In Ellington v. First Premier Bank, 2017 WL 2733936, at *1–2 (M.D.Tenn., 2017), Judge Trauger permitted a third party counter-claim to proceed against the party who provided the telephone number that the TCPA defendant dialed.
Plaintiff filed this action against Defendant First Premier Bank for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Defendant violated the TCPA by calling his cellular telephone number, through an automated telephone dialing system, in an attempt to collect a debt, even after Plaintiff expressly revoked any previously perceived express consent to be called.   Defendant timely filed a Third Party Complaint (Docket No. 16) against Cassandra Whitaker, alleging that she listed Plaintiff’s telephone number on her credit card application as her work number and provided consent for Defendant to reach her at that number. The basis for the Third Party Complaint is that if Defendant is liable to Plaintiff, then Ms. Whitaker is liable to Defendant. . . .Third-party pleading is appropriate only where the third party defendant’s liability to the third party plaintiff is dependent on the outcome of the main claim. American Zurich Ins. Co. v. Cooper Tire & Rubber Co., 512 F.3d 800, 805 (6th Cir. 2008). A defendant attempting to transfer the liability asserted against him by the original plaintiff to the third party defendant is therefore the essential criterion of a third-party claim. Id.  Here, Defendant’s claims against Whitaker arise directly from the allegations of Plaintiff’s complaint against Defendant. The relief Defendant seeks against Whitaker is judgment for any “damages incurred as a result of Plaintiff’s lawsuit, including the amount of any judgment entered in favor of Plaintiff against First Premier, as well as First Premier’s own attorneys’ fees and costs.” (Docket No. 16.) As Plaintiff admits in his Memorandum, “First Premier, through its Third Party Complaint, alleges that it is without fault in causing Plaintiff’s damages, and any liability it has to Plaintiff should be attributed to Whitaker.” (Docket No. 22).  Thus, if Plaintiff’s claim against Defendant fails, then Defendant’s Third-Party Complaint is moot. If Plaintiff’s claim against Defendant is established, then the court (or jury) will determine whether Whitaker is liable to Defendant for the amount of Plaintiff’s claim.3 In other words, Defendant’s measure of damages against Whitaker would be the amount of any judgment entered against Defendant on Plaintiff’s claim.  Because the Third Party Complaint alleges that Whitaker caused the damage to Plaintiff, it is distinguishable from the cases cited by Plaintiff. Here, the liability of Whitaker is contingent upon whether Defendant is found to have violated the TCPA.