Timing and Service

Rule 13(g) settles which claims may be pleaded as crossclaims and what they may include. It says nothing about when a crossclaim must be filed or how it reaches the coparty.¹ Courts answer both questions from the facts of the case. On timing, the trial judge exercises discretion, weighing the value of resolving everything in one lawsuit against the harm a late claim may do. On service, the answer turns on whether the coparty has already appeared in the action.

Timing of the Crossclaim

Rule 13(g) sets no deadline. It lists the claims a pleading may state against a coparty and the connections that qualify them, and it stops there.² Courts take the silence at face value: no set timeframe governs, and whether to allow a crossclaim that meets the rule's test is a matter of judicial discretion.³ One scholar describes the structure this way: the Rules "require a qualifying claim to get in the game (jacks or better to open), but once that requirement is met the Rules allow the parties to play their hands as they wish."⁴ Timing is where the court's discretion enters.

The facts of one federal case show why a fixed period would fit poorly. The case arose from a plane crash on May 24, 2005. Superior did not become a party until the plaintiff filed an amended complaint on April 18, 2007. On October 15, 2008, with leave of court, KS Gleitlager filed a third-party claim against the Government, which answered on December 11. Superior filed its crossclaim against the Government on December 18, shortly after the Government entered the case.⁵ The coparty Superior wanted to reach appeared more than three years after the crash, and a period running from the early pleadings could have expired before it arrived. Under a discretionary standard, the question becomes whether the benefit of resolving all the claims in one trial outweighs the cost of admitting this claim at this stage.

Discretion is not the absence of limits. Because there is no set time frame, most courts balance the interests of judicial economy and the general policy of avoiding multiple suits relating to the same events against the possibility of prejudice or surprise to the other parties, and they decide timeliness accordingly.⁶ Economy is the benefit this chapter has stressed throughout: related claims are resolved in a single lawsuit. Prejudice, surprise, delay, and complication are the costs, and courts look for them in the posture of the case, including any scheduling orders already entered.⁷

The Government moved to dismiss Superior's crossclaim. It noted that Superior "did not request leave of Court to seek relief against the [Government]" and suggested that Superior was trying to circumvent the court's scheduling orders.⁸ Yet the Government did not allege that the timing of the crossclaim prejudiced it. The crossclaim followed shortly after KS Gleitlager's third-party complaint, and, as the Government itself pointed out, its allegations were essentially identical to that complaint's.⁹ The third-party complaint had also recently introduced allegations that an FAA employee's actions may have contributed to the accident. Given the status of the case, the court concluded that allowing the crossclaim would not have been likely to cause prejudice, undue complication, or delay.¹⁰

The court added a word about practice. The Rules do not expressly require leave to file a crossclaim, but in light of the stage of the proceedings and its earlier scheduling orders and extensions, the court agreed that requesting leave first would have been better practice. It would have granted leave for the reasons just given, and it therefore declined to exercise its discretion to dismiss.¹¹ A pleader who skips the request is not barred, but gives the opponent an opening to argue circumvention, as the Government did here.

Calendar time alone does not decide the question. In Fogel, a 1963 Eastern District of Pennsylvania decision, the court allowed crossclaims nearly three years after the original action began, because it found no indication that they would delay or complicate the trial or work an injustice that outweighed the benefit of resolving all the claims in one trial.¹² In Lyons v. Marrud, Inc., the court allowed a crossclaim two years after five related suits were commenced, when a bankruptcy order had restrained the proceedings and most pretrial discovery had yet to be done.¹³ In both cases the court asked what the delay had done to the lawsuit, not how old the lawsuit was.

The harms in that scene are the ones the balancing standard looks for: new discovery, a moved trial date, and a coparty caught by surprise. None was present where the crossclaim repeated allegations already before the Government. A problem that reports a late crossclaim therefore calls for a weighing, not a calendar count. Two answers go wrong. One treats the missing deadline as an open door and ignores the court's power to refuse. The other treats the missing request for leave as fatal, which the court did not do when no prejudice was shown. The facts to read for are the stage of the case, how closely the crossclaim tracks claims already pleaded, and any scheduling orders.

Service of the Crossclaim

Rule 13(g) provides that a pleading may state a claim against a coparty as a crossclaim.¹⁵ A crossclaim therefore enters a case that is already pending, and the rule says nothing about how it reaches the coparty. Courts fill the gap by asking whether the target has already appeared. A party that has appeared receives the crossclaim by service under Rule 5, while a party that has not should be served with a summons under Rule 4.¹⁶

One federal court applied each rule to the same target within a single lawsuit. When KS Gleitlager filed its third-party complaint against the Government as a nonparty, Rule 4's requirements for service of a summons and complaint applied. The Government then appeared when it filed its answer. By the time Superior filed its crossclaim, the Government was a party that had already appeared, so Rule 5 applied rather than Rule 4.¹⁷ The court cited the Fifth Circuit's decision in Fluor Engineers & Constructors, Inc. v. Southern Pacific Transportation Co., 753 F.2d 444 (5th Cir. 1985), which recognized that before a party appears a crossclaim should be served along with a summons under Rule 4, whereas service under Rule 5(a) is appropriate once the party has appeared.¹⁸

The line tracks what each rule does. A summons and complaint is how process first reaches a person who has not been brought into the case. A party that has appeared is already before the court and needs notice of later pleadings, which Rule 5 supplies. The Government's appearance by answering is the event that moved it from one rule to the other.

The claim, the parties, and the accident are the same in both versions. Only the target's appearance changes the answer. A tempting wrong answer ties the summons requirement to the kind of claim, as though every claim against a coparty must start like a new lawsuit. The rule instead follows the target's position in the case. The facts to read for are whether the target had appeared before the crossclaim was pleaded, as the Government did by filing its answer, and when.