A third-party complaint is a claim asserted by a defendant "Third-party Plaintiff" against a nonparty now a third-party defendant who is or may be liable to the defendant for all or part of the claim it. Unlike a counterclaim or cross-claim which may be asserted in the responsive pleading, a third-party claim is asserted through the service of a summons and complaint by the defendant who for the purposes of the third-party claim is called the "Third-Party Plaintiff.
The third-party complaint does not commence a new action and there no filing fee. Upon the filing of a third-party complaint, the clerk must issue a third-party summons Director Form D to the third-party plaintiff or their counsel. It is the responsibility of the third-party plaintiff to serve the summons and complaint on the third-party defendant and on the first-party plaintiff. The third-party plaintiff must, by motion, obtain the court's approval if it files the third-party complaint more than 14 days after serving its original answer.
See Answer in Adversary Proceedings for filing a responsive pleading to a third-party complaint. The special answer shall be served on the third-party plaintiff and on the person who asserted the cause of action against the third-party plaintiff. The counterclaim is abolished. Any cause of action that formerly was asserted by a counterclaim shall be asserted by a cross-complaint. Where any statute refers to asserting a cause of action as a counterclaim, such cause shall be asserted as a cross-complaint.
The erroneous designation of a pleading as a counterclaim shall not affect its validity, but such pleading shall be deemed to be a cross-complaint. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a, counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in these rules, if jurisdiction of them can be obtained and their joinder will not deprive the Court of jurisdiction of the action; provided that in tort cases this rule shall not be applied so as to permit the joinder of a liability or indemnity insurance company, unless such company is by statute or contract liable to the person injured or damaged.
If the court orders separate trials as provided in Rule , judgment on a counterclaim or cross-claim may be rendered when the court has jurisdiction so to do, even if the claims of the opposing party have been dismissed or otherwise disposed of.
Amended by orders of March 31, , eff. Subdivision a. Saxe App. The rewording of the subdivision in this respect insures against an undesirable possibility presented under the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action.
Subdivision g. The amendment is to care for a situation such as where a second mortgagee is made defendant in a foreclosure proceeding and wishes to file a cross-complaint against the mortgagor in order to secure a personal judgment for the indebtedness and foreclose his lien.
A claim of this sort by the second mortgagee may not necessarily arise out of the transaction or occurrence that is the subject matter of the original action under the terms of Rule 13 g. Subdivision h. The change clarifies the interdependence of Rules 13 i and 54 b. When a defendant, if he desires to defend his interest in property, is obliged to come in and litigate in a court to whose jurisdiction he could not ordinarily be subjected, fairness suggests that he should not be required to assert counterclaims, but should rather be permitted to do so at his election.
If, however, he does elect to assert a counterclaim, it seems fair to require him to assert any other which is compulsory within the meaning of Rule 13 a.
Clause 2 , added by amendment to Rule 13 a , carries out this idea. It will apply to various cases described in Rule 4 e , as amended, where service is effected through attachment or other process by which the court does not acquire jurisdiction to render a personal judgment against the defendant. Clause 2 will also apply to actions commenced in State courts jurisdictionally grounded on attachment or the like, and removed to the Federal courts.
Rule 13 h , dealing with the joinder of additional parties to a counterclaim or cross-claim, has partaken of some of the textual difficulties of Rule 19 on necessary joinder of parties. See Advisory Committee's Note to Rule 19, as amended; cf. Rule 13 h has also been inadequate in failing to call attention to the fact that a party pleading a counterclaim or cross-claim may join additional persons when the conditions for permissive joinder of parties under Rule 20 are satisfied.
The amendment of Rule 13 h supplies the latter omission by expressly referring to Rule 20, as amended, and also incorporates by direct reference the revised criteria and procedures of Rule 19, as amended.
Hereafter, for the purpose of determining who must or may be joined as additional parties to a counterclaim or cross-claim, the party pleading the claim is to be regarded as a plaintiff and the additional parties as plaintiffs or defendants as the case may be, and amended Rules 19 and 20 are to be applied in the usual fashion.
See also Rules 13 a compulsory counterclaims and 22 interpleader.
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