Adding Claims and Parties

A crossclaim that clears Rule 13(g) does more than carry its own weight. The rule lets a pleading state as a crossclaim any claim against a coparty that arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or that relates to property that is the subject matter of the original action.¹ A pleader who holds one such claim can then enlarge the dispute in two ways. Rule 18(a) lets the pleader add other claims against the same adversary, related or not.² Rule 13(h) lets the pleader bring a new person into the crossclaim, with Rules 19 and 20 governing who may come in.³

Both devices depend on a claim already in the case. Rule 18(a) adds claims once a party has asserted a claim that satisfies the requirements of another joinder rule,⁴ and Rule 13(h) adds persons to a counterclaim or crossclaim that actually exists.⁵ A problem that describes a pleader tacking an extra claim or an extra party onto a crossclaim therefore calls for two steps in order. Ask first whether the base crossclaim satisfies Rule 13(g), and only then whether the extra claim or party fits the rule that carries it. The two extensions also answer different questions: Rule 18(a) asks whether the pleader may add more claims against an adversary already in the case, and Rule 13(h) asks whether a person who is not yet in the case may be added.

The Rules can afford this generosity because of where joinder comes from and what the relatedness limit does. The devices for multiparty, multiclaim actions descend from equity, which, unlike the common law, did not confine litigation to the fewest possible issues, and procedural reform carried those devices into modern practice so that complex cases could be resolved in a single action.⁶ The common law also treated a party as master of its own claim, free to choose where and when to assert it.⁷ Where the federal rule makers chose to override that freedom, as with compulsory counterclaims, they did so because litigating the same facts and issues between the same parties in one action was worth more.⁸ A crossclaim is different, because a pleading "may" state one, so the pleader keeps the choice, and the relatedness test works as an entry requirement and not as a ceiling on what follows.

Unrelated Claims Under Rule 18

Rule 13(g) turns away a claim against a coparty that has no tie to the original action, to a counterclaim, or to property in dispute, so an unrelated claim cannot enter the case as a crossclaim on its own.⁹ Rule 18(a) opens a second route. A party who asserts a proper crossclaim under Rule 13(g) may join with it as many independent, unrelated claims as the party has against that adversary.¹⁰ The two rules work in sequence: Rule 13(g) screens the first claim, and Rule 18(a) lets the pleader add the rest.

First National Bank of Cincinnati v. Pepper shows the sequence at work. The court of appeals reinstated the first and second crossclaims, both conceded to be proper under Rule 13(g), and on that basis reinstated a third crossclaim as well, because under Rule 18(a) a party asserting a proper crossclaim may join as many independent, unrelated crossclaims as the party has against an opposing party.¹¹ The third claim did not change between the two stages of the case. What changed was the presence of proper crossclaims beside it. One commentator's image captures the sequence: the Rules require a qualifying claim to get in the game ("jacks or better to open"), but once that requirement is met they allow the parties to play their hands as they wish.¹²

The failing case shows what Rule 18(a) does not do. Suppose a defendant's only claim against a codefendant is for unpaid rent under an unrelated lease. The claim fails Rule 13(g) because it has no connection to the original action, and with no proper crossclaim against that coparty, Rule 18(a) has nothing to attach it to. The rule is not a free-standing license, because it assumes that a claim proper under another joinder rule is already in the case.¹³

The starting claim must itself be proper, and that is not automatic. Coplaintiffs technically fall within the language of the modern crossclaim rules, but case law generally prohibits crossclaims between them unless a defendant has interposed a counterclaim against them.¹⁴ A coplaintiff without a proper crossclaim therefore lacks the foothold, and Rule 18(a) cannot supply one. The same source also gives a practical tip. When a claim cannot be joined under one rule, check whether the pleader can anchor some other claim against the same adversary under any joinder rule, because a claim that qualifies under a particular joinder rule opens Rule 18(a) for the rest.¹⁵

Hypothetical Illustration

A shipper sues a trucking company, a warehouse, and a freight broker after cargo is damaged in storage. The trucker crossclaims against the warehouse for indemnity if the shipper recovers, a claim that the coparty is or may be liable for part of the claim asserted against the trucker, and a proper crossclaim under Rule 13(g).¹⁶ The trucker also holds an unpaid-invoice claim against the warehouse and another against the broker, each from an unrelated delivery job. The warehouse invoice claim may ride along under Rule 18(a), because the indemnity crossclaim is a proper claim against that same adversary. The broker invoice claim has no anchor, because the trucker has asserted no proper claim against the broker, and Rule 18(a) cannot supply the first qualifying claim.

Joining an unrelated claim does not bind the court to try everything together. A district court keeps discretionary power to sever any claim on its own initiative under Rule 21,¹⁷ and it may order separate trials under Rule 42(b). If it does, it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party's claims have been dismissed or otherwise resolved.¹⁸ Whether the court has jurisdiction over an unrelated crossclaim is a separate question, taken up in the section on jurisdiction over crossclaims.

Exam Analysis Steps

When a problem adds an unrelated claim to a crossclaim, run the inquiry in this order:

Identify the adversary against whom the unrelated claim runs, and confirm that the adversary is a coparty.
Test the claim by itself against Rule 13(g): does it arise out of the transaction or occurrence of the original action or of a counterclaim, or relate to property at issue? If it does, it is a crossclaim and needs no help.
If it fails, look for a different claim by the same pleader against the same adversary that does qualify, whether it is pleaded alongside the unrelated claim or is already in the case. A claim that qualifies under another joinder rule can serve the same function.
If such an anchor exists, admit the unrelated claim under Rule 18(a). If none exists, reject the claim, because Rule 18(a) cannot supply the first qualifying claim.
Note that the court may sever the added claim under Rule 21 or order separate trials if joining it makes the case unmanageable.

The third step does the real work, and students most often miss it by treating Rule 18(a) as a rule about any claim between any two parties named in the caption. The anchor must run against the same adversary, and it must be proper under its own rule before the unrelated claim can ride along.

Joining Additional Parties

A party who pleads a counterclaim or crossclaim need not stop at the parties already in the case. New parties to a counterclaim can be brought into the suit under Rule 13(h),²¹ and the rule extends the same power to crossclaims: Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim.²²

Rule 13(h) sets no separate standard. It sends the pleader to the party-joinder rules, Rules 19 and 20. Rule 19 reaches a person who has not been made a party but ought to participate so that the court can fairly and adequately resolve the dispute, and it tells the court how to proceed if the absentee ought to be joined but cannot be.²³

The standard illustration comes from counterclaims. P sues D for an auto accident, and D believes that P and X conspired to ruin D's business in an unrelated matter. D may counterclaim against P for the conspiracy, a permissive counterclaim, and may also bring X in as a new party to that counterclaim.²⁴ The counterclaim has nothing to do with the accident, and X has no part in the original suit, yet X can be added, because X is alleged to have taken part in the very conspiracy on which the counterclaim rests. The reasoning carries over to crossclaims, because Rule 13(h) names counterclaims and crossclaims together.²⁵

For a crossclaim, the inquiry therefore has two links. The crossclaim must first satisfy Rule 13(g) through its tie to the original action, to a counterclaim, or to property at issue, and the person to be added must then qualify under Rules 19 and 20 as a party to that crossclaim.²⁶ A claim that fails the first link leaves nothing to which the newcomer can be added.

Whether a claim against an added person also fits within federal subject-matter jurisdiction is a separate question, taken up in the next section.