Notes of Advisory Committee on Rules—1937

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, r.r. 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; N.Y.C.P.A. (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 S.W. 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 L.J. 393, 417, et seq.

Third-party impleader under the 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 F.(2d) 895 (S.D.N.Y., 1928); Yellow Cab Co. of Philadelphia v. Rodgers, 61 F.(2d) 729 (C.C.A.3d, 1932).

Notes of Advisory Committee on Rules—1946 Amendment

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.N.J. 1940) 31 F.Supp. 229, noted (1940) 88 U.Pa.L.Rev. 751; Connelly v. Bender (E.D.Mich. 1941) 36 F.Supp. 368; Whitmire v. Partin v. Milton (E.D.Tenn. 1941) 5 Fed.Rules Serv. 14a.513, Case 2; Crim v. Lumbermen's Mutual Casualty Co. (D.D.C. 1939) 26 F.Supp. 715; Carbola Chemical Co., Inc. v. Trundle (S.D.N.Y. 1943) 7 Fed.Rules Serv. 14a.224, Case 1; Roadway Express, Inc. v. Automobile Ins. Co. of Hartford, Conn. v. Providence Washington Ins. Co. (N.D.Ohio 1945) 8 Fed.Rules Serv. 14a.513, Case 3. In Delano v. Ives (E.D.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. (M.D.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 America v. Lorrac Real Estate Corp. (E.D.N.Y. 1941) 39 F.Supp. 305; Johnson v. G. J. Sherrard Co. v. New England Telephone & Telegraph Co. (D.Mass. 1941) 5 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 164; Thompson v. Cranston (W.D.N.Y. 1942) 6 Fed.Rules Serv. 14a.511, Case 1, 2 F.R.D. 270, aff'd (C.C.A.2d, 1942) 132 F.(2d) 631, cert. den. (1943) 319 U.S. 741; Friend v. Middle Atlantic Transportation Co. (C.C.A.2d, 1946) 153 F.(2d) 778, cert. den. (1946) 66 S.Ct. 1370; Herrington v. Jones (E.D.La. 1941) 5 Fed.Rules Serv. 14a.511, Case 2, 2 F.R.D. 108; Banks v. Employers' Liability Assurance Corp. v. Central Surety & Ins. Corp. (W.D.Mo. 1943) 7 Fed.Rules Serv. 14a.11, Case 2; Saunders v. Baltimore & Ohio R. Co. (S.D.W.Va. 1945) 9 Fed.Rules Serv. 14a.62, Case 2; Hull v. United States Rubber Co. v. Johnson Larsen & Co. (E.D.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. (C.C.A.7th, 1942) 132 F.(2d) 850, 853. Contra: Sklar v. Hayes v. Singer (E.D.Pa. 1941) 4 Fed.Rules Serv. 14a.511, Case 2, 1 F.R.D. 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. (M.D.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, counterclaims 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 Rules—1963 Amendment

Under the amendment of the initial sentences of the subdivision, a defendant as a third-party plaintiff may freely and without leave of court bring in a third-party defendant if he files the 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. N.Y.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 Rules—1966 Amendment

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 ship- owner, 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.

Notes of Advisory Committee on Rules—1987 Amendment

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).

Committee Notes on Rules—2006 Amendment

Rule 14 is amended to conform to changes in designating the paragraphs of Supplemental Rule C(6).

Committee Notes on Rules—2007 Amendment

The language of Rule 14 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

Former Rule 14 twice refers to counterclaims under Rule 13. In each case, the operation of Rule 13(a) depends on the state of the action at the time the pleading is filed. If plaintiff and third-party defendant have become opposing parties because one has made a claim for relief against the other, Rule 13(a) requires assertion of any counterclaim that grows out of the transaction or occurrence that is the subject matter of that claim. Rules 14(a)(2)(B) and (a)(3) reflect the distinction between compulsory and permissive counterclaims.

A plaintiff should be on equal footing with the defendant in making third-party claims, whether the claim against the plaintiff is asserted as a counterclaim or as another form of claim. The limit imposed by the former reference to "counterclaim" is deleted.

Committee Notes on Rules—2009 Amendment

The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6.