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Into the Labyrinth



Into the Labyrinth

Joinder of Parties under Rule 14


A persistent civil procedure theme explored in the earlier chapters is the right of the plaintiff or plaintiffs to sculpt the lawsuit by their choice of the forum and their initial decisions to join parties as plaintiffs or defendants. An equally persistent theme, however, is the various ways in which the plaintiff’s well-laid plans may go awry. For example, she may end up in a different court if the defendant removes or seeks a change of venue, or she may end up defending a claim if another party asserts a crossclaim or counterclaim against her.

Rule 14 provides another example of the complexities that await the unwary plaintiff who disregards Dickens’s famous advice.[1] Rule 14(a) gives a defendant a limited right to implead (that is, bring into the suit) new parties against whom she has claims related to the main action. Under the rule the defendant may bring in a person not yet a party to the suit who may be liable to her—the defendant—for all or part of any recovery the plaintiff obtains on the main claim.

In many tort cases third parties are impleaded for contribution, that is, to obtain a judgment that the third party is liable to pay the main defendant part of the damages she is ordered to pay the plaintiff. For example, suppose that Napoleon sues Wellington for negligently injuring him during a polo match. Wellington claims that the negligence of Robespierre, riding a third horse, also caused the accident. Under many states’ rules of contribution among joint tortfeasors, Wellington would be entitled to recover from Robespierre part of any damages Wellington pays Napoleon,[2] if he can prove that Robespierre was also negligent. On these facts Wellington may implead Robespierre under Rule 14(a)(1) since Robespierre may be liable to Wellington for part of any damages that Wellington is ordered to pay Napoleon. The case looks like this:

In other cases the defendant may claim that the third party is liable to her for all damages that she may have to pay the plaintiff. For example, consider Ronan Construction’s third-party complaint against Jones in the Schulansky case. Ronan’s last claim for relief (see infra, p. 682) alleges that, if it is liable to Schulansky for the damage to the house caused by Jones’s back-hoe work and pays for that damage, it should be reimbursed by Jones. Under tort law, this is often true: Ronan, as the general contractor, would be liable for the negligence of a subcontractor but, if the subcontractor’s negligence caused the harm, would have a right of full indemnification from the negligent subcontractor. On this theory, Ronan may implead Jones to recover “all” of its liability to Schulansky.

[1]. “Suffer any wrong that can be done you rather than come [to the courts of chancery],” Charles Dickens, Bleak House (Norton ed. 1977), p. 7.
[2]. In some jurisdictions, Wellington would recover half of the judgment from Robespierre. In others, the extent of Robespierre’s liability for contribution would depend on the percentage of negligence the jury attributed to him in causing Napoleon’s injury. In states that have abandoned joint and several liability, however, contribution is not allowed. See J. Glannon, The Law of Torts: Examples and Explanations (4th ed. 2010), 592-593.

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