The Fourteen-Day Rule

Rule 14(a)(1) puts every third-party complaint on one of two tracks, and a single count of days decides which. A defending party that files within 14 days after serving its original answer may serve its summons and complaint on the nonparty at once; one that files later must first obtain the court’s leave by motion.¹ The count settles only who acts first, the defendant or the court. After the window the court decides whether to allow impleader at all, and even a prompt filing stays open to a motion to strike, sever, or try separately.²

The Fourteen-Day Window

A defending party may, as third-party plaintiff, 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, but it “must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer.”³ Two events fix the count: the defending party’s service of its original answer, which starts it, and the defending party’s filing of the third-party complaint, which ends it. A filing no more than 14 days after that service needs no leave.⁴ A later filing requires a motion, and the defending party must obtain leave before making service on the third party.⁵

Because the rule runs from the answer to the filing, neither the date the plaintiff sued nor the date the summons finally reaches the third party enters the count. Two dates and one comparison resolve every case.

The boundary in step four is easy to misjudge. Leave is required only for a filing “more than 14 days” after service, so the fourteenth day is still inside the window and the fifteenth is the first day that calls for a motion.⁶

The two filings differ by one day, and that day separates proceeding alone from asking permission. Lindqvist has not lost its right to implead; the rule conditions a late filing on leave and does not forbid it.

Older opinions may state the number differently. One describes the no-leave period as ten days after the defendant submits its answer, while the rule as quoted above says 14, and the rule’s text controls.⁷

Filing inside the window removes the motion requirement but leaves the court’s control intact. The automatic provision might suggest that the court must hear any third-party claim filed in time, but the cases establish that the court may always refuse to entertain an impleader claim,⁸ and Rule 14(a)(4) lets the court strike even a prompt impleader.⁹ The two tracks therefore differ in who acts first. Inside the window the defendant files and an objector must ask the court to undo the filing; outside it the defendant must persuade the court beforehand.

Leave After the Window

A defending party whose 14 days have run must file a motion and win the court’s leave before serving the third party.¹² The rule’s text states no standard for deciding that motion, so the answer rests on the court’s discretion. Missing the window does not forfeit impleader, which is not mandatory in any event: a defendant may refrain from impleading and assert its claim in an independent action.¹³ The motion decides only whether the claim over is tried in this case or in a second one.

The discretion leans toward allowing the claim. One opinion put the standard this way: the district court should “allow impleader on any colorable claim of derivative liability that will not unduly delay or otherwise prejudice the ongoing proceedings.”¹⁴ Another formulation puts the presumption in the same place: impleader should be permitted unless it clearly will prejudice the plaintiff or the third-party defendant, either by unduly complicating the original suit or by delaying its resolution.¹⁵ The word “clearly” favors allowing the claim. When clear prejudice does exist, joinder may be refused even though the claim satisfies the rule and the jurisdictional requirements.¹⁶

The claim must still be one of derivative liability. Impleader is allowed only when the claim is contingent upon or derivative of the main claim, so that the third-party defendant would be liable to the defendant in whole or in part if the defendant is found liable to the plaintiff. A shared transaction and a common question, which suffice for permissive joinder under Rule 20, do not.¹⁷ Leave cures lateness; it does not supply a missing basis for third-party liability.

Many courts organize the weighing around four factors when they decide a motion under Rule 14:¹⁸

the timeliness of the motion;
the potential for complication of the issues at trial;
the probability of trial delay; and
whether the plaintiff may be prejudiced by the addition of parties.

These are considerations to balance, not elements the movant must prove. On one side stand the efficiency of hearing related claims together and the avoidance of repeated suits or inconsistent judgments. On the other stand undue delay in seeking impleader, complication of the issues in the main action, and potential prejudice to the plaintiff from impleading a sympathetic third party.¹⁹ Courts also look at the likely prejudice to the potential third party and at the movant’s reasons for any delay.²⁰

Timing matters most when it is extreme. Courts are generally willing to allow third-party claims that satisfy Rule 14 unless the claims arrive so late, such as on the eve of trial, that existing or potential parties would suffer severe prejudice.²¹

Two features of the law tilt the balance toward allowing the claim. Refusal sends the defendant to a second lawsuit, which revives the circuity of action and the risk of inconsistent results that impleader exists to avoid, and a court must weigh that cost against any prejudice the plaintiff would suffer from a more complicated case.²² And the court has a remedy short of refusal: permit the third party to join and, if the feared prejudice proves real, sever the third-party claim or try it separately.²³ There should be little occasion to deny impleader outright.²⁴

The opinion in Erkins v. Case Power & Equipment Co. gathers these points in one place. It lists the four factors, observes that courts construe Rule 14(a) liberally in the interest of judicial economy, and then states the limit on that liberality: a defendant may implead only a party who is or may be liable to it derivatively or secondarily, not one who is liable solely to the plaintiff, so the basis for third-party liability is generally contribution or indemnity.²⁵ The opinion applies an earlier version of the rule, which allowed ten days, so the number has changed but the factors carry forward.²⁶

A late motion that succeeded arose in a bank-failure dispute. About a year after the Bank answered the complaint, it failed, and the FDIC, as receiver, removed the case and was substituted as defendant. Six months later the FDIC moved for leave to amend its answer to add a counterclaim against the guarantor Lehman and, at the same time, for leave to serve a third-party complaint against Roffman. The magistrate judge granted the impleader motion on January 21, 1993. Roffman objected and moved to strike the third-party complaint in its entirety.²⁷ The motion came far outside the window, so leave was the only route, and the standard quoted above comes from the opinion in this litigation.²⁸

A motion with the opposite profile failed in Shamblin v. Nationwide Mutual Insurance Co., where the court found no abuse of discretion in denying the appellant’s motion for a third-party action. Three features of the record carried the result. The appellant had delayed without explanation until shortly before trial, and granting the motion would have prejudiced the plaintiff. The third-party complaint was essentially a legal-malpractice claim, while the underlying action was a bad-faith insurance claim, so the issues were likely to be confused. And nothing prevented the appellant from filing a separate action for indemnification or contribution.²⁹

The two cases show that lateness alone does not decide the motion. The Lehman motion came long after the window and was granted; the Shamblin motion was denied because the delay was unexplained and came on the eve of trial, because the claim would have confused the issues, and because a separate suit remained open. Denial cost the Shamblin appellant the efficiency of one proceeding while leaving its claim over available in a second suit, which is why courts can refuse at the margin.

A defendant who misses the 14 days has therefore not lost impleader, and one who files a motion has not secured it. The motion is addressed to discretion that courts exercise generously, and denial is reserved for claims that come very late or clearly prejudice a party. The same considerations return when another party moves to strike a prompt impleader that needed no leave.

Striking or Severing the Claim

Inside the window, the defending party files its third-party complaint without asking anyone, so a judge examines the claim only if another party objects. Rule 14(a)(4) supplies the objection: “Any party may move to strike the third-party claim, to sever it, or to try it separately.”³³ Striking removes the claim from the case. Severing splits it off from the plaintiff’s action. A separate trial keeps it in the case but tries it apart. The plaintiff, whose case is being crowded, is the likeliest movant, but the rule does not limit the motion to the plaintiff.

The motion invokes discretion that exists in either event. When impleader is prompt and leave is not required, a motion by any party is the way a court’s discretion over the third-party claim gets exercised.³⁴ A rule that lets a defendant add a party by its own filing needs that release valve; without it, the plaintiff would have no way to object to a new adversary and new issues.

The weighing resembles the one on a motion for leave. The court sets the desire to avoid circuity of action and to obtain consistent results against any prejudice the plaintiff may suffer from complication of the case.³⁵ A filing made inside the window is not late, so the weighing usually turns on complication and prejudice rather than delay.

Courts rarely resolve that balance by throwing the claim out. The power to order a separate trial of separate issues under Rule 42(b) is sufficient to prevent any harm from impleader, so there should be little occasion to deny it.³⁶ The preferred sequence is to let the third party join and, if it later appears that the fear of prejudice was justified, to sever the claim or try it separately.³⁷ Even where a plaintiff’s objection to impleader is realistic and persuasive, a separate trial of the third-party claim usually gives enough protection.³⁸ A separate trial answers the harm a plaintiff typically fears, which is complication of the case, while the third party stays in the action. Waiting also lets the judge see prejudice that has appeared rather than prejudice that was predicted.

Striking outright is therefore reserved for clear prejudice. A movant who observes only that the third-party claim adds complexity gives the court little, because impleader should go forward unless it clearly will prejudice the plaintiff or the third-party defendant by unduly complicating the suit or delaying its resolution.³⁹ The movant’s showing has to be concrete: how the claim will complicate the trial or delay its end.