What Impleader Does

Third-Party Impleader

What Impleader Does

Suppose a plaintiff sues an employer, claiming the employer must answer for its employee's negligence. Assume the governing substantive law makes the employee liable over to the employer, so that a judgment against the employer would give it a right to reimbursement from the employee. Rule 14(a)(1) lets the employer assert that right now, inside the plaintiff's suit. A defending party “may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it.”¹ The procedure is impleader, and the employer who uses it impleads the employee.²

The plaintiff structures the suit first, choosing whom to sue within limits the law sets.³ Impleader gives the defending party a say of its own, because it lets the defendant add a nonparty the plaintiff did not sue.

The added party creates a third side to the case. The employer, which now asserts a claim of its own, becomes the third-party plaintiff. The employee, formerly a nonparty, becomes the third-party defendant.⁴ The employee's position needs care. The third-party defendant stands adverse to the original defendant on the reimbursement claim, but it is not aligned with the original defendant, as a coparty, in opposition to the original plaintiff.⁵ Their interests still overlap at one point, because the employee's alleged duty is to cover the employer's liability to the plaintiff. Rule 14 reflects that overlap by letting the third-party defendant assert against the plaintiff any defense the original defendant has to the plaintiff's claim, other than the original defendant's personal defenses such as personal jurisdiction and venue.⁶

The reason for the device appears when you picture the case without it. The employer defends alone and must wait until it loses the main action before it can sue the employee for reimbursement.⁷ That second suit is inefficient, and it is also risky, because two factfinders may see the same events differently. The employee might prevail in the second suit by showing that the plaintiff's claim was meritless, even though the plaintiff already won against the employer, and the employer would then bear the whole loss.⁸

Impleader removes both problems. It puts the employee into the case as a party, spares the parties a separate suit, and ensures that the employee is bound by the judgment in the initial suit.⁹ Because one action decides every issue, the time lag between the two judgments disappears and consistent results become more likely.¹⁰ The rule aims to avoid circuity of action and to dispose of the entire subject matter arising from one set of facts in one action, expeditiously and economically.¹¹

The rule's phrasing reaches further than a defendant who has already lost. Because the nonparty need only be one who “may be” liable, the defendant can assert contingent liability and accelerate the determination of the nonparty's liability.¹² The employer need not wait for a judgment against it before the court decides whether the employee must reimburse it.

Impleader is not mandatory. A defendant may refrain from it and assert its claim in an independent action if it prefers.¹³ The defendant that declines keeps its claim but accepts the burdens just described. It must wait for judgment before seeking reimbursement.¹⁴ The nonparty, never having been in the first case, is not bound by that judgment, and it may contest the plaintiff's claim anew.¹⁵

A mandatory rule might make sense from an efficiency standpoint, but it would cause trouble in two ways. It would create problems when the third party is not subject to personal jurisdiction, and it would override the deference the system has traditionally paid to a defendant's choice of when and where to sue the person who owes it reimbursement. The system may move toward mandatory joinder in situations like this, but it has not yet arrived there.¹⁶

One condition governs timing. The defending party must obtain the court's leave, by motion, if it files the third-party complaint more than 14 days after serving its original answer.¹⁷ The sections that follow take up that rule and the question of who may implead whom. Once the third party is in the case, the third-party plaintiff may also join any other claims it has against it. In one case, a subcontractor sued by a general contractor impleaded its supplier and claimed that the supplier's negligence had caused both the breach of the subcontractor's contract with the plaintiff and the loss of the profit it expected. The subcontractor could thus claim more from the supplier than the plaintiff claimed from the subcontractor.¹⁸