District Court (Nev.) Refuses to Allow TCPA Defendant to Sue Daughter of TCPA Plaintiff Who Allegedly Provided Plaintiff’s Telephone Number in Connection with the Transaction that Lead to the Calls

. . .the Court finds that impleader is improper for three reasons: (1) Wasowicz’s liability for the TPC’s breach of contract, fraud, and negligent misrepresentation claims are in no way dependent upon Defendant’s liability under the TCPA, and Wasowicz’s liability for the TPC’s indemnification claim is dependent on only those calls made to Plaintiff Stephens and not to Plaintiff Gulley or the purported class members; (2) the likelihood that jurors would be distracted or confused by a “mini-trial” as to whether Wasowicz gave Defendant consent to contact the cell phone number of Plaintiff Stephens; and (3) the lack of prejudice to and ability of Defendant to bring a subsequent action on all four claims if Defendant is found liable in the original action.  As Defendant notes in their opposition, where a separate action would invite duplicative review of the facts and law and risk inconsistent judgments with the original action, then impleader is appropriate. . . . Here, three of the four claims brought in the TPC do not require resolution of Plaintiffs’ TCPA claims or analysis of the facts underlying them. These claims in the TPC—breach of contract, fraud, and negligent misrepresentation—relate only to obligations Wasowicz purportedly owed to Defendant in her consumer transaction with it and require resolution of areas of law not related to the TCPA. Moreover, these claims require an analysis of Wasowicz’s actions in dealing with Defendant whereas the claims in the original action require an analysis of Defendant’s actions in dealing with Plaintiffs. Thus, the only claim in the TPC that may invite duplicative review of the facts and law and risk inconsistent judgments is the TPC’s indemnification claim. In the original action, the question presented appears to be whether Stephens herself gave prior express consent to be contacted by Defendant for any one of the calls she received. By contrast, to determine whether Wasowicz is liable to Defendant for any of the calls placed to Plaintiff Stephens, the Court would have to ask the separate question of whether Wasowicz expressly gave Stephens’ phone number as her own phone number (or a number at which she could be contacted) to Defendant and whether this amounts to “prior express consent” to contact Stephens under the meaning of the TCPA.³ Moreover, even if a jury found that Wasowicz was not liable for Defendant’s calls to Stephens, this would not necessarily be inconsistent with a finding that Defendant was liable to Stephens.⁴ There are myriad factual situations that may prove Wasowicz did not cause Defendant’s actions against Stephens, any of which may be proven without rendering an inconsistent judgment.  Secondly, this is a purported class action. Therefore, in the event class certification occurs, any effort expended by Defendant at trial presenting evidence or testimony regarding whether Wasowicz breached her obligations to Defendant and misrepresented that Stephens’ number was her own will muddy the issues that are pertinent to the entire class. For instance, jurors may wrongly infer that evidence indicating Wasowicz gave consent to be contacted at Stephens’ number is an example as to why other class members were contacted about credit cards they did not in fact own when, in actuality, their cell phone numbers may have been reassigned from one of Defendant’s actual customers.  Finally, in the event Plaintiffs are successful in the original action, there is no evidence that there will be prejudice to Defendant if it brings a subsequent, separate action against Wasowicz.  Therefore, Plaintiffs’ Motion to Strike is granted.