Who May Implead Whom

Every impleader casts two roles, and Rule 14(a)(1) names both: a "defending party" may serve a summons and complaint on a "nonparty" who is or may be liable to it for all or part of the claim against it.¹ The first role fixes who may implead; the second fixes whom. A litigant who fails either description cannot use Rule 14, however sound its claim to reimbursement. Every impleader problem therefore begins with two questions: Is the party asserting the claim a defending party? Is the person it targets still outside the case?

The same sentence of the rule contains a third limit, that the nonparty be or may be liable over to the defending party for the claim against it. That language keeps impleader from becoming a way to attach any claim a defendant happens to hold against anyone. Without it, a defendant could load the case with tangential claims that share few witnesses or issues with the main one, such as a claim over missing camels in a suit about faulty construction.² The section on derivative liability takes up that requirement; this one takes up the two roles.

Defending Parties

Rule 14(a)(1) gives the power to a "defending party" rather than a "defendant," and the difference matters. A defending party is a defendant or a plaintiff who is subject to a counterclaim.³ The original defendant is usually the third-party plaintiff, but any defending party can implead.⁴ The test turns on position rather than label: Has a claim been asserted against this party? Anyone who answers yes risks paying that claim and then having to chase someone else for reimbursement, the problem impleader addresses.

A plaintiff becomes a defending party when a claim is asserted against it, and Rule 14(b) then lets it bring in a third party if Rule 14 would allow a defendant to do so.⁵ The rule specifically authorizes a plaintiff defending against a counterclaim to implead.⁶ The plaintiff takes the defendant's power along with the defendant's conditions: the person brought in must be a nonparty, and must be or may be liable to the plaintiff for all or part of the claim against the plaintiff.⁷

Hypothetical Illustration

Okafor sues Redline Roofing over botched repairs. Redline answers and files no counterclaim. Okafor then learns that the shingle supplier may share the blame, and he wants to serve it with a third-party complaint. He cannot. No claim has been asserted against him, so he is not a defending party, and the supplier's possible liability runs to him on his own claim rather than over to him for someone else's claim. His route to the supplier is the ordinary one for adding a defendant to his own complaint.

Change one fact: Redline counterclaims for unpaid fees. Now a claim has been asserted against Okafor, and Rule 14(b) lets him implead a nonparty who is or may be liable to him for all or part of that counterclaim, such as a co-owner of the house who agreed to share the repair costs. The shingle supplier still does not qualify, because it owes Okafor nothing on the fees counterclaim.

The supplier in Okafor's first scenario fails the rule's liable-over test. Before 1946, Rule 14 allowed third-party practice against someone potentially liable directly to the plaintiff.⁸ Today the claim must be that the third party is liable over to the defendant for all or part of the plaintiff's claim against the defendant.⁹ A supplier who owes Okafor damages on his own claim is liable to him, not over to him for a claim someone else has made.

A third-party defendant is a defending party too. Once the third-party complaint is served, it faces a claim of its own, and someone else may be obliged to cover that exposure. Rule 14(a)(5) lets it proceed against a nonparty who is or may be liable to it for all or part of any claim against it.¹⁰ The nonparty it brings in is a fourth-party defendant.¹¹ Commerce supplies chains of this kind, and reinsurance is the most obvious example: one obligor covers the liability of another obligor, who in turn covers the original defendant's.¹²

Rule 14(a) does not say how to plead a fourth-party case, a fifth-party case, or any case beyond; it leaves those layers to be pleaded by analogy to the rule's scheme for three-sided pleading.¹³ The same two questions apply at every link of the chain: Has a claim been asserted against this party, and is a nonparty liable over to it for that claim?

The Nonparty Requirement

Rule 14(a)(1) authorizes a summons and third-party complaint only "on a nonparty," and that phrase supplies the second limit.¹⁷ Serving a summons is how a court first brings someone before it, so the rule reaches only people still outside the case. A third-party complaint may be served only on one not already a party, and Rule 13 supplies the devices for claims against those already in.¹⁸ Unlike a counterclaim or crossclaim, impleader asserts a claim against someone who is not yet a party, and it is technically inappropriate when the prospective third party is already involved in the action.¹⁹

The target's status when the claim is asserted decides the device. A person already in the case as a coparty is reached by a crossclaim under the second sentence of Rule 13(g).²⁰ A person already on the other side is reached by a counterclaim.²¹ Only a stranger to the case can be impleaded. The sorting runs in both directions once the lines are drawn: Edison's claim against Preferred makes Preferred an opposing party, so Preferred's claim back against Edison is a counterclaim.²²

The label matters because the devices carry different procedures. Impleader requires a summons and complaint, and it requires the court's leave if the third-party complaint comes more than 14 days after the original answer.²³ A Rule 13(g) crossclaim requires neither a summons and complaint nor leave of court. That contrast fed an objection in Luyster v. Textron, Inc., drawn from an earlier decision, Murray: confusion would result if some defendants served third-party complaints after obtaining leave while others simply filed crossclaims. The court rejected the objection. Sorting claims by whether the target is a party or a nonparty, it said, yields a bright line and clarity rather than confusion. The first defending party to assert a claim against a nonparty serves a summons and complaint under Rule 14(a); the nonparty then becomes a party, whether as a third- or fourth-party defendant, and no further summons or complaint needs to be served on it. The objection went wrong by treating the newcomer as though it were still a nonparty after its status had changed.²⁴

One corner of the system fits badly. When the person liable over is already an opposing party, the Rules expose a discontinuity: the technically proper course is to sever the claim asserted against the defending party, so that the defending party can use Rule 14(a) against someone who had been an opposing party and is a nonparty in the severed action.²⁵ The situation is unusual, and the ordinary sorting question matters far more.