Serving the Third-Party Complaint

Rule 14(a)(1) frames impleader as an act of service: 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.¹ The vocabulary comes from starting a lawsuit. The defending party drafts a pleading against a new adversary and delivers it with a summons, so impleader begins just as an original action does.² Only a derivative claim may be served this way. Impleader is allowed only if the third-party defendant would be liable to the defendant, in whole or in part, should the defendant be found liable to the plaintiff.³ Two practical questions remain: which rule governs delivery, and how the document is formatted so that it belongs to the case already pending.

Rule 4, Not Rule 5

The Rules themselves are not explicit about which service rule governs a third-party complaint. Rule 4 is the rule for serving a summons and complaint on someone who does not yet know that a suit exists, and Rule 14(a)(1) calls for exactly those documents. Rule 5 governs the exchange of the many pleadings and papers filed after the original complaint, and it supplies simpler methods for that purpose. A third-party complaint fits both descriptions, so the answer must come from the purpose each rule serves.⁴

Rule 4 exists to insure adequate notice to parties who have not yet learned that they have been sued. Rule 5 trades a little of that certainty for a great deal of efficiency, on the premise that a party already in the case is aware of it and will stay in touch with later developments.⁵ That premise holds for the original parties but fails for the third-party defendant. The third-party complaint is the new party's first notice of the action, and under the due process clause the new party has the same right to notice that an original defendant has.⁶ Rule 4 therefore governs. The impleader claim is treated like an original suit for pleading, service, and other purposes, and it must be served under Rule 4.⁷

Caption, Docket Number, and Attachments

A properly served third-party complaint must also read as part of the pending case. The caption follows Rule 10(a), which applies to every pleading, so the title of the action grows to include the third-party defendant alongside the original parties. The docket number is the one assigned to the original action.⁸ That shared number reflects what impleader is: an additional claim asserted against a new party in the original action, not a separate lawsuit. The claim is litigated along with the main claim unless the court orders separate trials. All three parties may seek discovery from one another, motions and other papers are served on everyone, all parties take part in hearings and pretrial proceedings, and all claims are tried at the same time.⁹

The complaint itself must satisfy the pleading requirements of Rules 8 through 11.¹⁰ In the Schulansky example, the defendants should also append a copy of the original complaint. The third-party defendant, Jones, needs it to frame his answer, including the defenses that Rule 14(a)(2)(C) lets him raise on the theory that, if Ronan is not liable to Schulansky, then Jones cannot be liable to Ronan.¹¹

Timing and the Response

Timing interacts with service. A defending party that files the third-party complaint more than 14 days after serving its original answer must first obtain the court's leave by motion, and it needs that leave before it may serve the third party.¹² Prompt filing does not guarantee that the claim will stay in the case, because the court can strike even a prompt impleader under Rule 14(a)(4).¹³

Once Rule 4 service is complete, the response follows the usual path. The third-party defendant must respond under Rule 12, with the same options an original defendant has to answer or to move to dismiss, and an answer to a third-party complaint is one of the pleadings Rule 7(a) recognizes.¹⁴ The defenses available to the third-party defendant are taken up below, and the question whether the court has personal jurisdiction over the new party is addressed in the jurisdiction section.