Rule 14(a)(2)(D) of the Federal Rules of Civil Procedure permits the third-party defendant to “assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff,” i.e., the defendant. And Rule 14(a)(3) allows the plaintiff to “assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.”

Third-party practice in federal court is meant to “liberalize and simplify” federal procedure and “reduce litigation by having one lawsuit do the work of two.” See Caroll v. United States, 149 F.R.D. 524, 527 (W.D. La. 1993). Thus, when a defendant joins a third party who “is or may be liable” to the defendant for all or part of the plaintiff’s claims, the entry of the third-party defendant into the action provides the third-party defendant and the original plaintiff with an avenue to assert affirmative claims against one another. Rule 14(a)(2)(D) of the Federal Rules of Civil Procedure permits the third-party defendant to “assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff,” i.e., the defendant. And Rule 14(a)(3) allows the plaintiff to “assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.”

Claims under Rules 14(a)(2)(D) and 14(a)(3) are often incorrectly styled as counterclaims or crossclaims. Although courts are unlikely to dismiss such claims merely due to mislabeling, plaintiffs and third-party defendants should carefully assess the nature, scope, and timeliness of the claims before asserting them. Notably, Rule 14(a) claims are never compulsory and, when asserted, must arise from the same transaction or occurrence underlying the plaintiff’s claims against the defendant/third-party plaintiff in the main action. Perhaps most significantly, the joinder of the third-party defendant does not revive, waive, or toll the statute of limitations on any claim running between the plaintiff and the third-party defendant. Thus, such claims must be asserted within the statute of limitations regardless of when the third-party defendant is joined as a party in the main action.

Rule 14(a) Claims Are Permissive, Limited in Scope, and Do Not Constitute Counterclaims or Crossclaims

A Rule 14(a) claim running between a plaintiff and a third-party defendant is neither a counterclaim nor a crossclaim, which may only be asserted against an “opposing party” or “co-party,” respectively. Unless the plaintiff has asserted a claim directly against a third-party defendant, a claim asserted by the third-party defendant against the plaintiff is not a counterclaim because the plaintiff is not a party adverse to the third-party defendant. See Sony Financial Services v. Multi Video Group, 2003 WL 22928602 (S.D.N.Y. Dec. 12, 2003). Likewise, a crossclaim may be asserted only against parties having the same status in the litigation, i.e., parties that are on the same side in the litigation. Thus, a third-party defendant could assert a crossclaim only against other third-party defendants, not the original plaintiff. See Pardy & Rodriguez,v. Allstate Insurance, 2021 WL 4263357 (M.D. Fla. Sept. 20, 2021).

Although federal courts strive to “construe pleadings so as to do justice” and typically “ignore nomenclature and treat a claim as if it has been properly labeled,” Bland v. Criswell, 2023 WL 5672191 (M.D. Pa. Sept. 1, 2023), courts have made clear that a third-party defendant’s claim against an original plaintiff and a plaintiff’s claim against a third-party defendant are claims arising under Rules 14(a)(2)(D) and 14(a)(3), respectively, and that such claims do not constitute counterclaims or crossclaims.

The distinction is important because plaintiffs and third-party defendants cannot import Rule 13(a)’s compulsory-counterclaim procedure onto any Rule 14(a) claim.Rule 14(a) claims always are permissive such that a plaintiff and a third-party defendant may assert them in separate litigation. See Eagle Rock Timber v. Town of Afton, 2009 WL 10626531 (D. Wyo. July 1, 2009). Thus, plaintiffs and third-party defendants should carefully consider whether any claims between them should be filed in an independent action. Where a plaintiff or third-party defendant elects to assert a Rule 14(a) claim in the main action, the claim must arise from the same transaction or occurrence underlying the plaintiff’s claim against the defendant/third-party plaintiff. Thus, efforts to use Rule 14(a) to assert claims concerning remote or independent disputes will be rejected.

The Joinder of a Third-Party Defendant Does Not Revive, Toll, or Waive the Statute of Limitations on a Claim Between the Plaintiff and the Third-Party Defendant

Because Rule 14 is procedural, it cannot extend or revive substantive rights that are otherwise time-barred. Therefore, courts consistently refuse to let third-party practice resuscitate claims that expired before the third-party defendant sued the original plaintiff or vice versa. See Clem v. Delta Pharmaceuticals, 2016 WL 11784053 (W.D. Tenn. Nov. 9, 2016); County of Camden, 2008 WL 4934052 (D.N.J. Nov. 13, 2008); Coons v. A.F. Chapman, 2008 WL 11510792 (D. Mass. Sept. 24, 2008); Frankel v. Back, 37 F.R.D. 545, 547 (E.D. Pa. 1965). In other words, any claim existing between the plaintiff and the third-party defendant remains “subject to the applicable statute of limitations,” which “is neither tolled nor waived upon the third-party defendant’s entry into the action.” See Wright & Miller, 6 Fed. Prac. & Proc. Civ. Section 1459 (3d ed.).

For example, consider a situation where a plaintiff sues a defendant for negligence under a theory of vicarious liability based on acts performed by a third party alleged to be the defendant’s agent. The defendant could elect to join the purported agent as a third-party defendant. If so, the plaintiff and the third-party defendant then have the option of asserting direct claims against one another if such claims arise out of the same incident underlying the plaintiff’s claims against the defendant/third-party plaintiff. But the joinder of the third-party defendant does not pause, restart, or toll the applicable limitations period for any affirmative claim running between the plaintiff and the third-party defendant. Any such claim must be asserted within the statute of limitations regardless of when the defendant/third-party plaintiff adds the third-party defendant as a party to the main action. Thus, Rule 14(a) claims could already be time-barred on the date that the third-party defendant is joined in the main action.

Further, untimely Rule 14(a) claims are not salvaged by the relation-back doctrine.Rule 15(c) concerns “an amendment to a pleading” that relates back to “the date of the original pleading.” Therefore, “in determining relation back pursuant to Rule 15(c), the only relevant pleadings are the party’s original pleading and that same party’s amended pleading.” See Bond v. Rimmer, 2007 WL 2009810 (E.D. Cal. July 6, 2007). In other words, a new pleading may date back “only to the date of the pleading it supersedes, not the earlier date of any other party’s pleading.” See Korean Air Lines v. Port Authority of New York and New Jersey, 2012 WL 6967232 (E.D.N.Y. Aug. 1, 2012).

Accordingly, neither a plaintiff nor a third-party defendant may invoke the relation-back doctrine to resuscitate an untimely Rule 14(a) claim by arguing that its claim relates back to an earlier pleading filed by another party. See Zenith Petroleum v. Steerman, 2014 WL 12837832 (D. Kan. Oct. 7, 2014) (“The fact that the defendant subsequently chose to bring third-party claims against [a third-party defendant] does not provide a basis for the plaintiff to relate these claims back to the filing of its complaint” because “the plaintiff has no claims against that third-party defendant to which the relation back can attach”); Kansa Reinsurance v. Congressional Mortgage, 20 F.3d 1362 (5th Cir. 1994) (crossclaims could not relate back to plaintiff’s original complaint because crossclaims are original claims against a co-party, not an amendment to a previously filed pleading).

Practice Tips

Third-party practice under Rule 14(a) offers a valuable, but narrow, pathway for plaintiffs and third-party defendants to assert affirmative claims directly against one another when those claims arise from the same transaction or occurrence at issue in the main action. But Rule 14(a) claims always are permissive and remain fully subject to the applicable statute of limitations. Therefore, a plaintiff must timely assert any claim it may have against a third-party defendant regardless of whether the defendant/third-party plaintiff joins the third-party defendant in the main action. Likewise, the third-party defendant may not revive an untimely claim it may have against the original plaintiff merely because the defendant/third-party plaintiff adds it as a party to the main action. The third-party defendant always has the option of filing an independent action against the plaintiff and cannot use its joinder in the main action as a basis for asserting an affirmative claim against the plaintiff.

Thomas E. Sanchez is special counsel in Duane Morris' Pittsburgh office. He represents corporate clients from various industries in complex commercial litigation. Sanchez handles complex single-plaintiff and class actions from inception through trial and appeal, including in cases involving contract disputes, business torts, product liability, patent infringement, unfair competition, business dissolution matters, noncompete and nonsolicitation agreements, and oil and gas energy litigation.

Reprinted with permission from The Legal Intelligencer, © ALM Media Properties LLC. All rights reserved.