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Massachusetts Civil Procedure Rule 14: Third-Party Practice

[Disclaimer]

(a) When Defendant May Bring in Third Party. At any time after commencement of the action a defending party, as a third-party plaintiff, may (except in cases of registration and confirmation in the Land Court brought pursuant to G.L. c. 185) cause a summons and complaint to be served upon a person who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party complaint not later than 20 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the plaintiff thereupon shall assert his defenses as provided in Rule 12 and his counterclaims as provided in Rule 13. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under this rule against any person who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.

(b) When Plaintiff May Bring in Third Party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under this rule would entitle a defendant to do so.

Amended Dec. 13, 1981, effective Jan. 1, 1982.

Reporter’s Notes
Rule 14 largely tracks Federal Rule 14; it also closely approximates G.L. c. 231, § 4B as amended, which was deliberately patterned upon that version of Federal Rule 14 extant at the time the statute was passed (1964).

Rule 14 allows a defendant to implead a third party defendant without leave of court if the third party complaint is served within 20 days after service of the original answer; thereafter leave of court is required. This changes prior law which allowed 90 days after service of the answer for impleader without leave of court. See Mass. G.L. c. 231 § 4B as amended in 1973.

In most cases, the defendant/third-party plaintiff will be fully aware of potential third-party defendants well before the deadline. He will therefore file his third-party pleadings promptly. Admittedly, sometimes even diligent preparation will not disclose to the original defendant’s attorney the possibility of a third-party action until the deadline has passed. In such cases, the court will grant leave almost as of course. The purpose behind the restriction is the belief that unbridled third-party practice offers an unscrupulous attorney an opportunity to delay trial; by commencing a third- party suit, he can hold up the proceedings for the length of time necessary to permit the new third-party defendant to answer and otherwise defend. Under the Rule, however, the court will have an opportunity to examine any late-blooming third-party claims. It can (and should) deny leave when it is convinced that the third-party claim is not bona fide, or is interposed for the purpose of delay.

The amendment to G.L. c. 231 § 4B struck from the statute the words “not a party to the action”, which therefore do not appear in Rule 14(a). This eliminates a doubt which existed prior to the amendment, viz., whether a third-party complaint could be served only on a non-party. The deletion emphasizes that the purpose of Rule 14 is to encourage the joinder in a law suit of all parties who may reasonably be said to have an interest (in the legal sense) in the final disposition of the litigation. The combined effect of Rule 14 and Rule 13 (which is explicitly referred to in the body of Rule 14(a)) will be to ensure a single piece of litigation where previously two or more had been necessary.

Rule 14 frankly aims at telescoping litigation. It will therefore find appropriate use in situations of indemnity, and in situations testing the possibility of contribution among joint tortfeasors (G.L. c. 231B §§ 1-4), although these latter will more generally be resolved by cross-claims under Rule 13. Because Rule 14 expressly allows what is in effect anticipatory litigation, a third-party defendant may not and should not object on the grounds that the defendant’s liability has not yet been established.

It should be noted that Rule 14, like Federal Rule 14 and G.L. c. 231 § 4B as amended, does not permit the defendant to “tender” an additional defendant to the plaintiff. If the plaintiff has not chosen to sue the prospective third-party defendant, the original defendant may bring in the third- party defendant only if the third-party defendant “is or may be liable to” the original defendant. If the prospective third- party defendant is also potentially directly liable to the plaintiff, then the plaintiff, as the rule explicitly states, “may assert any claim against the third-party defendant;” but he need not do so. The rule already requires responses from the third- party defendant; language has been inserted to extend this requirement to the plaintiff in the event that the third-party defendant asserts any claim against him. It is not clear why such language does not appear in the Federal Rule (although the requirement has been assumed, 3 Moore, Federal Practice 614). The insertion will remove all doubt.