6.9 - 364 JOINDER OF PARTIES AND CLAIMS 6.9 Ch 6...

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364 JOINDER OF PARTIES AND CLAIMS Ch. 6 § 6.9 Third-Party Practice (Impleader) Impleader, or third-party practice, is the procedural device enabling the defendant in a lawsuit to bring into the action an additional party who may be liable to the defendant for all or part of any damages the defendant ultimately may owe the original plaintiff. 346 This additional party is known as a third-party defendant, and the original defendant who brings an impleader claim is called the third-party plaintiff. Unlike counterclaim procedure, impleader is entirely optional; the defendant may assert the claim against the third party in a completely separate action. 347 The historical antecedents of impleader are found in the practice of vouching to warranty at common law. That procedure permitted a defendant sued for the recovery of property to vouch in a third party who had given a warranty to title to the defendant. Later developments broadened the scope of impleader to other situations as well. 348 As is true of the theory underlying counterclaim provisions, 349 impleader is intended to avoid circuity of action and to dispose of the entire subject matter arising from one set of facts in one action, thus administering * * * justice expeditiously and economically. 350 The availability of impleader saves the time and cost of duplicating evidence in two proceedings, avoids inconsistent results on related claims based on identical or similar evidence, and eliminates the serious prejudice to the original defendant that might result from a time lag between the plaintiff s judgment against him and a judgment in the defendant s favor against the third-party defendant. 351 An illustration of how impleader fulfills these purposes is provided by the case of a plaintiff suing a railroad for injuries sustained when the plaintiff was hit by a mail pouch thrown from the defendant s moving train. A mail clerk employed by the United States government was responsible for any judgment that might be entered against the railroad on the plaintiff s claim. It would be senseless to require a separate action by the defendant railroad clerk against the third-party defendant under these circumstances 344 See, e.g., Claude A. Hinton, Jr., Inc. v. Institutional Investors Trust, 133 Ga.App. 364, 211 S.E.2d 169 (1974). 345 Lenske v. Knutsen, 410 F.2d 583, 585 86 (9th Cir.1969). 346 Impleader also may be used by a plaintiff who is facing a counterclaim. Fed.Civ.Proc. Rule 14(b); Va.Sup.Ct. Rules, Rule 3:10(b); Wis.Stat.Ann. 803.05(2). See Kaiser Aluminum & Chem. Sales, Inc. v. Ralston Steel Corp., 25 F.R.D. 23 (N.D.Ill.1959); New York, New Haven & Hartford R. Co. v. U.S., 21 F.R.D. 328 (S.D.N.Y.1958); Welch v. Crown-Zellerbach Corp., 365 So.2d 586 (La.App.1978). 347 See DeVore Brokerage Co. v. Goodyear Tire & Rubber Co., 308 F.Supp. 279 (M.D.Tenn.1969); Union Paving Co. v. Thomas, 9 F.R.D. 612 (E.D.Pa.1949).
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  • Spring '08
  • Bracha
  • Law, Complaint, Federal Rules of Civil Procedure, third-party defendant, Impleader

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