The Coparty Requirement

Rule 13(g) lets a pleading state a crossclaim only “against a coparty,” so the target’s status has to be settled before the transactional connection to the main case matters.¹ Neither Rule 13 nor Rule 14 defines the word, so its content must be assembled from the way the joinder rules divide the possible targets of a claim.²

That division works by exclusion. A pleader’s target is either a party who already opposes the pleader on a pleaded claim, a party who does not, or a stranger to the action. The Rules give each target its own device: counterclaims lie against opposing parties under Rule 13(a), third-party claims against nonparties under Rule 14(a), and crossclaims against coparties under Rule 13(g).³ The coparty is whoever is left, a party who is not an opposing party.⁴ Opposing parties, in turn, are those who formally oppose each other on a pleaded claim.⁵

Two questions therefore decide the matter, and they run in sequence. First, is the target already a party to the action? Second, if so, does the target already oppose the pleader on a pleaded claim? A target that is a party and does not oppose the pleader is a coparty.

The sorting matters because each category carries its own machinery. A claim against an opposing party falls under the counterclaim rules. A claim against a nonparty requires a summons served on a newcomer.⁶ A crossclaim is always permissive⁷ and must be tied to the original action or to a counterclaim.⁸ A claim aimed at the wrong category is tested under the wrong rules. The sections below apply the two questions to the relationships that most often blur the line, starting with the paradigm case of codefendants.

Codefendants

Codefendants sued by the same plaintiff in the same action are the paradigm coparties, and the coparty requirement is typically satisfied when a claim is asserted between original defendants.⁹ Both questions come out the same way for them. Each was named in the plaintiff’s complaint and is already a party, so neither is a nonparty to the other. Neither has pleaded a claim against the other, so neither opposes the other in the formal sense that matters. Only the coparty relationship remains, which is why a claim from one original defendant to another is the model crossclaim.

A natural objection is that codefendants are rarely allies, since each would rather the other bear the loss. If that adversity made them opposing parties, no crossclaim could ever run between them. Courts reason that the crossclaim device itself presupposes some adversity between coparties, so adverse interests alone cannot convert coparties into opposing parties,¹⁰ and opposition in the relevant sense is formal, meaning that the two stand against each other on a pleaded claim.¹¹ Drawing the line there lets each situation use the device built for it. Parties already opposed on a pleaded claim have the counterclaim rules, with their compulsory and permissive categories. Parties not yet opposed have the crossclaim, which allows, but does not compel, them to introduce an adverse claim and so avoids a second suit.¹²

An exam stem with three parties in one accident will ask which rule each claim belongs to, and the answer depends on whom the claim targets, not on who blames whom.

At trial Deborah and Dell may each insist that the other caused the collision, yet that rivalry leaves them coparties, because neither has pleaded a claim against the other. Their status changes only when a claim is pleaded. Once Deborah pleads her crossclaim, she becomes an opposing party to Dell on that claim.¹⁴ As to that claim, Dell now stands where any party stands when an opposing party pleads against him, so the counterclaim provisions govern what he must or may plead back.¹⁵ Whether a defendant and a third-party defendant, who are on the same side but entered the case at different levels, count as coparties is a separate question on which courts have divided.

Coplaintiffs

The same definition reaches coplaintiffs. Rule 13(g) authorizes “any claim by one party against a coparty,” and two plaintiffs who sue together are parties who have pleaded nothing against each other.¹⁷ Read literally, one may therefore crossclaim against the other. Courts have nevertheless generally prohibited crossclaims between coplaintiffs unless a defendant has interposed a counterclaim against them.¹⁸ The rule does not say so in terms. The limit comes from decisions holding that only parties against whom a claim has been made can crossclaim against each other.¹⁹ The gap between what the words permit and what courts allow turns on what a crossclaim is supposed to be attached to.

The leading illustration is Danner v. Anskis, a diversity suit in which two families, the Danners and the Weintraubs, all citizens of Pennsylvania, sued a New Jersey driver after a collision with the car Mrs. Danner was driving, in which both families were riding. The defendant was defaulted for failing to appear, plead, or otherwise defend, so no claim was ever asserted against the plaintiffs. The Weintraubs then filed a crossclaim against Mr. and Mrs. Danner for the same injuries, alleging that Mrs. Danner had driven negligently. The district court dismissed it as not a proper crossclaim under Rule 13(g), and the Third Circuit affirmed.²⁰

The court reasoned from the nature of a crossclaim. Rule 13(g) lets a defendant crossclaim against a codefendant, and it lets a plaintiff against whom a defendant has counterclaimed crossclaim against a coplaintiff about the subject matter of that counterclaim. In each case the crossclaim is ancillary to a claim already asserted against the party stating it, meaning it depends on, and is carried along by, a claim already before the court. The Weintraubs’ claim sought recovery for the accident that underlies the plaintiffs’ common complaint, but it had no such anchor. The two claims were wholly independent of each other, and neither was ancillary to the other.²¹

The limit also has a jurisdictional reason. Unless Rule 13(g) is read this way, it could extend a district court’s jurisdiction to controversies outside the federal judicial power, a result Rule 82 forbids.²² In Danner itself, the crossclaim could not have stood as an independent suit, because its parties were all Pennsylvania citizens. The mechanics of that point are taken up in the section on jurisdiction over crossclaims.

A counterclaim supplies the missing anchor. It puts the plaintiffs in a defensive posture and gives them a pending claim to which their dispute over its subject matter relates.

The counterclaim is the variable that matters. Whitfield and Reyes are each parties against whom a claim has been made, because Hollis’s counterclaim is pending against both. The Weintraubs and the Danners were not in that position, because the defendant had asserted nothing against either family.²³ An exam answer that observes only that both plaintiffs sit on the same side of the caption has answered the coparty question and skipped the requirement that the case law adds, a claim already pending against the would-be crossclaimant. Because that limit comes from case law and not from the text, the answer should state it as such.

Third-Party Defendants

A third-party defendant poses a harder question. Rule 13(g) authorizes a crossclaim only by one party “against a coparty,”²⁵ and the Rules never say whether an original defendant and a third-party defendant are coparties of each other. Both sit on the defending side, yet they entered the case by different doors. The plaintiff sued the original defendant, while a defendant’s Rule 14 complaint brought in the third-party defendant, and courts describe that difference as one of level.

Luyster v. Textron, Inc. presented the problem. Superior, an original defendant, pleaded a claim against the United States, which had been impleaded as a third-party defendant.²⁶ The Government asked the court to find that the two were not coparties, to conclude that Superior’s filing was not a proper crossclaim, and to dismiss it.²⁷ The court found that neither party had identified binding authority adopting either construction, and its own research revealed none, so it weighed the arguments for each view on the merits.²⁸ The opinion labels the two constructions the Narrow Definition and the Broad Definition.

The Narrow Definition limits a coparty to a party of “like status,” meaning the same side at the same level, so a crossclaim may run between original defendants or between third-party defendants but never between an original defendant and a third-party defendant.²⁹
The Broad Definition treats as a coparty any party who is not an opposing party, which admits a crossclaim between an original defendant and a third-party defendant.³⁰

Courts applying the narrow construction have disallowed an original defendant’s crossclaim against a fourth-party defendant, in International Paving Systems v. Vanr-Tulco, Inc., and have dismissed defendants’ crossclaims against a third-party defendant, in Murray v. Haverford Hospital Corp.³¹ Courts applying the broad construction have allowed an original defendant’s crossclaim against a third-party defendant, as in Earle M. Jorgenson Co. v. T.I. U.S., Ltd.³²

Superior’s claim against the Government shows how much turns on the definition. Under the Broad Definition, the Government is a party that Superior does not oppose on any pleaded claim, so it is a coparty and the claim is a proper crossclaim. Under the Narrow Definition, the identical pleading fails, because the two parties sit at different levels.³³ The crash, the negligence allegations, and the contingent character of the claim are the same under both constructions. Only the court’s definition of coparty changes the result. The split remains open, and Luyster is a district court decision, so its choice of the Broad Definition persuades other courts without binding them.

The strongest textual argument for the narrow view starts with Rule 14(a), which says that a third-party defendant may assert a crossclaim against another third-party defendant under Rule 13(g).³⁴ One could read that grant as the only crossclaim a third-party defendant has. Luyster answered that the reference does not say these are the only crossclaims a third-party defendant may bring, that Rule 14 neither uses nor defines the term coparty, and that it does not limit or define the scope of Rule 13(g).³⁵ Defenders of the narrow view also warn of confusion, because some defendants would implead with leave of court while others would simply file crossclaims, which need neither a summons nor leave.³⁶ That concern has force when a crossclaim is used to bring in someone who is not yet a party. The Government was already a party, and the court saw no reason to treat it as though it were not or to require Superior to meet procedural requirements that would apply if it were not.³⁷

The broad view starts from the structure of the joinder rules. Defending parties have three kinds of claims available: counterclaims against opposing parties under Rule 13(a), third-party claims against nonparties under Rule 14(a), and crossclaims against coparties under Rule 13(g). The relationship between an original defendant and a third-party defendant must fall into one of the three, and as the Georgia Ports Authority court put it, calling the two coparties appears to be the logical choice.³⁸ That reading also fits the function of the crossclaim, which allows but does not compel parties who are not adverse on a pleaded claim to introduce an adverse claim and so avoid multiple suits.³⁹ Because opposition turns on a pleaded claim and not on hostility, mutual blame between an original defendant and a third-party defendant does not make them opposing parties, although a crossclaimant becomes an opposing party once the crossclaim is pleaded.⁴⁰ A third-party defendant and the defendant who impleaded it are already opposing parties on the third-party claim, which is why Rule 14(a)(2)(B) sends their claims against each other through the counterclaim provisions.⁴¹ The live dispute concerns original defendants other than the one who impleaded.

The narrow view also leaves such a claim without a procedural home. A claim by an original defendant against a third-party defendant is not a counterclaim, because the two are not opposing parties. It is not impleader, because impleader reaches only nonparties. If coparties must share a level, it is not a crossclaim either.⁴² Courts that hold to the narrow view fill the gap with extra steps. The claimant may be left to a separate action, or the court may sever the claims under Rule 21 so that the target becomes a nonparty, let the claimant implead it under Rule 14(a), and then reconsolidate the actions.⁴³ The Georgia Ports Authority court identified a further consequence: codefendants would race to be the first to implead a particular third-party defendant, because every other defendant would then have to file an independent action. It rejected the idea that the Rules intended that result.⁴⁴

Under the narrow view, the order of filing decides where the contribution claim is heard, and that order has no bearing on which defendant ought to bear the loss. The Fifth Circuit reached a similar conclusion in the reverse posture, where a third-party defendant crossclaimed against an original defendant. It rejected the Narrow Definition, calling the narrow reading strained and its result nonsensical.⁴⁵ Impleader and the crossclaim serve the same economy: each lets a defending party bring in a claim against one who “is or may be liable” to it, instead of proving the same liability again in a second action.⁴⁶ Luyster concluded that the Broad Definition appears to be the best construction to further the purposes of the Rules,⁴⁷ and it held that Superior and the Government were coparties and that Superior’s claim was a proper crossclaim.⁴⁸

Because no controlling rule settles the split, an essay answer should state both definitions, apply each to the pleaded relationship, and say which result the governing court’s decisions require. Where the facts do not identify the jurisdiction’s view, the answer should argue the Broad Definition from the gap the narrow view creates and from the race to implead.

Opposing Parties and Nonparties

Rule 13(g) authorizes a claim “by one party against a coparty,” so the target must already be a party and must not be one the pleader opposes.⁵⁰ A target can miss that description in two directions. It may already oppose the pleader on a pleaded claim, or it may not be in the lawsuit at all, and the Rules send each kind of claim through a different device. This section marks both outer edges of the coparty category and then adds a timing point: the target must still be a party when the claim is asserted.

The first edge is the opposing party. A crossclaim runs against a coparty and a counterclaim against an opposing party, and that is the difference between them.⁵¹ A claim aimed at someone who has pleaded against the pleader therefore runs through Rule 13(a) and (b), with their compulsory and permissive categories, however closely the claim relates to the main case. Courts classify a claim by its substance and generally ignore the label the pleader chose,⁵² but the classification still determines which rules govern.

The second edge is the nonparty, and a claim against a nonparty cannot be a crossclaim because no coparty exists to receive it. A defending party who wants to bring in a stranger who is or may be liable for all or part of the plaintiff’s claim serves a summons and third-party complaint under Rule 14(a), and the person served must be a nonparty.⁵³ If the third-party complaint is filed more than fourteen days after the original answer was served, the third-party plaintiff must first obtain the court’s leave, and any party may move to strike the third-party claim, to sever it, or to try it separately.⁵⁴ A crossclaim needs none of these steps. It requires no summons and complaint and no leave of court, because its target is already in the case.⁵⁵

In Knell v. Feltman, the device worked on the right kind of target. The Langlands sued Feltman, and Feltman, as a third-party plaintiff, served a summons and complaint on Knell, who had not been a party, because Knell was a person who was or might be liable to Feltman for part of the Langlands’ claim.⁵⁶ Knell objected that the Langlands had neither sought nor obtained a judgment against him, so no common liability to them had been established. The court rejected that objection because the third-party rule does not require the plaintiff to have sued the person impleaded, and the jury’s finding that the concurrent negligence of Feltman and Knell caused the injuries made them, as between themselves, jointly responsible for the damages awarded against Feltman.⁵⁷ Once served, Knell was entitled to participate as fully as an original defendant, and if he failed to exercise that privilege, he did so at his peril, because a third-party defendant is bound by the adjudication of the third-party plaintiff’s liability to the plaintiff.⁵⁸

Which device applies when the person liable over is already in the case? Impleader is for nonparties, so a defending party who wants reimbursement from someone the plaintiff also sued proceeds by crossclaim under the second sentence of Rule 13(g).⁵⁹ The underlying right to indemnity or contribution is the same either way. What differs is whether the person is already before the court.

The comparison with Knell isolates the fact that moves the answer. Feltman’s claim against Knell and the company’s claim against the driver are the same kind of claim, yet the first required a summons because the plaintiffs had not named Knell, and the second requires none because the plaintiff named the driver. An exam answer should therefore settle the target’s status from the caption before it chooses a rule.

Impleader is not the only door through which a nonparty may be reached. Rule 13(h) provides that Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim, which gives a pleader with a proper counterclaim or crossclaim a way to bring in a person who is not yet in the case.⁶¹ Later sections take up those mechanics. The line to hold for now separates claims against persons already in the action, which fall under the counterclaim and crossclaim provisions, from claims against persons outside it, which require either impleader under Rule 14(a) or joinder under Rule 13(h).

The target must also still be a party when the claim is asserted. In Ambraco, Inc. v. Bossclip B.V., a shipping dispute, the district court held that Pacorini’s claims against the Vessel Interests could have been properly brought under Rule 13(g). The Fifth Circuit held that this was error. Rule 13(g), by its terms, requires the claimant to be a party to the lawsuit when the claim is asserted, and by the time Pacorini asserted its claims the Vessel Interests had already been dismissed and were no longer parties to the underlying suit, so a crossclaim was no longer an available mechanism. Pacorini had properly proceeded under Rule 14(c).⁶²

The result follows from what a crossclaim is. Its premise is that both ends of the claim are already before the court, which is why it needs no summons and no leave. When the target has left the case, that premise is gone, and the pleader needs a route that does not depend on the target’s current party status. A fact pattern that reports a defendant’s dismissal before the claim is pleaded should therefore raise the question whether the target is still a party, ahead of any inquiry into transactional relatedness.