Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

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1 Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION DONALD W. THOMAS, individually and on behalf of all others similarly situated, vs. Plaintiffs, DAVE AND BUSTERS, INC. vs. Defendant and Third-Party Plaintiff RBS WORLDPAY, INC. Third-Party Defendant Civil Action No. 4:10cv187 CLASS ACTION COMPLAINT AGAINST RBS WORLDPAY, INC. Dave & Busters, Inc. ("Dave & Busters" or "Third-Party Plaintiff") brings its Third-Party Complaint against RBS WorldPay, Inc. ("RBS" or "Third-Party Defendant") and shows the Court as follows: I. PARTIES 1. Dave & Busters is a corporation organized and existing under the laws of the State of Missouri and authorized to conduct business in the State of Texas. 2. RBS is a corporation organized and existing under the laws of the State of Georgia and may be served with process through its registered agent Corporation Service Company, 40 Technology Parkway, #300, Norcross, Georgia COMPLAINT AGAINST RBS WORLDPAY, INC. PAGE 1

2 Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 2 of 6 II. JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction in this matter pursuant to 28 U.S.C as the amount in controversy exceeds Seventy-Five Thousand Dollars ($75,000), exclusive of interest and costs, and this matter is between citizens of different states. Additionally, this Court has federal question jurisdiction pursuant to 28 U.S.C and 1337 and 15 U.S.C. 1693m(g) since Dave & Busters' claims against RBS are derivative of Donald W. Thomas' claims against Dave & Busters which arise under the Electronic Funds Transfer Act, 15 U.S.C et seq. 4. Venue is proper in the United States District Court for the Eastern District of Texas pursuant to 29 U.S.C. 1391(a). III. BACKGROUND FACTS 5. On June 18, 2009, Dave & Busters and RBS entered into an Automated Teller Machine ("ATM") Placement Agreement (the "Agreement"). A true and correct copy of the Agreement is attached hereto as Exhibit "A" and incorporated herein for all purposes. 6. Pursuant to the Agreement, RBS agreed to install, operate and maintain one (1) ATM located at 8021 Walnut Hill, Dallas, Texas and two (2) ATMs located at 2601 Preston Road, Suite 1200, Frisco, Texas In addition, RBS agreed, at its sole cost and expense, that it would comply with all applicable federal, state and local laws, rules, regulations and ordinances in the course of performing its obligations under the Agreement. 7. Paragraph 10 of the Agreement states the following: RELEASE; INDEMNIFICATION. RBS WorldPay shall indemnify and defend [Dave & Busters] against, and hold [Dave & Busters] harmless from any and all claims, liabilities, costs, losses or expenses COMPLAINT AGAINST RBS WORLDPAY, INC. PAGE 2

3 Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 3 of 6 directly arising or resulting from RBS WorldPay' [sic] failure to perform its obligations under this Agreement, specifically including the security of all individuals submitting personal identification information to an ATM installed by RBS WorldPay hereunder; provided, however that RBS WorldPay shall have no duty of indemnity or any other liability for any claim, liability, costs, loss or expense that arises from the negligent act or omission or willful misconduct of [Dave & Busters] or their respective officers, agents, servants or employees. FURTHERMORE, RBS WorldPay SHALL NOT BE LIABLE FOR OR HAVE ANY DUTY OF INDEMNITY OR OTHER LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES. Consequently, RBS is obligated to indemnify Dave & Busters from liabilities, costs, losses or expenses arising from RBS's failure to perform its obligations under the Agreement. 8. On April 13, 2010, Donald W. Thomas ("Thomas"), individually and on behalf of all others similarly situated, filed a lawsuit against Dave & Busters claiming that Dave & Busters is an ATM operator under the Electronic Funds Transfer Act and that it failed to place the appropriate "on the machine" fee notice on the exterior of certain ATMs located at 8021 Walnut Hill, Dallas, Texas and 2601 Preston Road, Suite 1200, Frisco, Texas (the "Lawsuit"). The ATMs at issue in the Lawsuit are the very same ATMs operated and maintained by RBS pursuant to the Agreement. Thus, Thomas claims that Dave & Busters failed to comply with federal law by placing "on the machine" notices on its ATMs. 9. On May 25, 2010, Dave & Busters sent a letter to RBS demanding that it indemnify and defend Dave & Busters from all claims, liabilities, losses or expenses relating to the Lawsuit (the "Demand Letter"). A true and correct copy of the Demand Letter is attached hereto as Exhibit "B" and incorporated herein for all purposes. COMPLAINT AGAINST RBS WORLDPAY, INC. PAGE 3

4 Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 4 of To date, RBS has failed and refused to indemnify and defend Dave & Busters in relation to the Lawsuit. Consequently, Dave & Busters now files this Third- Party Complaint. IV. CAUSES OF ACTION Count I Breach of Contract 11. Dave & Busters expressly incorporates by reference the allegations set forth in paragraphs 1 through 10 as though fully set forth herein. 12. Pursuant to the Agreement, RBS is obligated to indemnify and defend Dave & Busters from liabilities, costs, losses or expenses arising from RBS's failure to perform its obligations under the Agreement. In the Lawsuit, Donald W. Thomas alleges that Dave & Busters failed to comply with federal law the Electronic Funds Transfer Act by failing to place "on the machine" notices at certain ATMs installed, operated and maintained by RBS pursuant to the Agreement. To date, RBS has failed to indemnify and defend Dave & Busters from any costs, losses or expenses relating to the Lawsuit despite the fact that the Lawsuit arises out of the alleged failure to perform responsibilities placed on RBS by the Agreement. As a proximate result thereof, Plaintiff has been damaged in an amount for which it hereby sues. Count II Attorneys' Fees 13. Dave & Busters expressly incorporates by reference the allegations set forth in paragraphs 1 through 10 as though fully set forth herein. 14. Dave & Busters is entitled to reasonable and necessary attorneys' fees and court costs pursuant to paragraph 20 of the Agreement and hereby sues for such amounts. COMPLAINT AGAINST RBS WORLDPAY, INC. PAGE 4

5 Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 5 of 6 V. CONDITIONS PRECEDENT 15. All conditions precedent to Dave & Busters' recovery herein, including damages and attorneys' fees, have been incurred or have been performed. WHEREFORE, Dave & Busters' respectfully prays that the Court grant it judgment for: (a) (b) (c) (d) (e) All damages established at trial; Pre-judgment and post-judgment interest at the maximum rate allowed by law; Reasonable and necessary attorneys' fees incurred through trial and all appeals; Costs of Court; and Such other and further relief to which it may be justly entitled. Respectfully submitted, KANE RUSSELL COLEMAN & LOGAN PC By: /s/ Michael A. Logan Michael A. Logan State Bar No C. Jeffrey Novel State Bar No Thanksgiving Tower 1601 Elm Street Dallas, Texas Telephone: (214) Facsimile: (214) ATTORNEYS FOR DAVE & BUSTERS, INC. COMPLAINT AGAINST RBS WORLDPAY, INC. PAGE 5

6 Case 4:10-cv RAS Document 12 Filed 09/13/10 Page 6 of 6 CERTIFICATE OF SERVICE I hereby certify that on the 13 th day of September, 2010, a copy of the foregoing was electronically served upon the following counsel of record, in accordance with the Federal Rules of Civil Procedure. Eric G. Calhoun TRAVIS & CALHOUN, P.C Providence Towers East 5001 Spring Valley Road Dallas, TX /s/ Michael A. Logan Michael A. Logan COMPLAINT AGAINST RBS WORLDPAY, INC. PAGE 6