Concept
After the Third Party Joins
Third-party impleader
After the Third Party Joins
Service of the third-party complaint makes the nonparty a party and turns a two-sided case into a three-sided one. Rule 14(a)(2) tells the person served, now the third-party defendant, what it must and may do from that point.1
Three labels keep the triangle straight: P for the plaintiff, D for the defending party who served the third-party complaint, and T for the newcomer. Lehman fits the pattern. After the FDIC was substituted as defendant in Lehman’s suit, it served a third-party complaint on Roffman seeking indemnification and contribution for the claims Lehman had advanced.2 Lehman is P, the FDIC is D, and Roffman is T. One line already runs from P to D, the main claim, and another from D to T, the claim over. Every question in this unit asks whether a further line may run between two corners, and which rule allows it.
Rule 14(a)(3) draws the line from P to T: “The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.”3 Rule 18(a) stands behind all the others. Once a party has asserted a claim by satisfying the requirements of a particular joinder rule, it may add any other claims it has against that adversary, related or unrelated.4 The table maps the lines before the subsections take them one at a time.
| Line | Authority | Required? | Limit |
|---|---|---|---|
| T’s Rule 12 defenses to D’s claim | Rule 14(a)(2)(A) | Yes, T must raise them | Rule 12 governs |
| T’s defenses to P’s claim | Rule 14(a)(2)(C) | No | Not defenses personal to D |
| T’s counterclaims against D; crossclaims against other third-party defendants | Rule 14(a)(2)(B) | Compulsory counterclaims only | Rule 13 governs |
| T’s claim against P | Rule 14(a)(2)(D) | No | Same transaction as P’s claim against D |
| P’s claim against T | Rule 14(a)(3) | No | Same transaction as P’s claim against D |
| D’s added claims against T | Rule 18(a) | No | T properly impleaded; separate jurisdictional basis |
Defenses of the Third-Party Defendant
Rule 14(a)(2)(A) requires T to assert any defense against D’s claim under Rule 12.5 Because the impleader claim is treated like an original suit, T responds as any defendant would, with the same options to answer or move to dismiss.6 Every defense T has against D is available, including lack of personal jurisdiction, estoppel, and waiver.7 Each attacks the claim against T itself, and the rule puts the burden of raising it on T.
Rule 14(a)(2)(C) gives T a second kind of defense, one aimed past D at the main claim: T “may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim.”8 The reason lies in the structure of the derivative claim. T escapes liability by defeating either P’s original claim or D’s claim against T, so the rule lets T assert defenses to both.9 In the Said illustration, if DeLesseps wins France’s main claim, Said wins the third-party claim, because DeLesseps needs no indemnification when France cannot hold him liable.10
The borrowed defense also protects T against a lax defendant. T depends on D to fight the main claim, and Rule 14(a)(2)(C) lets T guard against D’s failure to defend the merits vigorously.11 A limitations bar shows the protection at work. If P’s claim is barred by the statute of limitations or has been released, T may assert the bar even when D chooses not to.12 The bar defeats the main claim, and with the main claim gone the claim over has nothing left to pass along.
The borrowed right reaches defenses on the merits and stops short of defenses personal to D. T cannot argue that the court lacks personal jurisdiction over D, that D was improperly served, or that the case was filed in an improper venue.13 Those objections ask whether D is properly before this court, not whether P’s claim is good, and D may be content with the forum. A limitations bar is the opposite kind of defense: it goes to the merits of P’s claim, and T’s exposure shrinks with it.
Personal jurisdiction shows the line most clearly, because the same objection may belong to T or to D depending on whose contacts with the forum are in question.
The two provisions therefore differ in verb and in target. Rule 14(a)(2)(A) says “must” and points at the claim against T, so T’s own Rule 12 defenses are its responsibility. Rule 14(a)(2)(C) says “may” and points at P’s claim, so the defenses it reaches are D’s, borrowed for protection and limited to those that do not turn on D’s personal circumstances. Raising one kind neither requires nor replaces raising the other.
Claims Between Plaintiff and Third Party
Rule 14(a)(2)(B) governs the line from T back to D. T “must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g).”16 T may also implead parties of its own under Rule 14(a)(5).17 On the claim over, T and D are opposing parties, so the ordinary counterclaim rules govern them. A claim arising from the transaction or occurrence behind D’s claim is compulsory under Rule 13(a), and any other claim T has against D is permissive under Rule 13(b). A roofing subcontractor impleaded for indemnity, for example, must plead its unpaid bill for that same job against the contractor in the impleader action. An unrelated bill from a different job it may plead but need not.
Rule 14(a)(2)(D) draws the line from T to P: T “may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.”18 The test looks to the main claim, not to the claim over, and “may” makes the claim optional. Said, once impleaded, may assert against France a claim from the same transaction as France’s suit. He may not assert just any claim he holds against France, because the provision confines him to the transaction behind the main claim.19
The invoice has another way in. A party that has asserted one claim authorized by a joinder rule may add any other claims it has against that adversary under Rule 18(a), as the next subsection explains.20
A point of labeling trips students at this stage. Said’s claim against France is not a counterclaim when Said asserts it. Rules 13(a)(1) and 13(b) define a counterclaim as a claim against an “opposing party,” and before Said asserts a claim, he and France are not opposing parties, because France’s claim runs against DeLesseps and not against Said.21 Rule 14(a)(2)(D) itself authorizes the claim, and writers often call it technically neither a counterclaim nor a crossclaim, though it is better viewed as a kind of crossclaim against a coparty.22 Once Said asserts it, he and France are opposing parties, and the counterclaim rules of Rule 13 apply between them.23
Rule 14(a)(3) opens the line from P to T. After P asserts such a claim, T must assert any Rule 12 defense and any Rule 13(a) counterclaim, and may assert any Rule 13(b) counterclaim or Rule 13(g) crossclaim.24 The plaintiff controls whether to use the provision. The initial pleader has the first say in structuring the suit, within limits, and between those limits decides whom to join.25 In a standard illustration, Paula sues Dave for breach of a house-construction contract, and Dave impleads Ted. Paula then alleges that Ted conspired with Dave to induce her to pay for an improperly constructed house. That deceit claim arises from the same construction transaction as her breach claim, so Rule 14(a)(3) permits it.26 A claim by Paula against Ted on some unrelated matter falls outside the text of the provision.
Permission under the joinder rules answers only whether a claim may join the case. Whether the court has subject-matter jurisdiction over it is a separate question, taken up in the jurisdiction section.27
Adding Claims Under Rule 18
Rule 14(a)(1) lets a defending party serve a summons and complaint only on a nonparty who “is or may be liable to it for all or part of the claim against it.”31 That requirement is the door into the case, and even a proper derivative claim does not guarantee entry as of right. The court weighs the efficiency of joinder against prejudice to the parties and may later sever the third-party claim or try it separately.32 Rule 18(a) governs what D may do once T is inside. As amended in 1966, it provides that “a party asserting a * * * third-party claim, may join, as independent or as alternative claims, as many claims as it has against an opposing party.”33 The added claims may be related or unrelated to P’s claim,34 so D can settle its other differences with T in a single action.35
The two rules run in sequence, and the sequence is the doctrine. Rule 14 comes first because it alone brings an outsider before the court. Rule 18 comes second because it adds claims only between parties who are already adversaries in the case. DeLesseps, sued by France for faulty construction, cannot summon Said into the case merely over some missing camels, because that claim passes none of France’s recovery to Said. If DeLesseps first impleads Said on a proper indemnification claim, though, he may add the camel claim to it.36
Each half of the sequence has a reason. The strict entrance guards the case: without it, a defendant could expand the lawsuit with tangential claims that share few witnesses or factual or legal issues with the main claim, so the rule-makers confined impleader to nonparties who “may be liable to it for all or part of the claim against it.”37 The generous second step costs little once T is in, because the Rules might as well let D settle all her differences with T in one action.38 Before the 1966 amendment, it was uncertain how far a defendant could join other claims against a third-party defendant with the claim over, and whether it could demand more than the plaintiff sought. Since the amendment, a defendant who has asserted a claim suitable for impleader may join all of its other claims against the third-party defendant.39 In one case, a subcontractor sued by a general contractor impleaded its supplier, alleging that the supplier’s negligence caused both a breach of the subcontract and a loss of profit. The holding let the subcontractor claim more from the supplier than the general contractor claimed from it.40
Lehman shows both steps in one lawsuit. The FDIC’s third-party complaint had three counts. The first two sought indemnification and contribution on Lehman’s claims, and the third sought judgment against Roffman, as guarantor, for the outstanding loan balance.41 The first two counts fit Rule 14(a)(1) because they asked Roffman to bear all or part of the FDIC’s liability to Lehman. The third was an independent claim premised on Roffman’s guaranty. The party now standing in the FDIC’s shoes acknowledged that the FDIC could not have brought it as a stand-alone third-party claim under Rule 14(a), but argued that it was validly joined with the first two counts under Rule 18(a).42 The court agreed that the FDIC was entitled to implead Roffman under Rule 14(a) and had appropriately joined the guaranty claim under Rule 18(a).43
A multiparty example follows the same path. Yee joined Protect and Edison as codefendants, and Edison impleaded Garza and Preferred under Rule 14(a)(1), claiming they must reimburse it for Yee’s damages if Edison is held liable. Edison then added a second claim, for damage to its lines, under Rule 18(a). The rule allows a party, once it has properly made another party an adversary, to add any other claims it has against that party.44
Permission under Rule 18(a) answers only whether the pleading rules allow the claim, and the federal court still needs power to hear it. An added claim needs an independent basis for federal jurisdiction unless it arises from the same transaction or occurrence as a claim over which the court has original jurisdiction, which brings it within supplemental jurisdiction.45 In a textbook illustration, Halsey sues MacArthur, and MacArthur impleads Spruance for contribution and then adds a libel claim against Spruance. MacArthur could not have impleaded Spruance on the libel claim alone, because it does not satisfy Rule 14(a)’s requirement that Spruance may be liable to him for all or part of Halsey’s claim, but once he has impleaded Spruance on a proper claim he may add the libel claim. Supplemental jurisdiction covers the contribution claim, which arises from the same nucleus of operative facts as Halsey’s jurisdictionally sufficient claim. It does not cover the libel claim, which is unrelated to the main claim and so is not part of the same case or controversy under § 1367(a), and a state-law claim between nondiverse parties has no independent basis either.46 An added claim that carries its own footing fares differently. A state-law claim between diverse parties for more than $75,000 falls within diversity jurisdiction directly, and supplemental jurisdiction is unnecessary where a direct basis exists.47
Rule 18(a)’s permission is not peculiar to impleader, since any party asserting a claim against an opposing party may seek to add others, and the request can come late. In one illustration, Smith sues Bryan for breach of the contract, alleging that Bryan used the wrong grade of cement. Three years in, with discovery complete and trial imminent, Smith moves to amend to add a negligence claim that Bryan poured the foundation in cold weather, causing it to crumble.48 The motion raises a timing problem on top of the joinder question.