We wrote about this issue last year, although the issue remains somewhat unsettled. (https://www.severson.com/hyman-s-j-and-figueroa-k-contribution-and-indemnity-for-wrong-number-calls-under-the-telephone-consumer-protection-act-vol-73-conf-cons-fin-l-q-84-fall-2019/)
In Anthony v. Progressive Leasing, No. 1:19-cv-04431-TWP-MJD, 2020 U.S. Dist. LEXIS 105846, at *5-8 (S.D. Ind. June 16, 2020), the District Court declined to allow a counter-claim for indemnity against a TCPA’s Plaintiff’s spouse who allegedly had provided the number.
In her complaint, Plaintiff brings a TCPA claim against Defendant alleging that Defendant repeatedly called Plaintiff on her cell phone number in its attempt to collect a debt from a third party, Mr. Anthony. [See Dkt. 1 at 2.] Plaintiff alleges that Defendant placed such calls using an automated telephonic dialing system. [Id. at 3.] Once Plaintiff told Defendant that the debt does not belong to her and to stop calling her, Defendant allegedly continued to call her telephone number. Defendant argues that the indemnification claim depends on the outcome of Plaintiff’s TCPA claims because “Mr. Anthony provided the (317) XXX-2953 number to [Defendant]: (1) as his home telephone number in his lease application and (2) as Plaintiff’s number, after he made her an authorized third-party on the account.” [ Dkt. 19 at 9.] Defendant further argues that its third-party complaint “seeks redress against Mr. Anthony for damages it incurred as a result of Plaintiff’s lawsuit.” [ Dkt. 22 at 6.] In response, Plaintiff contends that Defendant’s proposed third-party claims against Mr. Anthony are not proper because Plaintiff’s TCPA claim does not relate to the allegations in the third-party complaint, including Mr. Anthony’s obligation to “pay the jewelry bill at issue in the proposed third-party complaint, payments made and not made on the debt, services or products provided by Defendant, interest and penalties on the debt, and the like.” [ Dkt. 21 at 9.] Defendant’s proposed third-party complaint purports to state an indemnification claim against Mr. Anthony arising out of the allegations that he provided Plaintiff’s (317) XXX-2953 number to Defendant, and expressly consented that he could be called at that number to discuss his account, including for the purpose of collecting any unpaid debt. [See Dkt. 18-1 at 8.] However, as Plaintiff correctly argues, Defendant’s third-party claims “are completely unaffected by the elements needed to prove the TCPA claim,” and the “TCPA is wholly unconcerned with 2 Plaintiff asserts that Defendant’s third-party claims are governed by the arbitration provision in the lease agreement. Plaintiff states that “[o]n or about November 18, 2019, the proposed Third-Party Defendant, David Anthony, filed an Arbitration Demand in the American Arbitration Association (“AAA”) against Defendant for violations of the TCPA,” and that Mr. Anthony brought his claims in the AAA against Defendant because they have a binding arbitration agreement requiring the parties to arbitrate according to their lease agreement. [ Dkt. 21 at 2.] Defendant is correct that Plaintiff lacks standing to “invoke the arbitration agreement between Progressive Leasing and Mr. Anthony as a basis to deny Progressive Leasing’s Motion.” [ Dkt. 22 at 2.] the purpose of calls, their content, whether the called party owes a debt to the caller, and timing so long as they are not made for an emergency, use an ATDS or pre-recorded voice, and continue after consent is revoked.” [ Dkt. 21 at 10.] While Defendant alleges that Mr. Anthony “expressly consented” to be reached at Plaintiff’s telephone number to collect any unpaid debt, Plaintiff’s allegations against Defendant is that it violated the TCPA by continuing to call her using an automated telephonic dialing system after she revoked consent. Further, indemnification claims are not available under the TCPA. See Kim v. Cellco P’ship, 2016 WL 871256, at *3 (N.D. Ind. Jan. 29, 2016) (holding that there is “no federal cause of action for indemnification under the TCPA”); Garrett v. Ragle Dental Lab., Inc., 2011 WL 2637227, at *1 (N.D. Ill. July 6, 2011) (“The TCPA does not create an affirmative cause of action for contribution or indemnification[and] federal common law does not recognize such a cause of action.”); see alsoDultra v. U.S. Med. Home, Inc., 2016 WL 1213763, at *5 (N.D. Ill. Mar. 28, 2016) (denying leave to file third-party complaint where the defendant did not allege that the third-party defendants were derivatively liable to defendant for the plaintiff’s claims); Royal Ins. Co. v. Cathy Daniels, Ltd., 116 F.R.D. 670, 671 (S.D.N.Y. 1987) (notingthat a third-party indemnification claim must be “more than a tenuous relationship between the liability of the third-party and the outcome of the main claim”). Defendant’s indemnification claim against Mr. Anthony does not rest upon Plaintiff’s TCPA claim and is an improper third-party claim under Rule 14(a). Accordingly, the Court DENIES Defendant’s motion.