This post explains the procedures for impleading a nonparty by filing a third-party complaint under Rule 14. Impleader is an action that parties defending claims may take to bring nonparties into the litigation. In the typical situation where impleader occurs, the plaintiff sues some, but not all, of the potential defendants involved in the incident underlying the lawsuit. One or more of the named defendants then files a third-party complaint joining the unnamed actors.

Basic Test for Filing a Third-Party Complaint

The basic test for impleading a nonparty in a third-party complaint is much narrower than the test for most of the other joinder rules. Many joinder rules allow joinder of claims that arise out of the same “transaction or occurrence” as other claims already in the case. Crossclaims are one example; Rule 13(g) allows joinder of a crossclaim by one party against a coparty if the crossclaim arises out of the same transaction or occurrence as a claim asserted against the crossclaiming party.

Instead of conditioning impleader on asserting a claim arising out of the same transaction or occurrence as the claim asserted against the impleading party, Rule 14(a)(1) conditions impleading a nonparty on asserting that the nonparty is liable for some or all of the impleading party’s liability. Courts sometimes refer to this type of liability as “derivative” of the third-party plaintiff’s liability—essentially contribution liability. See, e.g., Hogan, v. United States, 2024 WL 4471680 (D. Or. 2024).

Including Other Claims

Although a contribution or derivative liability claim is a prerequisite for impleading a nonparty, the defendant/third-party plaintiff may have suffered its own damages in the events that form the basis for the lawsuit. While Rule 14 does not authorize the third-party plaintiff to seek its own damages in the third-party complaint, Rule 18(a) comes to the rescue in such situations. Rule 18(a) provides that, once a claiming party has asserted one proper claim against a defending party, the claiming party may assert any other claim it has against that defending party, without any restrictions regarding the nature of that other claim (i.e., the other claim may be factually unrelated to the first claim and may involve entirely different legal theories). Thus, once a third-party plaintiff asserts one proper Rule 14(a) claim seeking contribution, it may assert any other claims it has against the third-party defendant. See, e.g., Davis Pickering & Co. v. Worley Field Servs., Inc., 2023 WL 2163886 (E.D. Pa. 2023).

Procedures

The procedure for impleading a nonparty is different from the procedure for adding most other sorts of claims. In contrast to counterclaims and crossclaims, which are not asserted as  their own stand-alone pleadings and instead are asserted as part of another pleading such as an answer, Rule 7(a) defines a third-party complaint as a separate pleading. Rule 14(a)(1) provides defending parties with a right to file a third-party complaint within 14 days after serving its original answer. After that period has passed, a party needs leave of court to file a third-party complaint. Such leave is discretionary and turns on whether impleading a third-party defendant will disadvantage the existing action or promote judicial efficiency. Thus, lawyers knowing that they intend to implead nonparties are well advised to file their third-party complaints within that 14-day window following service of their original answer to eliminate the court’s discretion to deny leave. Sometimes, though, the information necessary to decide whether to assert a third-party complaint comes out in discovery, long after the end of the 14-day window for filing as of right.

Once the third-party plaintiff files a third-party complaint, much of the pleading proceeds in the same manner as it would for a normal complaint. The third-party defendant may file a Rule 12 motion, must answer the third-party complaint, must file compulsory counterclaims, and may file permissive counterclaims, crossclaims, or its own third-party complaints. F.R.C.P. 14(a)(2). However, there are a few wrinkles particular to third-party complaints.

Rules 14(a)(2)(D) and 14(a)(3) authorize the original plaintiff and the third-party defendant to assert claims directly against each other, as long as those claims arise out of the same transaction or occurrence as the claim used to implead the third-party defendant. See, e.g., Boyce v. Macy’s Retail Holdings, LLC, 2024 WL 1694077 (N.D. Ga. 2024). Again, though, once a plaintiff or third-party defendant has asserted one proper claim under Rule 14, Rule 18 would authorize any other claims.

If the plaintiff chooses to use the right to assert a claim directly against the third-party defendant, another unusual aspect of third-party practice kicks in. Because the third-party defendant is only a participant in the litigation by virtue of its potential derivative liability—flowing from the third-party plaintiff’s liability to the original plaintiff—the third-party defendant may defend a claim brought by the original plaintiff by asserting its own personal defenses or the defenses of the third-party plaintiff. See, e.g., Signify N. Am. Corp. v. Menard, Inc., 2023 WL 5647789 (W.D. Wis. 2023). In other words, since a third-party defendant is only joined by an assertion that it is liable for some or all of the original defendant’s liability, a defense to the original defendant’s liability should also inure to the benefit of the third-party defendant.

Thus, for example, a third-party defendant might file a motion challenging the plaintiff’s Rule 14(a)(3) claim asserting that the plaintiff failed to state a claim against the third-party defendant (a defense personal to the third-party defendant) or that the plaintiff’s claim against the third-party plaintiff was untimely (a defense of the third-party plaintiff). See, e.g., Practice in Third-Party Actions—Defenses By the Third-Party Defendant Against the Original Plaintiff, 6 Fed. Prac. & Proc. Civ. § 1457 (3d ed.).

Subject-Matter Jurisdiction

Of course, every claim in federal court needs some basis for federal subject-matter jurisdiction. By definition, an impleader claim asserting contribution or derivative liability will virtually always arise out of the same case or controversy as one or more of the claims in the original complaint, and thus will qualify for supplemental jurisdiction. However, if one of the parties seeks to use Rule 18 to assert an unrelated claim—one that is not part of the same case or controversy as a claim in the original complaint—that unrelated claim will require a basis of original jurisdiction (such as federal question jurisdiction or diversity jurisdiction).

Furthermore, when the plaintiff exercises the right under Rule 14(a)(3) to bring a claim directly against the third-party defendant, the exception to supplemental jurisdiction, sometimes referred to as the “B-Bar” because it is located in § 1367(b), is implicated. The B-Bar prohibits the use of supplemental jurisdiction when the following four requirements are all met: (1) the only basis of original jurisdiction is diversity jurisdiction; (2) the claim in question is brought by an original plaintiff (or someone seeking to intervene as a plaintiff); (3) the plaintiff to the claim was joined by Rule 19 or 24 or the defendant to the claim was joined by Rule 14, 19, 20, or 24; and (4) exercising supplemental jurisdiction would be “inconsistent” with the requirements for diversity jurisdiction.

This exception codifies the Supreme Court’s limit on ancillary jurisdiction (the common law predecessor to supplemental jurisdiction) announced in Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978). In that case, the plaintiff, whose husband was electrocuted in a construction accident, deliberately omitted Owen Equipment—the logical target defendant, but a citizen of the same state as the plaintiff—so that the plaintiff could file the complaint in federal court under the court’s diversity jurisdiction. After the defendant predictably impleaded Owen Equipment, the plaintiff amended her complaint to add a claim against Owen Equipment. The Court held that allowing such an exercise of ancillary jurisdiction would undermine the limitations of diversity jurisdiction.

A Rule 14(a)(3) claim by a plaintiff directly against the third-party defendant is likely to be disqualified from supplemental jurisdiction by the B-Bar if the basis for subject-matter jurisdiction over the original complaint is limited to diversity jurisdiction—all four of the B-Bar’s requirements will be satisfied. Accordingly, be hyper-sensitive to supplemental jurisdiction issues and the B-Bar when a plaintiff is seeking to bring a claim against a third-party defendant under Rule 14(a)(3). No need for such heightened sensitivity occurs when a third-party defendant seeks to bring a claim against the original plaintiff under Rule 14(a)(2)(D), however, as such a claim is not brought by an original plaintiff and thus the second element of the B-Bar would not be satisfied. See, e.g., Boyce v. Macy’s Retail Holdings, LLC, 2024 WL 1694077 (N.D. Ga. 2024).

Severing Third-Party Claims

Rule 14(a)(4) contains another procedural quirk of third-party practice. It authorizes a plaintiff to request that the court sever or strike third-party claims or that the court try them separately. This rule allows the court to balance the added complexity and risk of jury confusion caused by the third-party claims against the efficiencies of resolving all of the claims at one time, and the court has considerable discretion in ruling on a Rule 14(a)(4) motion. See United States v. Cacace, 796 F.3d 176, 192 (2d Cir. 2015). Every third-party complaint adds some complexity, however, so the party seeking relief under Rule 14(a)(4) must demonstrate a burden beyond that attendant with every third-party claim. See, e.g., Signify N. Am. Corp. v. Menard, Inc., 2023 WL 5647789 (W.D. Wis. 2023).

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Steve is one of the authors of The Federal Litigator, a monthly publication from Thomson Reuters that reports on cases of general interest to those who practice in the federal courts. Each fall, The Federal Litigator reports on amendments to the federal court rules. This article is an excerpt from the November 2024 edition of The Federal Litigator that is reprinted with the publisher’s permission (© 2024 Thomson Reuters). Further reproduction of any kind is strictly prohibited. For further information about this publication, please click here, or call 800.328.9352. Individual case summaries can be accessed through Westlaw. Steve is also one of the authors of the Federal Civil Rules Handbook, an annual publication from Thomson Reuters containing detailed, practical commentary providing a blueprint for the application of the Federal Rules of Civil Procedure and related jurisprudential concepts. To purchase the Handbook, please click here.