NOTES TO RULE 14
HISTORY: (Amended Mar. 19, 1948; July 1, 1963; July 1, 1966; Aug. 1, 1987)
Notes of Advisory Committee on Rules.
Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the Federal admiralty courts, and in some American State jurisdictions. See English Rules Under the Judicature Act (The Annual Practice, 1937) O 16A, rr 1--13; United States Supreme Court Admiralty Rules (1920), Rule 56 (Right to Bring in Party Jointly Liable); Pa Stat Ann (Purdon, 1936) Title 12, § 141; Wis Stat (1935) §§ 260.19, 260.20; NYCPA (1937) §§ 193(2), 211(a). Compare La Code Pract (Dart, 1932) §§ 378--388. For the practice in Texas as developed by judicial decision, see Lottman v Cuilla, 288 SW 123, 126 (Tex, 1926). For a treatment of this subject see Gregory, Legislative Loss Distribution in Negligence Actions (1936); Shulman and Jaegerman, Some Jurisdictional Limitations on Federal Procedure (1936), 45 Yale LJ 393, 417, et seq.
Third-party impleader under the former conformity act has been applied in actions at law in the Federal courts. Lowry and Co., Inc. v National City Bank of New York, 28 F2d 895 (SD NY, 1928); Yellow Cab Co. of Philadelphia v Rodgers, 61 F2d 729 (CCA 3d, 1932).
Notes of Advisory Committee on 1946 amendments to Rules.
The provisions in Rule 14 (a) which relate to the impleading of a third party who is or may be liable to the plaintiff have been deleted by the proposed amendment. It has been held that under Rule 14(a) the plaintiff need not amend his complaint to state a claim against such third party if he does not wish to do so. Satink v Holland Township, D NJ 1940, 31 F Supp 229, noted, 1940, 88 U Pa L Rev 751; Connelly v Bender, ED Mich 1941, 46 F Supp 368; Whitmire v Partin (Milton), ED Tenn 1941, 2 FRD 83, 5 Fed Rules Serv 14a.513, Case 2; Crim v Lumbermen's Mutual Casualty Co. D DC 1939, 26 F Supp 715; Carbola Chemical Co., Inc. v Trundle, SD NY 1943, 3 FRD 502, 7 Fed Rules Serv 14a.224, Case 1; Roadway Express, Inc. v Automobile Ins. Co. of Hartford, Conn (Providence Washington Ins. Co.), ND Ohio 1945, 8 Fed Rules Serv 14a.513, Case 3. In Delano v Ives, ED Pa 1941, 40 F Supp 672, the court said: ". . . the weight of authority is to the effect that a defendant cannot compel the plaintiff, who has sued him, to sue also a third party whom he does not wish to sue, by tendering in a third party complaint the third party as an additional defendant directly liable to the plaintiff." Thus impleader here amounts to no more than a mere offer of a party to the plaintiff, and if he rejects it, the attempt is a time-consuming futility. See Satink v Holland Township, supra; Malkin v Arundel Corp. D Md 1941, 36 F Supp 948; also Koenigsberger, Suggestions for Changes in the Federal Rules of Civil Procedure, 1941, 4 Fed Rules Serv 1010. But cf. Atlantic Coast Line R. Co. v United States Fidelity & Guaranty Co. MD Ga 1943, 52 F Supp 177. Moreover, in any case where the plaintiff could not have joined the third party originally because of jurisdictional limitations such as lack of diversity of citizenship, the majority view is that any attempt by the plaintiff to amend his complaint and assert a claim against the impleaded third party would be unavailing. Hoskie v Prudential Ins. Co. of Ame Corp.), WD Mo 1943, 7 Fed Rules Serv 14a.11, Case 2; Saunders v Baltimore & Ohio R. Co. SD W Va 1945, 9 Fed Rules Serv 14a.62, Case 2; Hull v United States Rubber Co. (Johnson, Larsen & Co.), ED Mich 1945, 9 Fed Rules Serv 14a.62, Case 3. See also concurring opinion of Circuit Judge Minton in People of State of Illinois for use of Trust Co. of Chicago v Maryland Casualty Co. CCA 7th, 1942, 132 F2d 850, 853. Contra: Sklar v Hayes (Singer), ED Pa 1941, 4 Fed Rules Serv 14a.511, Case 2, 1 FRD 594. Discussion of the problem will be found in Commentary, Amendment of Plaintiff's Pleading to Assert Claim Against Third-Party Defendant, 1942, 5 Fed Rules Serv 811; Commentary, Federal Jurisdiction in Third-Party Practice, 1943, 6 Fed Rules Serv 766; Holtzoff, Some Problems Under Federal Third-Party Practice, 1941, 3 La L Rev 408, 419--420; 1 Moore's Federal Practice, 1938, Cum Supplement § 14.08. For these reasons therefore, the words "or to the plaintiff" in the first sentence of subdivision (a) have been removed by the amendment; and in conformance therewith the words "the plaintiff" in the second sentence of the subdivision, and the words "or to the third-party plaintiff" in the concluding sentence thereof have likewise been eliminated.
The third sentence of Rule 14(a) has been expanded to clarify the right of the third-party defendant to assert any defenses which the third-party plaintiff may have to the plaintiff's claim. This protects the impleaded third-party defendant where the third-party plaintiff fails or neglects to assert a proper defense to the plaintiff's action. A new sentence has also been inserted giving the third-party defendant the right to assert directly against the original 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. This permits all claims arising out of the same transaction or occurrence to be heard and determined in the same action. See Atlantic Coast Line R. Co. v United States Fidelity & Guaranty Co. MD Ga, 1943, 52 F Supp 177. Accordingly, the next to the last sentence of subdivision (a) has also been revised to make clear that 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 against him arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. In such a case, the third-party defendant then is entitled to assert the defenses, counter-claims and cross-claims provided in Rules 12 and 13.
The sentence reading "The third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff, or to the third-party plaintiff" has been stricken from Rule 14(a), 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. It is not the purpose of the rules to state the effect of a judgment.
The elimination of the words "the third-party plaintiff, or any other party" from the second sentence of Rule 14(a), together with the insertion of the new phrases therein, are not changes of substance but are merely for the purpose of clarification.
Notes of Advisory Committee on 1963 amendments to Rules.
Under the amendment of the initial sentences of the subdivision, a defendant as third-party plaintiff may freely and without leave of court bring in a third-party complaint not later than 10 days after he serves his original answer. When the impleader comes so early in the case, there is little value in requiring a preliminary ruling by the court on the propriety of the impleader.
After the third-party defendant is brought in, the court has discretion to strike the third-party claim if it is obviously unmeritorious and can only delay or prejudice the disposition of the plaintiff's claim, or to sever the third-party claim or accord it separate trial if confusion or prejudice would otherwise result. This discretion, applicable not merely to the cases covered by the amendment where the third-party defendant is brought in without leave, but to all impleaders under the rule, is emphasized in the next-to-last sentence of the subdivision, added by amendment.
In dispensing with leave of court for an impleader filed not later than 10 days after serving the answer, but retaining the leave requirement for impleaders sought to be effected thereafter, the amended subdivision takes a moderate position on the lines urged by some commentators, see Note, 43 Minn L Rev 115 (1958); cf. Pa R Civ P 2252--53 (60 days after service on the defendant); Minn R Civ P 14.01 (45 days). Other commentators would dispense with the requirement of leave regardless of the time when impleader is effected, and would rely on subsequent action by the court to dismiss the impleader if it would unduly delay or complicate the litigation or would be otherwise objectionable. See 1A Barron & Holtzoff, Federal Practice & Procedure 649--50 (Wright Ed 1960); Comment, 58 Colum L Rev 532, 546 (1958); cf. NY Civ Prac Act § 193-a; Me R Civ P 14. The amended subdivision preserves the value of a preliminary screening, through the leave procedure, of impleaders attempted after the 10-day period.
The amendment applies also when an impleader is initiated by a third-party defendant against a person who may be liable to him, as provided in the last sentence of the subdivision.
Notes of Advisory Committee on 1966 Amendments to Rules.
Rule 14 was modeled on Admiralty Rule 56. An important feature of Admiralty Rule 56 was that it allowed impleader not only of a person who might be liable to the defendant by way of remedy over, but also of any person who might be liable to the plaintiff. The importance of this provision was that the defendant was entitled to insist that the plaintiff proceed to judgment against the third-party defendant. In certain cases this was a valuable implementation of a substantive right. For example, in a case of ship collision where a finding of mutual fault is possible, one shipowner, if sued alone, faces the prospect of an absolute judgment for the full amount of the damage suffered by an innocent third party; but if he can implead the owner of the other vessel, and if mutual fault is found, the judgment against the original defendant will be in the first instance only for a moiety of the damages; liability for the remainder will be conditioned on the plaintiff's inability to collect from the third-party defendant.
This feature was originally incorporated in Rule 14, but was eliminated by the amendment of 1946, so that under the amended rule a third party could not be impleaded on the basis that he might be liable to the plaintiff. One of the reasons for the amendment was that the Civil Rule, unlike the Admiralty Rule, did not require the plaintiff to go to judgment against the third-party defendant. Another reason was that where jurisdiction depended on diversity of citizenship the impleader of an adversary having the same citizenship as the plaintiff was not considered possible.
Retention of the admiralty practice in those cases that will be counterparts of a suit in admiralty is clearly desirable.
Preliminary draft of proposed amendment. A preliminary draft, dated September, 1989, proposed amendments to Rule 14 as follows:
(a) When Defendant may Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff. A copy of all previous pleadings in the action shall accompany the third party complaint or be provided promptly after service. The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make any defenses to the third-party plaintiff's claim as provided in Rule 12 and any counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also 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. 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, and the third-party defendant thereupon shall assert any defenses as provided in Rule 12 and any counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person not a party to the action who is or may be liable to the third-party defendant for all or part of the claim made in the action against the third-party defendant. The third-party complaint, if within the admiralty and maritime jurisdiction, may be in rem against a vessel, cargo, or other property subject to admiralty or maritime process in rem, in which case references in this rule to the summons include the warrant of arrest, and references to the third-party plaintiff or defendant include, where appropriate, the claimant of the property arrested.
(b), (c) [Unchanged]
Notes of Advisory Committee on 1989 proposed amendments to Rule.
The revision assures the third party defendant of a copy of all pleadings previous to the third party complaint without necessity for a request of the clerk's office. Some local rules and some state rules have required that all previous pleadings be attached to the third party complaint at the time of service. Failure to attach every such instrument should not, however, be a condition of effective timely service of the third party complaint. The revised rule therefore allows separate transmission of the additional documents.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Committee Notes on Rules - 2000 Amendment
Subdivisions (a) and (c) are amended to reflect revisions in Supplemental Rule C(6).
GAP Report.
Rule B(1)(a) was modified by moving "in an in personam action" out of paragraph (a) and into the first line of subdivision (1). This change makes it clear that all paragraphs of subdivision (1) apply when attachment is sought in an in personam action. Rule B(1)(d) was modified by changing the requirement that the clerk deliver the summons and process to the person or organization authorized to serve it. The new form requires only that the summons and process be delivered, not that the clerk effect the delivery. This change conforms to present practice in some districts and will facilitate rapid service. It matches the spirit of Civil Rule 4(b), which directs the clerk to issue the summons "to the plaintiff for service on the defendant." A parallel change is made in Rule C(3)(b).