Federal Practice and Procedure

Charles Alan Wright

Arthur R. Miller

Mary Kay Kane

(2d ed. 1990)

§ 1457. ---- DEFENSES BY THE THIRD-PARTY DEFENDANT AGAINST THE ORIGINAL PLAINTIFF

§ 1458. ---- CLAIMS BY THE THIRD-PARTY DEFENDANT AGAINST THE ORIGINAL PLAINTIFF

§ 1459. ---- PLAINTIFF'S RIGHTS AGAINST THE THIRD-PARTY DEFENDANT

§ 1457. ---- DEFENSES BY THE THIRD-PARTY DEFENDANT AGAINST THE ORIGINAL PLAINTIFF

For the purpose of defense against plaintiff's complaint, a third party defendant is in the law suit as an adverse party to the same extent as the defendant and must act accordingly. This assures a third party defendant complete defense protection in an action where he may be liable for the judgment in favor of the plaintiff. [FN6]

If the original action is brought under the Federal Employers' Liability Act, or is based on any theory that is not vulnerable to certain defenses, defendant's inability to assert contributory negligence against plaintiff will preclude a third-party defendant from asserting that defense against plaintiff with any expectation of success. But the third-party defendant is free to allege the original plaintiff's contributory negligence as a defense to the third-party plaintiff's action and thereby bar recovery on the impleader claim. [FN12]

A third-party defendant may assert only those defenses that the third-party plaintiff has not waived under Rule 12(g) or Rule 12(h). [FN13] A third- party defendant's right to assert defenses under Rule 14(a) cannot be used to revive a defense against the original plaintiff that the original defendant has failed to assert in a timely fashion. But this should not be an ironclad rule. For example, when it appears that impleader has been delayed intentionally until the time for asserting certain defenses has passed or other circumstances indicate collusion between the parties to the original action, the third-party defendant should not be bound by the third-party plaintiff's inaction.

If plaintiff asserts a claim against the third-party defendant pursuant to Rule 14, the seventh sentence of Rule 14(a) provides that the third-party defendant "shall assert any defenses as provided in Rule 12 ***." [FN14] As a result, a third-party defendant may advance not only the third-party plaintiff's defenses, but also any personal defenses under Rule 8 or Rule 12 directly against the original plaintiff. For example, a third-party defendant might object that plaintiff has not stated a claim upon which relief may be granted [FN15] or that the court lacks personal jurisdiction over him for purposes of adjudicating plaintiff's claim. If the court has personal jurisdiction over the third-party defendant in the third-party action, however, the latter defense, along with a challenge to service of process, will be rejected because once the court has established personal jurisdiction over a party it will retain jurisdiction for purposes of adjudicating any related proceedings. [FN16]

Similarly, although the third-party defendant may challenge venue under Rule 12(b)(3), as a practical matter that challenge probably will be unsuccessful. Once venue has been satisfied in the original action, venue as to any parties added under Rule 14 usually is considered ancillary. [FN17] By the same token, the success of a challenge to the court's subject-matter jurisdiction over the third-party claim will depend upon whether the court considers claims by the original plaintiff against the third-party defendant to be ancillary to the original proceeding. [FN18]

A third-party defendant also may assert any affirmative defense under Rule 8(c) [FN19] against the claim interposed by plaintiff. For example, in Monarch Industrial Corporation v. American Motorists Insurance Company, [FN20] an action involving a shipment of steel that arrived in a damaged condition, the original defendant had procured an extension of the applicable one year statute of limitations from the ocean carrier that had transported the steel. More than a year after the claim arose, but within the terms of the extension, defendant brought the carrier in as a third-party defendant under Rule 14. Plaintiff then attempted to assert a claim directly against the third- party defendant. The court held, however, that the statute of limitations had run as to any claims by plaintiff since the extension was granted only in favor of defendant.

[FN1]. Defenses

Keystone Paper Converters, Inc. v. Neemar, Inc., D.C.Pa.1983, 562 F.Supp. 1046, 1049, quoting Wright & Miller.

A third-party complaint that the ship-owner brought against the carrier to obtain indemnification for alleged negligence in packing a crate that allegedly caused injury to a longshoreman was not subject to dismissal on the ground that the defense of the case was not tendered to the carrier prior to the time the shipowner settled with the longshoreman, when the carrier was not prejudiced thereby in that the longshoreman had completed his direct testimony when the settlement was made and the carrier's counsel had cross-examined him at length and, under the rules, the carrier could assert any defense that the shipowner had against the longshoreman. Gellman v. Costa Armatori, S.P.A., Maria, Costa, D.C.N.Y.1975, 402 F.Supp. 216, 222, citing Wright & Miller.

The provision in Rule 14 permitting the third-party defendant to assert any defenses against plaintiff that the third-party plaintiff has to plaintiff's claim is permissive, not mandatory. Pettus v. Grace Line, Inc., D.C.N.Y.1958, 166 F.Supp. 463.

[FN2]. "Original plaintiff"

The term "original plaintiff" means the party who asserted the claim against the third-party plaintiff. Thus, in a situation in which a plaintiff brings in a third-party defendant pursuant to Rule 14(b) to defend against a counterclaim by defendant, the third-party defendant may assert against defendant any defense that plaintiff has against defendant on the counterclaim. See s 1464.

[FN3]. Third-party defendant bound Although plaintiffs did not amend their complaint to join the impleaded party as a defendant and the latter did not defend against plaintiffs' claim, he is bound by the adjudication of defendant's liability because under Rule 14(a) the third-party defendant has the right to assert against plaintiff any defenses that defendant had. Knell v. Feltman, C.A.D.C.1949, 174 F.2d 662.

Prior to its amendment in 1948, Rule 14(a) provided: "The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to plaintiff, as well as his own to the plaintiff or the third-party plaintiff." The amendment struck the sentence, according to the Advisory Committee's Note, "not to change the law, but because the sentence states a rule of substantive law which is not within the scope of a procedural rule." The Advisory Committee's Note to the 1948 amendment of Rule 14(a) is reprinted in the Appendix to vol. 12.

See also

Horton v. Moore-McCormack Lines, Inc., C.A.2d, 1964, 326 F.2d 104.

Caputo v. U.S. Lines Co., C.A.2d, 1963, 311 F.2d 413, certiorari denied 83 S.Ct. 1871, 374 U.S. 833, 10 L.Ed.2d 1055.

Bosin v. Minneapolis, St. Paul & S. Ste. Marie R.R. Co., D.C.Wis.1960, 183 F.Supp. 820, affirmed sub nom. Minneapolis, St. Paul & S. Ste. Marie R.R. Co. v. City of Fond du Lac, C.A.7th, 1961, 297 F.2d 583.

Hartford Acc. & Indem. Co. v. Levitt & Sons, Inc., D.C.Pa.1959, 24 F.R.D. 230.

Atlantic Coast Line R. Co. v. U.S. Fidelity & Guar. Co., D.C.Ga.1943, 52 F.Supp. 177.

See also the discussion of claim and issue preclusion in volume 18.

But compare

When defendant third-party plaintiff told the jury, in its opening remarks, that it would not deny liability to plaintiff and was only seeking indemnity from the third-party defendant, the third-party defendant's motion for a directed verdict in favor of plaintiff against defendant, third-party plaintiff, which was granted, did not necessarily bind the third-party defendant to the third-party plaintiff's theory of liability and did not require that the third-party plaintiff's motion for summary judgment against the third-party defendant be granted. Dewald v. Minister Press Co., C.A.6th, 1974, 494 F.2d 795.

[FN4]. Protect third-party defendant

In Glick v. White Motor Co., C.A.3d, 1972, 458 F.2d 1287, 1291 n. 7, the Third Circuit held that the language in Rule 14(a) permitting the third-party defendant to assert defenses and claims against the original plaintiff served to enable the third-party defendant to protect himself since he might be liable to the original defendant and indicated that he should "be permitted to take part in the trial and conduct examination and cross-examination as the rules of evidence permit."

Tejas Dev. Co. v. McGough Bros., C.A.5th, 1948, 167 F.2d 268.

Williams v. Keyes, C.A.5th, 1942, 125 F.2d 208, certiorari denied 62 S.Ct. 1297, 316 U.S. 699, 86 L.Ed. 1768.

Carey v. Schuldt, D.C.La.1967, 42 F.R.D. 390, 394 n. 4.

[FN5]. F & D Property Company case

C.A.10th, 1967, 385 F.2d 97.

[FN6]. Assures protection

385 F.2d at 100 (per Pickett, J.).

[FN7]. Contributory negligence Carey v. Schuldt, D.C.La.1967, 42 F.R.D. 390.

Dziedzina v. Dolphin Tanker Corp., D.C.Pa.1962, 31 F.R.D. 249.

Schonberger v. Blumenkranz of Lakewood, New Jersey, Inc., D.C.N.J.1958, 23 F.R.D. 16.

[FN8]. Assumption of risk

Dziedzina v. Dolphin Tanker Corp., D.C.Pa.1962, 31 F.R.D. 249.

Schonberger v. Blumenkranz of Lakewood, New Jersey, Inc., D.C.N.J.1958, 23 F.R.D. 16.

[FN9]. Answer to plaintiff's complaint

International Tools (1973), Ltd. v. Arctic Enterprises, Inc., D.C.Mich.1977, 75 F.R.D. 70, 74, citing Wright & Miller.

Felder v. Skibs A/S Idaho, D.C.Md.1964, 225 F.Supp. 571.

[FN10]. Answer to third-party complaint

International Tools (1973), Ltd. v. Arctic Enterprises, Inc., D.C.Mich.1977, 75 F.R.D. 70, 74, citing Wright & Miller.

Under the provision in Rule 14(a) permitting the third-party defendant to assert any defense that the third-party plaintiff has to plaintiff's claim, the third-party defendant must answer plaintiff's complaint. M.V.M., Inc. v. St. Paul Fire & Marine Ins. Co., D.C.N.Y.1957, 20 F.R.D. 296.

But see

The M.V.M. decision was specifically repudiated in Carey v. Schuldt, D.C.La.1967, 42 F.R.D. 390, 395. The court reasoned as follows: "The answer to the third-party complaint is the most logical place in which to raise the defenses. For it is the third-party plaintiff who has called the third-party defendant to the fray, and it is only natural to expect the third-party defendant to state in his answer to the third-party plaintiff the reasons why he should not be held liable, whether those reasons relate to the plaintiff's claim against the defendant or to the defendant's claim against the third-party defendant. This simplifies the pleading phase of the litigation which is one of the aims of the Federal Rules. Further, it is in complete accord with the basic tenet of notice pleading since Rule 5(a) requires that a copy of the third- party complaint and answer be served upon all the parties to the suit."

See also

Falls Indus., Inc. v. Consolidated Chem. Indus., Inc., C.A.5th, 1958, 258 F.2d 277.

Wiggins v. City of Philadelphia, D.C.Pa.1963, 216 F.Supp. 241, affirmed C.A.3d, 1964, 331 F.2d 521.

[FN11]. Personal defenses

Brandt v. Olson, D.C.Iowa 1959, 179 F.Supp. 363 (venue).

But see

See the discussion of jurisdiction and venue in s 1445.

[FN12]. FELA actions

Ft. Worth & Denver Ry. Co. v. Threadgill, C.A.5th, 1955, 228 F.2d 307.

Panichella v. Pennsylvania R.R. Co., D.C.Pa.1958, 167 F.Supp. 345, certiorari denied 80 S.Ct. 370, 361 U.S. 932, 4 L.Ed.2d 353. Lawrence v. Great No. Ry. Co., D.C.Minn.1951, 98 F.Supp. 746, affirmed sub nom. Waylander-Peterson Co. v. Great No. Ry. Co., C.A.8th, 1953, 201 F.2d 408.

See also s 1455.

[FN13]. Rules 12(g), 12(h)

See vol. 5, ss 1384-1389, 1390-1397.

See also

Falcon Tankers, Inc. v. Litton Sys., Inc., Sup.Ct.Del.1972, 300 A.2d 231, 237, citing Wright & Miller.

[FN14]. Assert Rule 12 defenses

Gray v. Gray, Ct.App.Ala.1978, 359 So.2d 414, 416, citing Wright & Miller.

[FN15]. Failure to state a claim

Reading the complaints of plaintiff and the third-party plaintiff, in an action to recover for permanent severe neurological damage allegedly caused by plaintiff's contact with certain products used to finish automobiles, together and construing them in the light most favorable to the third-party plaintiff, it could not be concluded that plaintiff could prove no set of facts in support of his claim that would entitle him to relief and thus the third-party defendant, a German manufacturer of automobile repair products, was not entitled to the dismissal of the complaint for failure to state a claim upon which relief could be granted. Novinger v. E.I. DuPont deNemours & Co., D.C.Pa.1981, 89 F.R.D. 588.

Duarte v. Christie Scow Corp., D.C.N.Y.1939, 27 F.Supp. 894.

[FN16]. Personal jurisdiction

See the discussion of personal jurisdiction in s 1445.

See also

Gray v. Gray, Ct.App.Ala.1978, 359 So.2d 414, 415, quoting Wright & Miller.

[FN17]. Venue

See the discussion of venue in s 1445.

[FN18]. Subject matter jurisdiction See the discussion of jurisdiction and venue in ss 1444-1445.

[FN19]. Rule 8(c)

See vol. 5, ss 1270-1278.

[FN20]. Monarch case

D.C.N.Y.1967, 276 F.Supp. 972.

See also

Frankel v. Back, D.C.Pa.1965, 37 F.R.D. 545.

Hankinson v. Pennsylvania R.R. Co., D.C.Pa.1958, 160 F.Supp. 709, affirmed on other grounds C.A.3d, 1960, 280 F.2d 249.

Carlise v. Monongahela Ry. Co., D.C.Pa.1954, 16 F.R.D. 426.

Horan v. Pope & Talbot, Inc., D.C.Pa.1953, 119 F.Supp. 711.

Lommer v. Scranton-Spring Brook Water Serv. Co., D.C.Pa.1943, 3 F.R.D. 27.

§ 1458. ---- CLAIMS BY THE THIRD-PARTY DEFENDANT AGAINST THE ORIGINAL PLAINTIFF

The sixth sentence of Rule 14(a) provides that the third-party defendant may assert "any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." This provision, which was added by the 1948 amendment, [FN1] is consistent with the basic purpose of Rule 14, which is to avoid circuity of action and multiplicity of suits. [FN2] Indeed, the Third Circuit has held that a fair reading of the sixth sentence of Rule 14(a) indicates that the third-party defendant should be allowed to take an active part in the trial in terms of examining and cross-examining witnesses. [FN3] As is true of the comparable provision in the seventh sentence of Rule 14(a) permitting plaintiff to assert claims against the third-party defendant, [FN4] the third-party defendant is not required to assert any claim against plaintiff. He may withhold his claim and make it the subject of a separate action.

The third-party defendant must show that the claim against plaintiff arises out of the same transaction or occurrence as the original action and the Third Circuit has held that only "matured" claims may be asserted under the sixth sentence of Rule 14(a). [FN5] Typically this means that the third-party defendant must demonstrate that his grievance involves some of the same evidence, facts, and issues as does the original action so that litigation economy will result from allowing it to be added to the lawsuit. [FN6] For example, in Heintz & Company v. Provident Trademens Bank & Trust Company, [FN7] plaintiff's original claim involved the third-party defendant's authority as plaintiff's employee to establish a checking account with defendant bank in plaintiff's name, from which account the third-party defendant had withdrawn funds. The third-party defendant asserted a claim against the original plaintiff for services rendered as plaintiff's employee. The court concluded that the third-party defendant's claim arose out of the same transaction or occurrence as did the main claim--the employment relationship between plaintiff and third-party defendant.

There is some inconsistency in the cases as to the proper way of denominating claims by the third-party defendant against the original plaintiff. Some courts refer to them as cross-claims [FN8] and other courts call them counterclaims. [FN9] Technically, neither term is appropriate. Claims under the sixth sentence of Rule 14(a) are not counterclaims within the meaning of Rule 13 because the original plaintiff and the third-party defendant are not opposing parties at the time the third-party's claim is interposed. [FN10] Nor are they cross-claims inasmuch as Rule 13(g) requires cross-claims to be asserted against a coparty, and plaintiff and third-party defendant do not fit that description. The denomination of a claim by a third-party defendant against plaintiff is of no practical import when it clearly is within the scope of the sixth sentence of Rule 14(a). As is discussed elsewhere, [FN11] although courts are not agreed as to whether independent subject-matter jurisdiction is required for claims brought under this provision of the rule, the better view is to allow ancillary subject-matter jurisdiction to be asserted. Nonetheless, it would be better simply to describe the claim than to refer to it as a counterclaim or a cross-claim.

[FN1]. Amendment

Prior to the 1948 amendment, the third-party defendant was permitted to assert a "counterclaim" against plaintiff under Rule 13 only when the requisite adversity existed between the two parties. This requirement was satisfied either when plaintiff amended the complaint to assert a claim against the third-party defendant or when the third-party defendant was impleaded on the basis of his liability to plaintiff. When it was decided that the latter type of impleader should be eliminated, see s 1441, the sixth sentence was added to permit all claims arising out of the same transaction or occurrence to be heard and determined in the same action.

See also

Atlantic Nat. Bank of Jacksonville v. First Nat. Bank of Kingston, D.C.Pa.1947, 7 F.R.D. 573. Morris, Wheeler & Co. v. Rust Engineering Co., D.C.Del.1945, 4 F.R.D. 307.

Atlantic Coast Line R. Co. v. U.S. Fidelity & Guar. Co., D.C.Ga.1943, 52 F.Supp. 177.

[FN2]. Purpose of Rule 14

See s 1442.

[FN3]. Active participation

Glick v. White Motor Co., C.A.3d, 1972, 458 F.2d 1287.

[FN4]. Claims by plaintiff

See s 1459.

[FN5]. Matured claim

Stahl v. Ohio River Co., C.A.3d, 1970, 424 F.2d 52.

See also the discussion in s 1451.

[FN6]. Same evidence, facts, and issues

Pitcavage v. Mastercraft Boat Co., D.C.Pa.1985, 632 F.Supp. 842, 850, citing Wright & Miller. Grace v. United Founders Life Ins. Co., D.C.Okl.1971, 53 F.R.D. 8.

Borden Co. v. Sylk, D.C.Pa.1967, 42 F.R.D. 429.

Brown v. First Nat. Bank of Wewoka, Oklahoma, D.C.Okl.1953, 14 F.R.D. 339.

Commercial Banking Corp. v. Indemnity Ins. Co. of No. America, D.C.Pa.1940, 1 F.R.D. 380.

[FN7]. Heintz case

D.C.Pa.1962, 30 F.R.D. 171.

See also

U.S. to Use of Stainless, Inc. v. P.J. Walker Constr. Co., D.C.Cal.1959, 24 F.R.D. 136.

[FN8]. Designated as cross-claims

Borden Co. v. Sylk, D.C.Pa.1967, 42 F.R.D. 429.

Brown v. First Nat. Bank of Wewoka, Oklahoma, D.C.Okl.1953, 14 F.R.D. 339.

[FN9]. Designated as counterclaims

Revere Copper & Brass, Inc. v. Aetna Cas. & Sur. Co., C.A.5th, 1970, 426 F.2d 709.

L & E Co. v. U.S. ex rel. Kaiser Gypsum Co., C.A.9th, 1965, 351 F.2d 880.

Finkel v. U.S., D.C.N.Y.1974, 385 F.Supp. 333.

Grace v. United Founders Life Ins. Co., D.C.Okl.1971, 53 F.R.D. 8 n. 1, citing Wright & Miller.

Union Bank & Trust Co. v. St. Paul Fire & Marine Ins. Co., D.C.Neb.1965, 38 F.R.D. 486.

Heintz & Co. v. Provident Tradesmens Bank & Trust Co., D.C.Pa.1962, 30 F.R.D. 171.

Maltitano v. King Line, Ltd., D.C.N.Y.1961, 198 F.Supp. 399.

Shverha v. Maryland Cas. Co., D.C.Pa.1953, 110 F.Supp. 173.

Bernstein v. N.V. Nederlandsch-Amerikaansche Stoomvaart-Maatschappij, D.C.N.Y.1949, 9 F.R.D. 557.

Morris, Wheeler & Co. v. Rust Engineering Co., D.C.Del.1945, 4 F.R.D. 307.

[FN10]. Counterclaims

Pitcavage v. Mastercraft Boat Co., D.C.Pa.1985, 632 F.Supp. 842, 849, citing Wright & Miller.

When plaintiff failed to assert a claim against the third-party defendant for damage to his property, plaintiff and the third-party defendant never attained the status of "opposing parties" in the proceeding and the third-party defendant was not required to assert therein his claim for fraud against plaintiff as a compulsory counterclaim. Lindquist v. Quinones, D.C.Virgin Islands 1978, 79 F.R.D. 158, 161, citing Wright & Miller.

In James King & Son, Inc. v. Indemnity Ins. Co. of No. America, D.C.N.Y.1959, 178 F.Supp. 146, the third-party defendant denominated his claim against plaintiff a "counterclaim" in order to have it come under the jurisdiction of the court, but the court rejected this denomination and held that it had no jurisdiction over the claim.

U.S. to Use of Stainless, Inc. v. P.J. Walker Constr. Co., D.C.Cal.1959, 24 F.R.D. 136.

In U.S. v. Raefsky, D.C.Pa.1956, 19 F.R.D. 355, 356, the third-party defendant's "counterclaim" against plaintiff was dismissed because plaintiff had asserted no claim against the third-party defendant, and a "counterclaim pre-supposes the existence of a claim against the party filing the counterclaim." This overly literal construction of the third-party defendant's claim clearly defeats the provision of Rule 14(a) allowing the third-party defendant to assert claims against plaintiff. When that claim arises out of the same transaction or occurrence it should be allowed, despite its label.

[FN11]. Discussed elsewhere

See s 1444 at nn. 55-62.

§ 1459. ---- PLAINTIFF'S RIGHTS AGAINST THE THIRD-PARTY DEFENDANT

The original plaintiff need take no action with regard to any third-party claim that has been added to the action. [FN1] However, Rule 14(a) does give plaintiff the opportunity either to move to strike or sever the third-party claim [FN2] or to assert a claim against the third-party defendant. [FN3] The latter option is subject to certain limitations. Subdivision (a) states that plaintiff's claim must arise "out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff." [FN4] Although the general purpose of Rule 14 is to avoid circuity and multiplicity of litigation, [FN5] this limitation on the original plaintiff's freedom to assert a claim against the third-party defendant, which is identical to the limitation on the third-party defendant's right to interpose a claim against plaintiff, [FN6] reflects the countervailing policy of preventing the litigation from expanding to include unrelated claims that might unduly complicate the action. This same consideration is reflected in the standard applied by the courts in determining whether to allow defendant to bring in a third party under Rule 14 in the first instance. [FN7] Also intended to further this purpose, as well as to discourage collusion between the original parties, is the requirement that an independent basis for federal jurisdiction exists for any claim plaintiff desires to assert; unlike the treatment given the typical third-party claim, when plaintiff amends his complaint to assert a claim against the third-party defendant, the courts have not treated plaintiff's claim as ancillary. [FN8]

The fact that the third party has been brought into the action does not revive any claims the original plaintiff may have had against him that should have been asserted earlier but have become unenforceable. Thus, any claim existing between plaintiff and the third-party defendant is subject to the applicable statute of limitations; the statute is neither tolled nor waived upon the third-party defendant's entry into the action but continues to run until plaintiff actually asserts a claim against him, or, if the time period runs before the action is commenced, serves as a bar to the claim. [FN9]

Although Rule 14(a) does not explicitly provide the manner in which plaintiff is to assert the claim, the Advisory Committee Note to the 1948 amendment to Rule 14 states: "the plaintiff may, if he desires, assert directly against the third-party defendant either by amendment or by a new pleading any claim he may have ***." In line with this language, courts have allowed plaintiff to interpose a claim immediately following the appearance of the third-party defendant as a party of record; plaintiff need not wait until the impleaded party has answered the third-party complaint. [FN10] This approach seems logical inasmuch as the third-party defendant is not required to advance any claim he may have against plaintiff in the third-party answer, although, as discussed in the preceding section, he is free to assert a claim against plaintiff that arises out of the transaction or occurrence that is the basis of plaintiff's original claim. Thus, the third-party defendant's answer to the third-party complaint may not relate to any potential claim existing between plaintiff and himself. Under these circumstances, no purpose would be served by forcing plaintiff to wait before presenting a claim.

At the other extreme, there is no specific time period, other than the statute of limitations, within which plaintiff must assert a claim against the third-party defendant under Rule 14(a). Inasmuch as ultimately plaintiff's ability to assert a claim against the third-party defendant is a matter of judicial discretion, the timing of plaintiff's attempt to interpose it will be one factor to be considered by the court in determining whether any prejudice will result if plaintiff's amendment is allowed. [FN11] For example, in Sklar v. Hayes, [FN12] the court allowed plaintiffs to file amended pleadings after a verdict had been rendered in their favor but a motion for a new trial had been granted, stating: " I t does not appear that any of the parties have been prejudiced by the plaintiffs' action. *** T he only effect and force of the amendments is to assure the plaintiffs of another possible prerequisite to an award of judgments against the third-party defendant." [FN13]

It should be noted that Rule 14(a) states that plaintiff "may assert" claims against the third-party defendant, indicating that plaintiff is not required to bring them forward but is free to assert them in a later action. [FN14] However, suppose neither plaintiff nor the third-party defendant asserts a claim against the other, are they adverse parties? The answer to this question has been particularly important in two contexts. First, under the deposition and discovery rules prior to their revision in 1970, Rule 33 interrogatories could be served only on an adverse party. Thus when neither plaintiff nor the third-party defendant had interposed a claim directly against the other, courts confronted with the explicit language of Rule 33 felt obliged to require a demonstration that the parties were treating each other in an adverse manner before they would allow the interrogatories to be served. [FN15] The necessity of finding adversity has been eliminated by the revised language of Rule 33, which authorizes interrogatories to be served on "any other party." [FN16]

The question of adversity also is important because of its relationship to the doctrine of former adjudication. If the parties are not adverse, then the determination of issues between the original parties or the parties to the third-party claim, regardless of how identical they might be with issues that are part of the unasserted claims existing between plaintiff and the third- party defendant, may not be given issue preclusion effect in a later action between plaintiff and the third-party defendant. [FN17] In diversity litigation the question whether adversity is necessary in order to bind the third-party defendant must be resolved according to the forum state's principles of former adjudication. [FN18]

This problem was of greater importance prior to the 1948 amendment to Rule 14(a), which eliminated the provision allowing defendant to implead a party solely on the ground that that party might be liable to plaintiff. [FN19] When that provision was in effect the courts were particularly concerned about requiring an amendment by plaintiff because, if the only basis for impleader was the possible liability of the third-party defendant to plaintiff, issues could not be framed or litigated between plaintiff and third-party defendant unless one of them asserted a claim against the other. [FN20] To bind the parties even without the assertion of such a claim would force plaintiff, if he desired to have any adjudication on the merits of his claim, to litigate the claim against the third-party defendant concurrently with the main action, thereby eliminating the court's traditional policy of allowing plaintiff to choose the time, forum, and manner in which to press his claim. However, even before the 1948 revision of the rule a few courts recognized that an amendment was not the only way to put the parties in an adverse position. [FN21]

Since the 1948 amendment the courts generally have tended to deal with the question of adversity by concluding that, except for those suits in admiralty specially provided for in Rule 14(c), [FN22] a formal amendment of plaintiff's complaint is not necessary if the parties actually treat each other in an adverse manner. [FN23] Indeed, one court has indicated that because any liability proven against defendant could lead to the third-party defendant being subjected to indemnity or contribution, by the very nature of things, the third-party defendant is factually adverse to plaintiff. [FN24] For many purposes, such as the third-party defendant's right to participate in the dispute between the original parties, this attitude seems sound. But it would be inadvisable to extend it so as to encourage the automatic application of claim and issue preclusion rules.

Although courts sometimes have referred to plaintiff's claim against the third-party defendant as a "counterclaim," [FN25] this designation is technically inaccurate since plaintiff's claim in this setting is not responding to an earlier claim in the action. Under Rule 14, plaintiff may decide to refrain from asserting a claim against the third-party defendant. However, plaintiff may be forced to press his claim if the third-party defendant elects to advance a claim against plaintiff as provided for in the sixth sentence of Rule 14(a). [FN26] In this situation the original plaintiff is placed in a defensive position vis-a-vis the third-party defendant and, as is true of any other defendant, must act if he has a compulsory counterclaim. [FN27] On the other hand, if the original plaintiff's counterclaim in response to the third-party defendant's claim would constitute a permissive counterclaim, plaintiff retains the same freedom to assert or not to assert the claim against the third-party defendant as he would in a typical two party situation. Finally, when the original plaintiff has been put in a defensive position because the third-party defendant has interposed a claim against him, plaintiff also has the option of impleading any party who might be liable to him for all or part of the third-party defendant's claim. [FN28]

[FN1]. No action needed

Drickersen v. Drickersen, Alaska 1976, 546 P.2d 162, 168 n. 14, citing Wright & Miller.

[FN2]. Motions to strike or sever

See s 1460.

[FN3]. Plaintiff's claim allowed

Mattschei v. U.S., C.A.9th, 1979, 600 F.2d 205, 207, citing Wright & Miller.

When the crane owner and operator had been an active participant in the longshoreman's action against the vessel owner since 1969, the trial court's action in February 1976, granting the longshoreman's motion to amend his complaint and proceed directly against the crane owner could not have come as a surprise to the crane owner and did not prejudice the crane owner. Lopez v. Oldendorf, C.A.2d, 1976, 545 F.2d 836, certiorari denied 97 S.Ct. 2650, 431 U.S. 938, 53 L.Ed.2d 256.

When a bus company that had been sued by a passenger injured in a collision with a truck and trailer impleaded the owner and the operator of the truck and trailer, the passenger then was entitled to amend his complaint to charge negligence against all of the third-party defendants and it was immaterial that plaintiff had not made them defendants at the outset. Bates v. Miller, C.A.2d, 1943, 133 F.2d 645, certiorari denied 63 S.Ct. 1446, 320 U.S. 210, 87 L.Ed. 1848.

Hipp v. U.S., D.C.N.Y.1970, 313 F.Supp. 1152.

D'Alberto v. Greyhound Lines, Inc., D.C.N.Y.1968, 45 F.R.D. 33.

Crim v. Lumbermens Mut. Cas. Co., D.C.D.C.1939, 26 F.Supp. 715.

See also

Abramovitch v. U.S. Lines, D.C.N.Y.1959, 174 F.Supp. 587.

O'Donnell v. Blackmon Constr. & Realty, Inc., Ala.Civ.App.1978, 354 So.2d 26, 27, citing Wright & Miller.

[FN4]. Transaction or occurrence

U.S. v. Lushbough, C.A.8th, 1952, 200 F.2d 717.

Frankel v. Back, D.C.Pa.1965, 37 F.R.D. 545.

Plaintiff cannot in effect substitute, as against the third-party defendant, another cause of action for that originally commenced by him. Welder v. Washington Temperance Ass'n, D.C.Minn.1954, 16 F.R.D. 18.

See also

D'Alberto v. Greyhound Lines, Inc., D.C.N.Y.1968, 45 F.R.D. 33.

[FN5]. General purpose of rule

See s 1442.

[FN6]. Claim against plaintiff

See s 1458.

[FN7]. Standard for impleader

See s 1446.

[FN8]. Jurisdictional requirement

Owen Equip. & Erection Co. v. Kroger, 1978, 98 S.Ct. 2396, 437 U.S. 365, 57 L.Ed.2d 274.

Kenrose Mfg. Co. v. Fred Whitaker Co., C.A.4th, 1972, 512 F.2d 890, affirming D.C.Va.1971, 53 F.R.D. 491, 494, citing Wright & Miller.

See s 1444.

[FN9]. Statute of limitations

Monarch Indus. Corp. v. American Motorists Ins. Co., D.C.N.Y.1967, 276 F.Supp. 972, 981.

When a personal injury action was instituted on August 7, 1961 and defendant filed a third-party complaint on September 21, 1961 and the statute of limitations expired as to plaintiff's cause of action against anyone other than the original defendant on September 22, 1962, plaintiff's motion to amend on September 22, 1964 to set forth a claim directly against third-party defendant would be denied. Frankel v. Back, D.C.Pa.1965, 37 F.R.D. 545.

Hankinson v. Pennsylvania R.R. Co., D.C.Pa.1958, 160 F.Supp. 709.

"Thus the operation of Rule 14(a) of itself did not instill life into plaintiff's action against the third-party defendant, and neither, in our opinion, did the 'Amendment to Complaint.' That instrument, in effect, is an original complaint commenced too late by plaintiff against the third-party defendant." Carlise v. Monongahela Ry. Co., D.C.Pa.1954, 16 F.R.D. 426, 427.

Horan v. Pope & Talbot, Inc., D.C.Pa.1953, 119 F.Supp. 711.

Schott v. Colonial Baking Co., D.C.Ark.1953, 111 F.Supp. 13.

"[W]hen the plaintiff seeks to amend his complaint to charge the third-party defendant with liability after the period fixed by the statute of limitations has run, he is in effect seeking to state a new cause of action against such third-party defendant, which cause of action is barred by the statute of limitations." Lommer v. Scranton-Spring Brook Water Serv. Co., D.C.Pa.1943, 3 F.R.D. 27, 28.

[FN10]. Can amend immediately

Sklar v. Hayes, D.C.Pa.1941, 1 F.R.D. 594.

[FN11]. Timing

See s 1454.

[FN12]. Sklar case

D.C.Pa.1941, 1 F.R.D. 594.

[FN13]. No prejudice

1 F.R.D. at 596.

[FN14]. No obligation to assert

Answering Serv., Inc. v. Egan, C.A.D.C.1984, 728 F.2d 1500, 1503, citing Wright & Miller.

Knell v. Feltman, C.A.D.C.1949, 174 F.2d 662.

When plaintiffs brought actions against the United States on the basis of negligence, the fact that the United States was permitted to implead a third- party defendant would not, in itself, force plaintiffs to try their actions against the third-party defendant. Fong v. U.S., D.C.Cal.1957, 21 F.R.D. 385.

Cleary v. South Buffalo Ry. Co., D.C.N.Y.1954, 16 F.R.D. 24.

In Lommer v. Scranton-Spring Brook Water Serv. Co., D.C.Pa.1944, 4 F.R.D. 104, the court held that Rule 14(a) did not oblige plaintiff to assert a claim against the third-party defendant but that the purpose for including express permission to amend in the rule was that "under third-party practice in some of the states, plaintiff was not permitted to amend ***."

Atlantic Coast Line R. Co. v. U.S. Fidelity & Guar. Co., D.C.Ga.1943, 52 F.Supp. 177. "The third-party proceeding in such case may thus be regarded as authorizing a defendant to gratuitously tender to a plaintiff a person who may be liable directly to the plaintiff which tender the plaintiff may refuse or accept." Lommer v. Scranton-Spring Brook Water Serv. Co., D.C.Pa.1943, 3 F.R.D. 27, 28.

Herrington v. Jones, D.C.La.1941, 2 F.R.D. 108.

Satink v. Holland Township, D.C.N.J.1940, 31 F.Supp. 229.

See also

People of Illinois for Use of Trust Co. of Chicago v. Maryland Cas. Co., C.A.7th, 1942, 132 F.2d 850.

Proceedings, Washington Institute on the Federal Rules of Civil Procedure, 1938, p. 62.

"As the Rule now stands, it provides merely that the plaintiff 'may assert' a claim against the new party. The implication is that a formal amendment is no longer vital. However, the Rule is conspicuously silent as to how the plaintiff is to 'assert' the claim. Judicial expression on the problem has been scant." Feldman, A Puzzle Under the Federal Impleader Rule, 1959, 34 Tulane L.Rev. 77, 79.

[FN15]. Interrogatories

That issues rendering a longshoreman and a stevedore adverse parties in the longshoreman's suit to recover for injuries from a shipowner who impleaded the stevedore as a third-party defendant were raised by way of answer to the third- party complaint rather than by answer to the original complaint did not prevent the stevedore and the longshoreman from being "adverse." Carey v. Schuldt, D.C.La.1967, 42 F.R.D. 390.

If the third-party defendant answers plaintiff's complaint and asserts a defense that would bar plaintiff's recovery from defendant, it may serve interrogatories on plaintiff and plaintiff may serve interrogatories on it, but if the third-party defendant does not answer plaintiff's complaint, neither need respond to interrogatories served by the other. Felder v. Skibs A/S Idaho, D.C.Md.1964, 225 F.Supp. 571.

Pettus v. Grace Line, Inc., D.C.N.Y.1958, 166 F.Supp. 463.

Schonberger v. Blumenkranz of Lakewood, New Jersey, Inc., D.C.N.J.1958, 23 F.R.D. 16.

Harris v. Marine Transp. Lines, Inc., D.C.N.Y.1958, 22 F.R.D. 484.

But see

Piro v. Port Lines, Ltd., D.C.N.Y.1958, 22 F.R.D. 231.

Kestner v. Reading Co., D.C.Pa.1957, 21 F.R.D. 303.

When the third-party defendant, a shipping company in an action on a marine insurance policy, served no answer to plaintiff's complaint, plaintiff could not treat the company as an adverse party for the purpose of interrogatories, although the issue between plaintiff and defendant was very similar to that raised by the third-party defendant's answer to the third-party complaint. A defined issue and not merely adverse interest is the criterion for determining the propriety of interrogatories. M.V.M., Inc. v. St. Paul Fire & Marine Ins. Co., D.C.N.Y.1957, 20 F.R.D. 296.

[FN16]. Parties under Rule 33

See vol. 8, s 2171.

[FN17]. Issue preclusion limits

1 Freeman, Judgments, 5th ed. 1925, s 422.

See also

Drickersen v. Drickersen, Alaska 1976, 546 P.2d 162, 169 n. 15, quoting Wright & Miller.

See generally vol. 18, s 4450.

[FN18]. Application of state law

See 2 Weinstein, Korn & Miller, New York Civil Practice ¶1008.03.

[FN19]. Pre-1948 practice

See ss 1441, 1446.

[FN20]. Amendment required

Harlan Produce Co. v. Delaware, L. & W.R. Co., D.C.N.Y.1948, 8 F.R.D. 104 (interrogatories not allowed).

"[I]n the case of alleged liability over to the defendant only, no issue is presented between plaintiff and third party; and, if the plaintiff desires to make such an issue, he probably must amend." Lommer v. Scranton-Spring Brook Water Serv. Co., D.C.Pa.1944, 4 F.R.D. 104.

Thompson v. Cranston, D.C.N.Y.1942, 2 F.R.D. 270, affirmed on other grounds sub nom. Brown v. Cranston, C.A.2d, 1942, 132 F.2d 631, certiorari denied 63 S.Ct. 1028, 319 U.S. 741, 87 L.Ed. 1698. Sklar v. Hayes, D.C.Pa.1941, 1 F.R.D. 594.

Satink v. Holland Township, D.C.N.J.1940, 31 F.Supp. 229.

Crim v. Lumbermens Mut. Cas. Co., D.C.D.C.1939, 26 F.Supp. 715 (dictum).

See also

Holtzoff, New Federal Procedure and the Courts, 1940, p. 48.

[FN21]. Adversity without amendment

Lommer v. Scranton-Spring Brook Water Serv. Co., D.C.Pa.1944, 4 F.R.D. 104.

The court in Atlantic Coast Line R. Co. v. U.S. Fidelity & Guar. Co., D.C.Ga.1943, 52 F.Supp. 177, 185, viewed Rule 14 as covering two situations: the addition of defendants to the main cause of action and the impleading of a party solely to indemnify defendant. After advancing this classification the court went on to say: "In the case of alleged direct liability, no amendment is necessary or required. The subject-matter of the claim is contained in plaintiff's complaint, the ground of third party's liability on that claim is alleged in the third party complaint, and third party's defense to his alleged liability on the claim is set up in his answer to plaintiff's complaint. At that point and without amendment, the plaintiff and third party are at issue as to their rights respecting the claim."

[FN22]. Admiralty suits

See s 1465.

[FN23]. Amendment not required

Wasik v. Borg, C.A.2d, 1970, 423 F.2d 44.

F & D Property Co. v. Alkire, C.A.10th, 1967, 385 F.2d 97.

Hagans v. Ellerman & Bucknall S.S. Co., C.A.3d, 1963, 318 F.2d 563.

In Falls Indus., Inc. v. Consolidated Chem. Indus., Inc., C.A.5th, 1958, 258 F.2d 277, 287, the court held that when the third-party defendant not only answered the third-party complaint but also responded to the original complaint in a separate pleading, asserting all the defenses it could have had if plaintiff had amended its complaint, its answer was, in effect, a waiver of the necessity of amendment. "There is some merit to the argument that the Amendment to Rule 14(a) is designed to prohibit *** a tender by the defendant of another defendant to the plaintiff ***. We believe however, whatever doubts there might be, that justice will be served if we follow the decision of the parties to treat the complaint as having been enlarged: (1) by the third-party defendant's answer that is in the nature of a waiver of formal amendment and (2) by the proof at the trial, where there was no objection made to evidence that would have bearing only on the issue of [third party defendant's liability to plaintiff] ***."

Patton v. Baltimore & Ohio R. Co., C.A.3d, 1952, 197 F.2d 732 (Rule 15(b) applied) (dictum).

In Knell v. Feltman, C.A.D.C.1949, 174 F.2d 662, the court held that the third-party defendant was liable for the judgment rendered against defendant even though neither he nor plaintiff asserted claims directly against one another. It stated: "Plainly, then, when he had been brought in as a third- party defendant, he was in the thick of the fray, and entitled to participate to the fullest extent *** [third-party defendant] was bound, nevertheless, by the adjudication of Feltman's [defendant's] liability to the Langlands [plaintiffs], as under the Rule he had the right to assert against the Langlands any defenses which Feltman had."

Frankel v. Back, D.C.Pa.1965, 37 F.R.D. 545 (no adversity shown).

Wiggins v. City of Philadelphia, D.C.Pa.1963, 216 F.Supp. 241, affirmed C.A.3d, 1964, 331 F.2d 521.

Armstrong v. U.S., D.C.Pa.1959, 171 F.Supp. 835, 840 n. 4, vacated on other grounds C.A.3d, 1960, 283 F.2d 122.

See also

Feldman, A Puzzle Under the Federal Impleader Rule, 1959, 34 Tulane L.Rev. 77.

But see

U.S. v. Lushbough, C.A.8th, 1952, 200 F.2d 717 (Federal Tort Claims Act).

Davies v. Dotson, D.C.Pa.1961, 198 F.Supp. 612.

[FN24]. Illustrative case

Wiggins v. City of Phildelphia, D.C.Pa.1963, 216 F.Supp. 241, affirmed C.A.3d, 1964, 331 F.2d 521.

Right to examine witnesses

DiBello v. Rederi A/B Svenska Lloyd, C.A.2d, 1967, 371 F.2d 559.

Hagans v. Ellerman & Bucknall S.S. Co., C.A.3d, 1963, 318 F.2d 563.

[FN25]. Designated as "counterclaim" Leather's Best, Inc. v. S.S. Mormaclynx, C.A.2d, 1971, 451 F.2d 800.

[FN26]. Plaintiff's counterclaim

See s 1456.

[FN27]. Compulsory counterclaim

See the discussion of compulsory counterclaims in ss 1409-1419.

[FN28]. Impleader by plaintiff allowed

See s 1446.