Impleader

Question 1

A defendant who impleads a third-party defendant is called?

Answer 1

A “third-party plaintiff.”

Question 2

How long does a defendant have to file and impleader motion?

Answer 2

The original defendant may either implead a third party in its answer to the original complaint or file a third-party complaint separately within 14 days after serving the answer. Failure to file a third-party complaint within this 14-day period will require the original defendant (third-party plaintiff) to seek leave of the court to implead.

Question 3

Under indemnification what is derivative liability in diversity and federal question jurisdiction.

Answer 3

To properly plead a third-party complaint, the third-party plaintiff (the original defendant) must be claiming that the third-party defendant is derivatively liable (e.g., indemnification or contribution). See Fed. R. Civ. P. 14(a). It is improper for a defendant to file a third-party complaint against a third-party defendant on the theory that the third-party defendant is the only liable party, and that the original defendant is not liable at all.

In the context of diversity cases, 28 U.S.C. § 1367(a) allows for a court to exercise supplemental jurisdiction in “all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy.” In application, when an original defendant seeks to implead a third-party defendant for indemnification or contribution, if the third-party defendant does not satisfy diversity requirements, the court will invoke supplemental jurisdiction because the claim falls within the “common nucleus of operative fact” rule of supplemental jurisdiction.