CIVIL PROCEDURE CLASS 18
Professor Fischer
Columbus School of Law
The Catholic University of America
October 8, 2003
WRAP-UP OF LAST CLASS
 We discussed the rules for adding claims against
existing parties (cross-claims and counterclaims)
(FRCP 13)
 REMINDER – big picture - JOINDER
RULE 13(h)
Allows additional parties to be joined to a
counterclaim or cross-claim under Rules 19 or 20
Rule 13(i)
 Provides for separate trials (R. 42(b))/or and
separate judgments (R. 54(b)) on
counterclaims or cross-claims due to the
potential of such claims to confuse juries
 Note R. 42(b) provides for separate hearings
in the same trial; severance of parties under
R. 21 will result in separate trials as will
exercise of court’s discretion under R. 20(b)
FRCP 14: IMPLEADER
 What is IMPLEADER (also known as third
party practice) and what is its PURPOSE?
FRCP 14: IMPLEADER
 What is the defendant called in third-party
proceedings?
 THIRD-PARTY PLAINTIFF (TPP)
 What is the impleaded person called?
 THIRD PARTY DEFENDANT (TPD)
DISTINGUISING IMPLEADER,
 From COUNTERCLAIMS?
 From CROSS-CLAIMS?
Who can be joined under FRCP
14?
 Persons, not already parties, who, under applicable
law, may be obligated to reimburse the D .
 What are some examples?
 e.g. tortfeasor seeks contribution or indemnity
from others who may be liable to P if D is found
liable but whom P has not sued
 OR someone not a party who has acted a a
guarantor of a transaction and who will be liable
under the guarantee if D is found liable
 MUST SUCH PERSONS BE JOINED?
HYPO
 Assume the Massachusetts contribution
statute applies. Souter is involved in a car
accident with two other drivers, Scalia and
Rehnquist. Souter sues Scalia for
negligence. Can Scalia implead Rehnquist
on the basis that his negligence also caused
Souter’s injuries?
HYPOTHETICAL
 Assume the Massachusetts contribution
statute applies. Souter is involved in a car
accident with two other drivers, Scalia and
Rehnquist. Souter sues Scalia for
negligence. Can Scalia implead Rehnquist
on the basis that it was Rehnquist who was
negligent, not Scalia?
SERVICE REQUIREMENTS
 Hypo: Souter is involved in a car accident
with two other drivers, Scalia and
Rehnquist. Souter sues Scalia for
negligence. Scalia wants to implead
Rehnquist on the basis that his negligence
also caused Souter’s injuries.
 Advise Scalia as to what rule governs
service and filing of a third-party complaint.
Timing of Impleader Claims
 At what stage of the action can a third party complaint be served?
 At any time (14(a))
 When is the leave of court required?
 If third-party complaint is filed more than
10 days after answer is served
Relation of third-party claims to
original claim
 Can a D make a third-party claim under
FRCP 14 that is unrelated to the claims
against that D?
 No, the third-party claim must relate to the
main claim and must depend on the
outcome of the main action. See U.S. v.
Olavarrieta at CB p. 332
YET MORE PARTIES
 Can a TPD implead other parties and if so,
in what circumstances?
 If a TPD impleads someone, what is that
person called?
 That person is a fourth-party defendant
 Diagram: P-----D/TPP-------TPD------FPD
 Can this go on and on forever?
SEPARATE TRIALS
 What provision of FRCP 14 provides for
separate trials?
 To prevent overly complex trials that would
confuse the trier of fact, 14(a) provides“Any party may move to strike the thirdparty claim or for its severance or separate
trial.”
 Also don’t forget rules 42(b) and 21!
Counterclaim Ds and impleader
 Can a P who is a counterclaim-D implead
third parties and if so, in what
circumstances? What provision of the
FRCP governs this?
D
P
T
PLEADING REQUIREMENTS FOR
THIRD-PARTY COMPLAINTS
 A third-party complaint must comply with FRCP 8
and 11
 8(a) “A pleading which sets forth a claim for
relief, whether an original claim…or third-party
claim shall contain …(2) a short and plain
statement of the claim showing that the pleader is
entitled to relief”
 Rules 12 (defenses) and 13 (counterclaims/cross
claims) also apply
PLAINTIFFS AND THIRDPARTY Ds
 Can a P sue a person joined as a TPD and if so, in
what circumstances?
 Yes, so long as the P’s claim arises out of the same
transaction or occurrence as the original claims.
This is discretionary, not mandatory.
 If the TPD has a counterclaim against the P it is
governed by R. 13
 If more than one TPD is sued by a P the TPDs can
cross-claim against each other subject to R. 13(g)
– this is permissive
THIRD-PARTY D and
PLAINTIFF
 Can a TPD claim against the original
plaintiff and if so, in what circumstances?
 Yes, if the claim arise out of the same
transaction or occurrence.
 TPD’s claim(s) against the P are generally
permissive unless the P has already sued
TPD, in which case the TPD’s claim(s)
would likely be compulsory counterclaims
JURISDICTION AND THIRD-PARTY
CLAIMS
 There must be an basis for the federal court to
have subject matter jurisdiction over the third
party claim – either diversity, jurisdiction, or
supplemental jurisdiction
 Third party claims must also satisfy requirements
of personal jurisdiction (remember Rule
4(k)(1)(B) special 100 mile bulge rule that slightly
extends personal jurisdiction for these claims)
 Venue requirements don’t apply to R. 14 claims
GROSS V. HANOVER
INSURANCE CO.
 Who did defendants
seek to implead and
for what claims?
 This is a subrogation
claim. What does that
mean?
GROSS V. HANOVER
INSURANCE CO.
 What arguments does
P mak
 e in support of their
contention that leave
to implead should be
denied?
 How does the court
rule on defendant’s
motion? What is the
court’s reasoning?
PRACTICE EXERCISE 13
 Please see your casebook at p. 334
 Please hand in