below, the Court modifies the applicable scheduling order deadline and grants Credit One's motion.

         NATURE OF THE MOTION

         The complaint alleges that Credit One used an “automatic telephone dialing system” to call Tucker's cellular telephone No. hundreds of times over a period of months in an attempt to collect a credit card debt from someone named “Sherry, ” who he does not know (DN 1 PageID # 1-7). Tucker claims that shortly after the calls began he informed Credit One's agent that he was not the individual they were looking for and to please stop calling his cell phone No. (Id.). In Count I, Tucker claims that Credit One willfully violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) for each of the auto-dialer calls made to his cellular telephone after he notified Credit One that Tucker wished for the calls to stop (Id. PageID # 6). Tucker also alleges that Credit One violated the TCPA by repeatedly placing non-emergency telephone calls to his cellular telephone “using an automatic telephone dialing system or prerecorded or artificial voice without” his prior express consent (Id. PageID # 7). The complaint seeks statutory, punitive, actual, and treble damages as well as enjoinder for alleged violations of the TCPA (DN 1 PageID # 1-7).

         Credit One seeks leave to file a third-party complaint against Patino (DN 33 PageID # 105-114). The proposed third-party complaint asserts claims of negligent misrepresentation and contractual indemnification and seeks a judgment of contribution and/or indemnification against Patino in the full amount of any judgment that Tucker may obtain against Credit One (DN 33 PageID # 105-114).

         ARGUMENTS OF THE PARTIES

         A.

         The scheduling order established a deadline of October 31, 2017 for filing motions to join additional parties (DN 18 PageID # 61). Both parties recognize that the Court must amend this scheduling order deadline before Credit One may seek leave to file the proposed third-party complaint against Patino. See Fed.R.Civ.P. 16(b)(4). The parties agree, the burden rests with Credit One to demonstrate that “good cause” exists to modify this scheduling order deadline. Further, the parties agree that the primary measure of this standard will be Credit One's diligence and an additional consideration will be possible prejudice to Tucker. Before discussing the parties' arguments, the Court will summarize the pertinent information that ostensibly is not disputed by either party.

         Tucker's daughter, Patino, applied for a credit card with Credit One on November 1, 2016 (DN 33 PageID # 105-09; DN 36 PageID # 151-54). Credit One approved Patino's application and then mailed to the address she provided in her application a credit card and Cardholder Agreement (Id.; and DN 33-1 Exhibit A).

         On November 14, 2016, Patino called Credit One's telephone account management system for the purpose of completing the account verification process and activating her credit card (Id.). During this telephone call Patino added as her secondary contact No. the cell phone No. at issue in this case (“the -5400 number”) (Id.). Patino accomplished this task by selecting a prompt to update her account information and then manually entering the 10-digit telephone No. (Id.).

         In January of 2017, Patino apparently defaulted on her payments to Credit One (Id.). Credit One then began calling the -5400 No. in an attempt to reach Patino (Id.).

         After being served with Tucker's complaint, Credit One conducted an investigation that gave rise to the above information (Id.). On July 31, 2017, counsel for the parties conducted a Rule 26(f) planning meeting (DN 13). During the meeting, Credit One's counsel advised Tucker's counsel that the calls Tucker received were intended for his 22 year old daughter, Patino, who had defaulted on her payments to Credit One (Id.). On August 14, 2017, both parties filed Rule 26 initial disclosure statements that identified Patino as an individual likely to have discoverable information (DN 16, 17). Notably, Tucker's initial disclosure statement provided his counsel's, not Patino's, address and telephone No. (DN 16 PageID # 52). On November 3, 2017, Tucker served responses to Credit One's interrogatories (Id.; and DN 36-1 PageID # 161). His answer to Interrogatory No. 10 provided an address for Patino (Id.; and DN 36-1 PageID # 161).

         1. Credit One's Argument

         Credit One asserts that it did not have the information necessary to file a third-party complaint against Patino until it completed an internal investigation, conducted written discovery, and deposed Tucker and his wife on April 26, 2018 (DN 33 PageID # 108-14). Credit One contends that during the depositions several issues were clarified regarding the -5400 No. and, despite Tucker and his wife's refusal to provide Patino's current phone No. and address, Credit One finally obtained enough information to enable it to serve Patino (Id.). Credit One asserts that its attempt to obtain Patino's current phone No. and address through an interrogatory to Tucker had been unsuccessful (Id.).

         Credit One indicates the April 26, 2018 depositions revealed that Tucker's wife, who is not a party to this case, was the primary user of the -5400 No. when their daughter, Patino, provided the No. to Credit One on November 14, 2016 (Id.). Tucker's wife claimed not to have given Patino permission to use the -5400 No. to receive calls, but acknowledged being aware of at least one other occasion where Patino provided that No. to a third-party and indicated that she could be contacted at the No. (Id.). ...


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