Counterclaims, Crossclaims, and Third-Party Claims/Rules 13 and 14

Welcome to the Civil Procedure Podcast. I am your host, Thomas Main, and this episode is about Ancillary Claims. There are three species of Ancillary Claims. They share certain characteristics, but each also has some distinctive characteristics. The three types of claims that we're going to be discussing are counterclaims, cross-claims, and third-party impletre claims. All three of these are Ancillary to the main plaintiffs versus defendants claim. So think about that main claim, that original claim between one or more plaintiffs suing one or more defendants. So that's our main claim. And all the claims we're discussing here spin off of that main claim. Counterclaims, cross-claims, third-party claims, they're all subsequent to adjunct to Ancillary to that main claim. Of course, there are rules that apply to each of these three types of claims. 13A and 13B apply to counterclaims, 13G applies to cross-claims, and rule 14 applies to third-party impletre claims. I like to think of each of those rules as giving us a key that can open a locked door that permits the assertion of one of those types of claims. But then once the door is open, remember that these claims, all three types, are just more claims. And that in turn means that all of our rules that apply to claims by plaintiffs against defendants apply also to all of these Ancillary claims. That means that once you've unlocked the door to a counterclaim, well, it still needs to satisfy 12B6, and it's subject to rule 11, and it might be amended under rule 15. An additional claims and parties might be joined under rules 18 and 20, and this claim needs to be answered. The idea is to see once that door is open, all of those standard pleading rules would apply to that counterclaim and diddo cross-claims and diddo third-party claims. So we need to know the key to open the door, but remember what's behind that door. In this episode, we're going to focus mostly on just the key. What opens the door for access to each of counterclaims, cross-claims, and third-party claims? To some extent, these are treated sequentially and separately in this episode, but in some limited respects, I will be jumping back and forth a little bit to illustrate some contrast and some comparison. Let's start with counterclaims. A counterclaim is a claim that goes back and directly across a pre-existing V. By V, I mean plaintive V, defend it. And counterclaims always and only go back and directly across a pre-existing V. So Asus B. B has a counterclaim that goes back and directly across that pre-existing V when B asserts a counterclaim against A. Now let's talk about the key that opens the counterclaim door. This one's an easy one because the key always opens the door. There is no constraint on asserting a counterclaim. If you want to assert a counterclaim, you may. If you're trying to link concepts, you might see this as the nice analog to rule 18, which allows plaintiffs to join any claims they want against the defendant. This is sort of the analog to that, where if A is suing B, if B has some claims back against A, let's allow it to be litigated in one big suit. But although the key in rule 13A and B allows us to assert a counterclaim whenever we want, there are some strategic options here and some hidden risks that you'll want to know. First and undoubtedly, most importantly, although you can always bring a counterclaim if you want, there is also a rule here that says you must bring some counterclaims. Now technically, it's not that you must actually assert it what they mean by compulsory counterclaims or what I mean by you must assert it. What that means is that if you don't assert it now, you cannot assert it in some later suit. We call these compulsory counterclaims, they are compulsory if, but only if they arise out of the same transaction or occurrence, the same TNO as the plaintiffs claim against it. There are four exceptions to the compulsory counterclaim rule, but let's wait a minute on those and do some other more important things first. The issue of whether a counterclaim is compulsory or not is tricky because it needs to be considered by the defendant here, lest you commit malpractice, it needs to be considered by the defendant, but its compulsoryness won't actually be litigated here. That's kind of a strange dynamic to this mandate. So let's unpack that. We're going to discuss that you may assert a counterclaim, even if it doesn't arise out of the same transaction or occurrence, and we're going to call those permissive counterclaims. So if you want to assert a counterclaim, it really doesn't matter whether it's compulsory or permissive. It's not going to get litigated in this case because it doesn't matter. If you want to assert it, go for it. The key under rule 13 allows you to assert any counterclaim you want, but sometimes you have a counterclaim that you would rather not assert. Imagine that plaintiffs file suit against the defendant at such and such time in such and such court, but maybe the defendant doesn't want to litigate their counterclaim in this court. At this time, it's not the best timing, it's not the best forum, this isn't the right judge, but you must assert it if it arises out of the same transaction or occurrence. Imagine maybe it does, arguably it does, but maybe it doesn't. Now if you assert it, no one will measure whether it is or isn't the same transaction or occurrence, because like we just said, you can always assert it if you want, but if you don't assert it, here's the deal. There's going to be some future suit number two when you try to assert it, and it will only be then in that future suit number two that the judge in that suit number two will be looking back at this suit number one and asking, hmm, did this suit number two claim arise out of the same transaction or occurrence as the claim in suit number one? Because if it did, the defendant waived their right to assert that counterclaim as some claim in that suit number two, but the issue of whether it is or isn't to the same TNO, it gets litigated not in the suit number one, but in the suit number two. So net net, when debating whether to assert a counterclaim, you really need to err on the side of asserting it in the suit number one, because the risks are just too high if you don't. So what constitutes the same transaction or occurrence? That's what separates compulsory from permissive counterclaims. So what is same TNO, same transaction or occurrence? Well, we've sung this song before. My three tools for talking about whether something is the same transaction or occurrence, I like to start by thinking about proximity of time, then proximity of space, and then whether there's some logical relationship. Those are just my tools for getting a conversation started about whether something is or isn't the same TNO. So imagine, for example, an employee sues their employer for failing to accommodate their disability. They bring an action under the Americans with Disabilities Act. Now, the employer has a claim against the employee for stealing office equipment. The employee took computers or printers or something home. Employee files the action under the Americans with Disabilities Act is the employer's claim against the employee a compulsory counterclaim or is it a permissive counterclaim? It's compulsory if that claim for conversion stealing the office equipment, if that is part of the same transaction or occurrence as the failure to accommodate the employee's disability. Well, if I'm using my three tools for talking about same transaction or occurrence, proximity of time. Well, it's not exactly the same time when these claims accrued, but it might be close. It is the same place, it's sort of a workplace, and maybe there's a logical relationship. Tell me more about the stealing of the office equipment. Did the employee steal the office equipment in order to get their work done at home because they couldn't get their work done in the workplace because of the disability? Or are these entirely unrelated? We'd probably fight about it. Imagine a second hypothetical. Imagine that HBO owned by AT&T. Sue's John Oliver for breaching a contract which obligates him to refrain from disparaging his employer. On the same day that Oliver skewered HBO and AT&T in his monologue on his television show, imagine that he suffered serious injuries in an elevator accident that occurred in the building where he records his show. And it's a building that HBO AT&T owns. Is Oliver's personal injury claim a compulsory counter claim? Proximity of time? Pretty close. Proximity of place? Yes. But is there any logical relation between the breach of contract for disparaging his employer and falling in the elevator? No. So maybe the personal injury claim doesn't arise out of the same TNO, but are you confident enough not to assert it here? And again, realize that the only way we'll find out whether it is the same TNO is when at some future point Oliver files the suit number two, his personal injury claim. We could then imagine HBO AT&T screaming, "Wait a minute, this cause of action arose out of the same transaction or occurrence as the breach of contract claim that we litigated in suit number one he had to assert it, and therefore his failure to do so means that he waived his right to recover." If and when a counter claim is compulsory, notice that the plaintiff gets some tactical advantage by filing first. They're choosing the forum. They're choosing the timing, not only for their own action, but for any compulsory counter claim too. Next I want to address three common mistakes, the three most common mistakes that I see with respect to compulsory counter claims. One is imprecision about the identity of the parties. Watch for parties who are suing or are being sued in their representative capacities because you can't jump out of that identity. So for example, if the plaintiff is the executrix or the administrative of the estate, well then the counter claims need to be against the estate, not against the executor in their personal capacity. Similarly, if the AT&T entity that hired and entered into the contract with John Oliver, if that entity is not the same AT&T entity that owns and operates the buildings, well then that's necessarily not a compulsory counter claim. In fact, it's not even a permissive counter claim because the owner of the building is not even a party in the suit. So that mistake that I'm flagging then is imprecision about the identity of the parties. Second common mistake, much more forgivable, and that's being too precise or hardcore in cases involving default judgments or pretrial dismissals. Imagine a suit where plaintiff sues a defendant, and the defendant does have a claim that arises out of the same transaction or recurrence as the plaintiff's claim against it. But imagine that the plaintiff's claim is so deficient on its face that the defendant moves to dismiss the plaintiff's counter claim on a 12b6 and imagine that the court grants that dismissal. Well, what about that compulsory counter claim that was never asserted? Was it waived? Since after all, that was a compulsory counter claim. The rules don't address this, so it's a fun thing to test to see how students wrestle with this ambiguity. The mainstream approach to this problem is that courts say that pretrial dismissals don't count. You need something more like a judgment on the merits, on the main claim before you can say that the defendant waived their compulsory counter claim by failing to assert it in that action. Third common mistake with compulsory counter claims is dealing with statutes of limitations. Imagine for example that the plaintiff files their complaint the day before the statute of limitations expires on their claims. They file the complaint, it eventually gets served a few days later, and the defendant has a compulsory counter claim that arises out of exactly the same transaction or occurrence. But if the statute of limitations on the counter claim is the same as the statute of limitations on the plaintiff's claim, see how the defendant is asserting their counter claim after the statute of limitations has run? How should we handle that? At a minimum, though there's nothing in the rules about this, at a minimum you can expect the court to toll the statute of limitations. So that means that when the defendant asserts their counter claim the court will at minimum treat it as though it were asserted on the same day that the plaintiff filed their complaint against that defendant. But there are also cases that are even more aggressive because imagine that the counter claim has a shorter statute of limitations than the statute of limitations on the plaintiffs claim. So the plaintiffs claim might have a three-year statute of limitations. They file on the second year and the 364th day. The defendant has a compulsory counter claim that arises out of the exact same incident. What then? Tolling won't be enough. And in that circumstance some courts resurrect even an expired statute of limitations on a compulsory counter claim. So that's a fun anomaly for courts to wrestle with because the potential for unfairness is really high in those circumstance. Yet you have to do some gymnastics in order to reach what seems to be the fair resolution in that instance. Next let's talk about exceptions to the compulsory counter claim rule. If you're looking at the rule you'll see that there are only two enumerated exceptions but if you look at all of 13a you can parse the rule and see that in fact there are really four things that we need to be watching for that are exceptions to the compulsory counter claim rule. The first of these is lurking in the very first sentence of 13a1. And that is that the defendant isn't going to have to assert a counter claim. If the claim hasn't matured at the time of service upon them. One example of this would be counter claims where the counter claim depends on the outcome of the plaintiffs suit against the defendant. So if the defendant for example has a claim for contribution or a claim for malicious prosecution but those causes of action are derivative they are dependent on the outcome of the plaintiffs suit against the defendant. Those punitive counter claims are not waived if the defendant does not assert them in this proceeding. I also want you to see the potential for unfairness that would exist if we didn't have an exception like this. So this will also make the exception more intuitive to you because you'll see why we need it. Imagine a joint venture between companies a and b and the joint venture just isn't going well and ultimately a sues b for breach of contract. They're litigating the breach of contract action and as that litigation is nearing its sunset and a whether they're about to win or about to lose doesn't matter for what I'm going to discuss but as the case is almost done a does something else in the joint venture imagine them emptying a bunch of bank accounts or something that really advantages a and hurts b but then the lawsuit which we just said was about the sunset finishes up and then after that lawsuit finishes poor b says well wait a minute now they took another million dollars out of the joint account and so b then goes to su a for that rating of the accounts and a then says no no that was a that all arose out of that same transaction or occurrence that we litigated in that earlier suit that was all about our joint venture. We need an exception here to protect b and that exception is for circumstances where the claim hasn't matured at the time of service of the complaint. Now strategically we also need to be careful here because remember it's going to be some future suit number two where some judge in suit number two is going to be looking back at this suit number one to determine whether or not that claim had matured at the time of service but there is an exception here for that circumstance exception number two you don't have to assert a counter claim if the claim that you would be asserting requires the jointer of somebody over whom the court does not have personal jurisdiction. We need the exception because it would be unfair to tell a defendant you had to assert a counter claim or lose it in circumstances where they can't fully litigate this claim before this court so that exception has to exist. The third exception is for circumstances where the claim that would otherwise be a compulsory counter claim is already the subject of another pending action at the time of filing. Our first exception was talking about the maturation of the claim at service. Notice the subtle switch here our third exception applies to claims that are subject to another pending action at the time of filing of the plaintiffs complaint so imagine that Ford is suing Toyota and Toyota has a claim that arises out of the same transaction or occurrence as Ford's claim against it but Toyota says well wait a minute we were already suing Ford in some other action. This third exception says you don't have to assert that counter claim in this Ford versus Toyota action you had already filed it in some other action before this action was filed. This exception exists out of respect for the importance of choosing a forum and so the idea is that if Toyota had already chosen a forum for its litigation against Ford Ford shouldn't be able to override that by bringing litigation somewhere else and then requiring the assertion of the counter claim in that second proceeding. Fourth and final exception this one has very narrow applicability. It applies only in circumstances where the defendant has been brought into court yet the court doesn't have personal jurisdiction over the defendant instead it has only in REM in REM jurisdiction over some piece of property and so in rule 13a2b the idea is well if the court doesn't have jurisdiction over the defendant in a personal capacity well then we're not going to require the defendant to assert any counter claim in that personal capacity so with that list of four you have an attack plan for circumstances where it looks like somebody has a compulsory counter claim but in fact they don't have to assert it under rule 13a. One more strategic point here do not put this on the list of exceptions because it's not an exception it's just a interesting twist that you can contemplate or raise in class as a strategic matter and that is that a defendant who has a compulsory counter claim well maybe they assert it or maybe they don't in the action but here's another possibility file it as a separate suit and tactically it's more interesting if you suggest filing a separate suit in state court so in federal court we have a versus b b has a compulsory counter claim but b either in addition to asserting the compulsory counter claim or in lieu of asserting a compulsory counter claim files an action against a in state court. Now the state court might very well stay or even dismiss the b versus a action when a says wait a minute I'm suing b in federal court what's going on the state court might respect that it might stay or dismiss but it is not required to and here's the deal if the state court resolves it first it's going to be preclusive in federal court so that's just an interesting aside about parallel litigation but I like to flag it because it does sort of fit in this space of thinking strategically about compulsory counter claims because as a defendant what I don't like about compulsory counter claims is that I didn't pick the forum somebody is forcing my hand to assert something when and where I might not want to so that's a lot of discussion we've had about compulsory counter claims of course you can always assert a counter claim even if you don't have to you may assert permissive counter claims it's just that you're not required to which is to say that you have a choice you can assert it in this action or you can initiate some separate action whether now or later so there are compulsory counter claims and there are permissive counter claims and our dividing principle there is whether they arise out of the same transaction or occurrence if they do they're compulsory or if you want some fancier language from a century ago you can call those recoupment actions when they arise out of the same TNO when they don't arise out of the same TNO they are permissive or again if you want to show off a little bit and sound like you've been practicing law for a hundred years you could use the word set off set off is permissive recoupment is compulsory the decision whether to assert a permissive counter claim is mostly a strategic choice of whether you think your claim looks stronger or weaker whether it helps or hurts your defense of the claim against you whether this is the right time the right court all that will influence your decision whether to assert a permissive counter claim to that list I want to make sure you have a couple of more strategic considerations to keep in mind most importantly by asserting a permissive counter claim the defendant is usually thought to be waving venue and personal jurisdiction objections on the main claim so when ASUS B if B wants to challenge venue or personal jurisdiction don't assert a permissive counter claim because that would probably be fatal to your personal jurisdiction and venue objections let's talk now about cross claims cross claims or claims that do not cross a pre existing V remember that counter claims went back and directly across a pre existing V cross claims do not cross a pre existing V but they do create a new one so this is ASUS B and C well there is no V between B and C unless B asserts a cross claim against C so that didn't cross a pre existing V but it created a new one between B and C and rule 13G gives us the key that opens the door to a cross claim and the door is opened for cross claims if and only if the cross claim arises out of the same transaction or occurrence as the main claim so when A is suing B and C the B versus C cross claim is legit only if the B versus C cross claim arises out of the same transaction or occurrence as the A versus B and C claim or the rule says if the cross claim relates to any property that is the subject matter of the A versus B and C main claim and then of course once the door swings open because it's a proper cross claim under 13G well it is a quote claim close quote term of art under the federal rules that means that it needs to comply with rule 11 it means it needs to be answered it means that the jointer rules in rule 18 and 20 can apply to expand the scope of that cross claim one of the rules that applies to claims of course is that it must state a claim for which relief may be granted it needs to survive a 12 B6 that means you need a cause of action without a doubt the most common mistake that I see students make with respect to cross claims is that they'll try to assert a cross claim but they'll just be finger pointing or blaming the other defendant you need a cause of action in order to assert a claim that's true for complaints it's true for counter claims it's true for cross claims and it will be true for third party claims you need a cause of action that's to be distinguished from it wasn't me it wasn't me is not a cause of action if you step back and look at the policy behind cross claims you'll see some interesting things one notice that the same transaction or occurrence requirement the same TNO requirement prevents the cross claim from derailing the main litigation you can't assert a cross claim unless it has some nexus to the main action which is policed by that same TNO requirement yet we don't require the assertion of cross claims so if this were a rule that were obsessed with getting the entire litigation resolved all at once preventing multiple suits we would instead have a compulsory cross claim rule yet we don't instead we say you may assert it defendant one may assert a cross claim against defendant two but you don't have to you may instead assert it in some separate action this is another instance of that policy preference that's embedded in the federal rules where generally speaking we like to give persons with claims the flexibility to choose the forum to choose when they want to sue and requiring persons to assert claims runs counter to that principle we deviated from that principle with respect to compulsory counter claims but the permissive counter claim the permissive cross claim these are instances where we say you may assert it but you don't have to because the standard for asserting cross claims is our familiar same transaction or occurrence requirement we don't need to spend much time there we know how to make those kinds of arguments again I like the tools is it proximate in time is it proximate in space what is the logical relationship between the claims we could do that work here to determine whether or not a cross claim may be asserted but remember there is a little bit more wiggle room here under 13G the cross claim is also appropriate if the cross claim relates to any property that is the subject matter of the main action now if you're looking at the rule you'll see 13H which says with respect to both cross claims and counter claims you can join additional parties that's really redundant because rule 20 would apply to this claim in any event because rule 20 is just one of that long list of rules that apply to all quote claims close quote that's rule 18 rule 11 12 B6 rule 15 rule 20 would be on that list whether or not 13H confirmed it one last point about cross claims this isn't in the rule but the practice is to request court permission honestly I don't know why it's not in the rule or put another way I don't know why it's the practice but as you're thinking about practice rather than exams keep in mind that the practice in most courts or at least all the courts with which I'm familiar is to request court permission to assert a cross claim let's turn then to our third species of ancillary claims we've covered counter claims we've covered cross claims now let's look at rule 14 impleaters and impleater is also called a third party claim or a rule 14 claim those are all synonyms impleaters third party claims rule 14 claims and the keyhole for accessing an impleater is the most complicated of the three species of ancillary claims let's get some terminology clarified here first let's imagine a lawsuit where a sues b there is one v there notice that it's a versus b a v b and let's call that the main action with an impleater we have b suing c there is another v there that's the third party claim we call that so you should see it as a versus b versus c the b versus c claim is our impleater it's the third party claim that is b bringing in somebody who's not a party to the action but is now added to the action in that sequence of a versus b versus c b is a defendant in the main action but we're also going to refer to them as the third party plaintiff because on the b versus c claim that's their role they're a plaintiff in that context so the defendant b is both the defendant in the main action and the third party plaintiff on the impleater we also refer to c as the third party defendant not the defendant but the third party defendant we only allow these claims under rule 14 under very limited circumstances and it doesn't look like any of the other analyses that we've been doing we're only going to allow these things when the third party plaintiff is bringing an action against a third party defendant because the third party defendant may be liable to the third party plaintiff for all or some of which the third party plaintiff may be liable to the original plaintiff that's a mouthful that we need to straighten out as we descend down into the details of this rule let's start with two key principles to make sure we understand the gist of what's going on here first the rule says that rule 14 claims are brought against non parties now rule 14 is making them a party it's making them a third party defendant if you're using rule 14 to assert a claim against someone who is already a party you are misusing rule 14 that's the wrong rule rule 14 only works against somebody who is not already a party to the action that's principle number one principle number two understand that because you're adding a tail to the litigation dog with your impleater you're adding a new party you're adding a new v to the lawsuit against a new party and for that reason because you're adding a tail we are skeptical about defendants distorting the main claim in the litigation we are not going to allow defendants to hijack the main suit or we're not going to let some impleater tail wag the main claim dog so we are only going to allow certain types of claims that's why we're so careful here with the constraints on when we're going to allow impleaters into a suit and specifically we're only going to allow impleaters in circumstances where the claim that the third party is asserting is contingent and derivative of that main claim that is not at all the same thing as saying that it arises out of the same transaction or occurrence for example no it has to depend on the outcome of the main claim and there are a couple of ways to test that one is to say would this claim between b versus c exist regardless of the outcome of a versus b if that b versus c claim would exist regardless of the outcome of a versus b then rule 14 is not satisfied a second way just to make sure think about b winning on the a versus b claim if b wins that claim just b still have a claim against c if b still has a claim against c well then again that's not a good impleater when you have a good impleater with b versus c that claim will evaporate when b prevails on the a versus b claim we're looking for liability that flows through b and to c and if there isn't any liability flowing to b well then there's nothing left to flow from b to c on the other hand if b has some claim against c that exists independent or separate or regardless of the outcome of a versus b even if it arises out of the same transaction or occurrence that's not the test the test is this unique flow through liability now to see that flow through liability i like to use the word reimbursement that's my framework that's my word reimbursement unless i'm trying to sound sophisticated and then i would use the word indemnification but reimbursement is what's going on here and there are two sources of law that can create the reimbursement like obligations that create this flow through liability that can satisfy rule 14 and the two sources of law are contracts and laws contracts can create a reimbursement obligation when someone in a contract voluntarily undertakes responsibility to reimburse someone else for the liability that that someone else might face this is what insurers do when you buy car insurance in exchange for the premiums that you pay to your insurer the insurer says hey in the event that you wind up liable to somebody else for injuries that you cause in an automobile accident we will reimburse you we've got your back so when you injure somebody in a car accident that somebody can sue you and you might be liable to that person that you injured but you in turn have an action against the insurance company who reimburses you for that liability that you faced to the person that you injured and if the insurance company refused to provide that coverage then you would have a good impleater the person you injured would be a that person would sue you because your negligence caused the accident and if the insurer refused to reimburse you well then you would implead your insurance company contracts can create that reimbursement relationship this is also what terms of service might do when you go on to a particular website and one of the things that you might agree to as a matter of contract is that if you do something improper on the site and the site gets sued for your misconduct your violations of intellectual property rights or some sort of harassment what you might agree to as a matter of contract is to reimburse the site for any exposure they might face any liability that they might face if they get sued see how these are derivative of the main claim you don't have a claim against your insurer unless or until you're liable to somebody else the website doesn't have any right to seek reimbursement from you for copyright infringement unless or until they face exposure for that liability contracts can create reimbursement obligations and so can laws when you're injured by eating poisoned food at a McDonald's you don't have to sue the person who poisoned the food the worker in the back or the careless person at the meat plant you can just sue McDonald's on the doctrine of respond at superior but McDonald's has a right under the law to seek reimbursement for its liability to you the law gives McDonald's that reimbursement right now the most common mistake that I see with the importers these third party claims is somebody will be using this because the defendant wants to blame somebody else if you're using rule 14 to blame somebody else you might be right but you're probably wrong but even if you're right you're probably right for the wrong reason let's figure out why it's probably wrong to use rule 14 to blame somebody else imagine somebody keys my car while it's parked in the parking lot and I sue you for the property damage and let's assume that you didn't key my car but you happen to have some knowledge about who did in that lawsuit me versus you you should just be denying that you keyed my car and if you want to persuade me with that denial you might even identify who the real perpetrator was but you wouldn't impede them because blame is not a cause of action plus think about it strategically if you aren't responsible to me then that's the place to deal with it you want out of that lawsuit an imp leader would put you in the middle of that lawsuit with me suing you and then you suing the perpetrator well you don't want to be proving that the perpetrator did anything to me or to you you just want out of that suit the worst case scenario there is that the real perpetrator might be judgment proof like well you wouldn't want to be left holding the bag in the middle of a versus b b versus c you just want out of that suit completely so don't see blame as a cause of action but what makes this complicated is that well as I said remember there are laws that create reimbursement obligations and one of those laws in some states is called a contribution statute and what contribution statutes do is they give a cause of action to one joint tort phaser against some other joint tort phaser who wasn't sued because of joint and several liability plaintiffs are not going to always sue all of the responsible defendants when you ate that poisoned food from McDonald's well you didn't want to sue all the conceivable defendants you found a good defendant and if that defendant was jointly and severally liable for all your damages well then that one defendant might be enough from the plaintiffs perspective but just like McDonald's can go after the employee that poisoned the hamburger someone who is or may be liable in tort to the original plaintiff can bring an action against somebody else who contributed to that injury that's what the contribution statute in those states that have them and not all states do but in those states that have them the third party plaintiff can bring a contribution claim against some joint tort phaser that the plaintiff didn't sue and the third party plaintiff can get some contribution some reimbursement for the liability that they suffered to the original plaintiff but it's not blame that is the cause of action it's a contribution statute that creates a right to recovery if and only if the third party plaintiff is liable to the original plaintiff these rule 14 reimbursement style claims do not have to be asserted there's no such thing as a compulsory third party claim they're like cross claims you may assert them but you don't have to of course once you have asserted a proper impleader a proper third party claim once the key opens that door well like all these other claims needs to be answered subject to rule 11 can be challenged on a 12 B6 might lack jurisdiction all of our usual claim rules apply to these third party claims including by the way joining additional claims under rule 18 or additional parties under rule 20 so once any of these claims is asserted there's this whole cascade of possibilities including more ancillary claims off of the ancillary claims the assertion of a rule 14 impleader might trigger a compulsory counter claim by C against B or if we jump back to cross claims well there might be a cross claim against one defendant against a co-defendant but maybe there's an impleader stemming off of that cross claim or it's conceivable that there could even be a counter claim where off of the counter claim there's an impleader where the original plaintiff who is now the defendant on the counter claim needs to bring in a third party defendant on that counter claim in addition to all of those possibilities that are a product of the fact that rule 14 is just another quote claim close quote like all the others that introduces all of those possibilities rule 14 a itself authorizes some claims that we wouldn't be able to assert through any of our other techniques for example 14 a to d allows the third party defendant to assert against the plaintiff that's the original plaintiff and he claim arising out of the same transaction or occurrence as the main claim now without 14 a to d that claim wouldn't be permitted use it as a review of our counter claim rule well that wouldn't be a counter claim because a counter claim is only a claim that goes back and directly across a pre-existing V there is no a versus C claim in that scenario so that would not be a counter claim by C back against A instead there's the A versus B and then there's the B versus C but a claim by C against A would not be back and directly across a pre-existing V there would be two Vs in that sequence so that's not a counter claim so we need 14 a to d if the system wants to permit the assertion of that kind of claim another claim that is authorized only by rule 14 is claims by one third party defendant against another third party defendant imagine for example that a sues B and C in the main action a versus B and C B imp leads their insurance company let's call them X and C imp leads their insurance company let's call them Y in that situation X and Y are both third party defendants but they're not co-defendants in the sense that B and C are co-defendants they're each just sort of derivative at the end of a tail on a third party claim yet the last part of 14 a to B allows X to bring a cross claim against Y it allows one third party defendant to bring a claim against another third party defendant our cross claim rule would not alone permit that claim we need those last words in 14 a to b if the system wants to tolerate the assertion of those claims in order to get the whole dispute resolved in one matter of course it's all permissive so nobody's forcing the assertion of these claims it's just may one last point about rule 14 third party imp leaders when we're looking at that third party claim of course the defendant is a defendant in that respect like all other defendants they need to answer the complaint and they can include affirmative defenses and they can bring a 12 b6 yeah we know they are a defendant just like other defendants but on top of all that there's something additional in 14 a to a that is fun to analyze because in addition to the defenses that the third party defendant can assert on the third party claim itself it can also assert defenses that were available to the third party plaintiff on the claim that was asserted by the original plaintiff against them here's what we're talking about imagine that in the main claim a versus b imagine that b had an affirmative defense of statute of limitations that b didn't assert on the a versus b claim then imagine that b loses to a and seeks reimbursement seeks indemnification from c well this is all about flow through liability and c says well look I understand that I agreed to reimburse you as a matter of contract or under the applicable law but neither one of us should have been liable you should have asserted the affirmative defense of statute of limitations on the a versus b claim and then there wouldn't have been any liability flowing down to me 14 a to c says that's right third party defendant and you can assert not only your own defenses on the b versus c claim but you can assert as against b the defenses that b could have should have asserted on the a versus b claim so as to that statute of limitations defense that we just hypothesized understand that it's not a problem with the statute on the b versus c claim that wasn't untimely there was nothing about the impleader that violated the statute of limitations it was the a versus b claim that was brought outside the statute of limitations but 14 a to c allows the third party defendant to assert not only their own defenses on the third party claim but defenses that were available to the third party plaintiff on the main claim now that's fun or more precisely it's fun when you're the only one in the room who's mastered the intricacies of these rules and can run circles around everybody else and I want that to be you so we had three types of ancillary claims counter claims cross claims third party claims there is a key that opens the door to each of those easy to open the counter claim door a little bit harder to open the cross claim door and very difficult to open the impleader door different policies at stake in tolerating the proliferation of claims being added to a suit and remember once the door is open to any of these claims all of the rules that pertain to claims come crashing in they need to be answered they need to survive a 12b6 they might be amended they might trigger counter claims all of that applies to each of these new claims that are authorized under rule 13 and 14 that was a long one but that concludes this episode of the Civil Procedure Podcast thank you for your attention and have a good day