Federal Judiciary

Plaintiff's Motion to Strike Defendant's Designation of Responsible Third Parties Denied

By Michael C. Smith

Flanagan v. Wells Fargo Financial Nat. Bank, 2009 WL 2143439, E.D.Tex. July 14, 2009)
Judge: Amos Mazzant
Holding: Plaintiff's Objection to and Motion to Strike Defendant's Designation of Responsible Third Parties DENIED
Judge Schneider adopted Judge Mazzant's ruling in this case, which mentions the recent Texas "responsible third party" practice under Texas Civil Practices and Remedies Code § 33.004.
This dispute arises out of Defendant's handling of a credit card account that was in Plaintiff's name, which Plaintiff asserts was fraudulently obtained. Plaintiff filed suit asserting that Defendant's unreasonable collection efforts caused him damages under the Texas Debt Collections Practices Act, Fair Debt Collections Practices Act (?FDCPA?), Fair Credit Reporting Act (?FCRA?), as well as for libel, intentional infliction of emotional distress, malice, negligence and gross negligence.
The defendant filed a third party complaint against the plaintiff's wife (I think it is) and father, and designated them as responsible third parties (RTP).  The plaintiff moved to strike the designation as responsible third parties.  Judge Mazzant denied the motion, finding sufficient facts alleged to bring the third party claim, and also denied the motion to sever the third party claim at this time.
But what isn't clear to me is why the designation or motion were filed in the first place - the defendant actually joined the Flanagans to the case as third parties, so the designation as responsible third parties was superfluous.  What the new Texas RTP procedure permits is a defendant to name a nonparty it believes has some responsibility for a plaintiff's injuries but whom the plaintiff did not sue (including bankrupts or entities over whom the court does not have jurisdiction) and have the jury assess a percentage of responsibility against that nonparty, which has the effect of reducing the percentage remaining to be assessed against the defendant.  (It reminds me of the famous Cadaver Synod (or Synodus Horrenda) back in 897 where Pope Formosus who was out of favor - and dead since the previous year - was dug up, his rotting corpse put in a chair, and tried for violations of canon law by his successor, Stephen VI.  Formosus, who unsurprisingly was not very vocal in his own defense (he did have a deacon appointed to represent him, but I doubt he was very vocal when the prosecuting attorney was, uh, the current pope) was found guilty, but the blowback was pretty severe - by the end of the year Stephen was deposed, imprisoned and strangled, and Formosus' corpse, after a brief burial and trip down the Tiber, was reinterred in St. Peter's). 
Back to RTP practice.  What the RTP procedure does not do is make the RTP a party to the case or impose any liability on them, including any res judicata effect from the prior trial.  (As opposed to Formosus, who lost three fingers off his right hand and stripping of the papal vestments, plus the aforementioned burial and temporary slumber with the fishes).  The principal difference between naming and joining (which is what the defendant did here) is that the defendant can actually place liability on the third party and recover from them if it is found to be liable if it joins them to the action as the defendant did here. 
Perhaps the defendant simply belt and suspender-ed the third parties.  In either event, Judge Mazzant focused on whether the real claim - the third party claim, not the RTP - was properly party of the case, and found that it was.
Tomorrow I'll discuss how the new method of counting days under the federal rules is similar to Vatican II.  Or an episode of Star Trek - I haven't decided which.

Full post as published by Eastern District of Texas Federal Court Practice on July 23, 2009 (boomark / email).