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G.M. Sign, Inc. v. Franklin Bank. S.S.B.

September 14, 2006

G.M. SIGN, INC., AN ILLINOIS CORPORATION, INDIVIDUALLY AND AS THE REPRESENTATIVE OF A CLASS OF SIMILARLY SITUATED PERSONS, PLAINTIFF,
v.
FRANKLIN BANK. S.S.B., DEFENDANT.



The opinion of the court was delivered by: Charles P. Kocoras, District Judge

MEMORANDUM OPINION

The following matter is before the court on Defendants, Franklin Bank, S.S.B.'s ("Franklin Bank"), Motion for Leave to File Third-Party Complaint Instanter. For the reasons set forth below, the motion is granted.

BACKGROUND

The relevant facts are gleaned from the allegations set forth in G.M. Sign's Complaint. In addition, we have supplemented the facts with those provided in the parties' filings, including those found in the Third-Party Complaint, which we accept as true for this Motion only.

Franklin Bank is a Texas Chartered state savings bank, with its headquarters and principal place of business located in Houston, Texas. Although headquartered in Houston, Texas, Franklin bank also maintains offices in over two dozen other states. In or about late January or early February of 2005, Robert Cress ("Cress"), manager of the Mineral Wells, Virginia Franklin Bank office, began speaking with Jon Connor ("Connor"), an Executive Account Manager with ActiveCore Technologies, Inc. ("ActiveCore"), about certain facsimile broadcast services that ActiveCore provides. ActiveCore is a Canadian company based in Ontario. On February 9, 2005, Connor emailed Cress, inviting him to visit ActiveCore's internet Website. On February 10, 2005, Cress sent Connor an email stating:

"I reviewed the terms and conditions section of the website and do not see where activecore assumes responsibility for state laws regarding broadcast faxes and retention and maintenance of "do not fax lists." If you could please provide me those sections of the terms and conditions or would want to fac or email me something on activecore letterhead stating that, I can begin to transmit using your system."

That same day, Connor responded to Cress' email indicating:

"The removal numbers are added as per your instructions and remain on all your broadcasts unless you decide your company wants to handle the removals. As for the broadcasts, I have attached the details for your review.

Also attached to Connor's response email was a document in electronic format entitled "customer indemnity letter.doc" ("the Indemnity Document"), paragraph 2.2 of which states:

You agree to indemnify and hold Franklin Bank SSB, Inc. [sic] and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, suppliers, alliance members, other partners, employees and representatives harmless from any claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of Your Content, Your use or connection to the Website (including any use by You on behalf of Your employer), Your violation of the Terms, or Your violation of any rights of another.

The Indemnity Document goes on to say:

To the full extent permitted by law, Franklin Bank SSB, Inc. [sic] not liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (including, without limitation, loss of business, revenue, profits, goodwill, use, data, arising out of or in connection with the Website, even if Franklin could have foreseen, the possibility of such damages, however, they arise, whether in breach of contract or in tort.

Both Connor's emails and the indemnity letter were electronically signed by Connor in his capacity as ActiveCore's Executive Account Manager.

Subsequently, Cress decided to use ActiveCors's facsimile broadcast services. However, prior to the sending of any facsimiles ActiveCore provided Franklin Bank a list of telephone numbers to which the content would be broadcast, checked the integrity of the list, and reviewed the quality with of the content with Franklin Bank. ActiveCore broadcasted certain content at Cress's behest by facsimile on ...


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