Adding parties in federal court: impleader in 14 days, required joinder, and intervention of right

Three rules bring someone new into a federal case, and they answer three different questions.

Rule 14 — the defendant wants to pass liability on to someone else. Rule 19 — someone is missing whose absence is a problem for the court. Rule 24 — someone outside the case wants in.

Each has its own timing, and one of them has a deadline measured in days.

Impleader: Rule 14

Rule 14(a)(1):

A defending party may, as third-party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court's leave if it files the third-party complaint more than 14 days after serving its original answer.

Two things.

The claim must be derivative. "Liable to it for all or part of the claim against it" — indemnity, contribution, subrogation. A third-party complaint asserting that the newcomer is liable to the plaintiff instead is not impleader, and it does not belong under Rule 14.

Fourteen days is the free window. File within 14 days of serving your answer and you need no permission. After that it is a motion, and leave is discretionary.

That deadline is short enough to be easy to miss, and it starts from serving the original answer — so it is running while you are still absorbing the case.

Rule 14(b) — plaintiffs too: "When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so." A plaintiff facing a counterclaim has the same tool on the same terms.

What the third-party defendant must and may do

Rule 14(a)(2) sets out four obligations and options for the person served:

(A) must assert any defense against the third-party plaintiff's claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff's claim; and (D) may also 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.

Subparagraph (C) is the one worth noticing. A third-party defendant brought in on an indemnity theory can defend the underlying claim directly, rather than relying on the defendant who impleaded them to do it properly. California builds the same idea into its "special answer" under CCP 428.70; the federal rule gives it without a separate document.

Rule 14(a)(3) — the plaintiff's response: the plaintiff "may 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." The third-party defendant then owes Rule 12 defenses and Rule 13(a) counterclaims in turn.

Rule 14(a)(4): "Any party may move to strike the third-party claim, to sever it, or to try it separately." Impleader that would complicate the trial is manageable without excluding the claim altogether.

Rule 14(a)(5) — chains: a third-party defendant may itself proceed under the rule "against a nonparty who is or may be liable to the third-party defendant for all or part of any claim against it."

Rule 14(a)(6) handles in rem third-party complaints in admiralty, where "summons" includes the warrant of arrest.

Required parties: Rule 19

Rule 19 asks a different question — not whether a party wants someone in, but whether the case can properly proceed without them.

Rule 19(a)(1) — who is required. A person subject to service of process whose joinder will not deprive the court of subject-matter jurisdiction must be joined if:

(A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.

Note the two threshold conditions in the opening words. Someone who cannot be served, or whose joinder would destroy diversity, is not a "required party" under subdivision (a) at all — the analysis moves to subdivision (b).

Rule 19(a)(2) — the court acts: "If a person has not been joined as required, the court must order that the person be made a party." And "a person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff."

Rule 19(a)(3) — venue: "If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party."

Rule 19(b) — when joinder is not feasible. The court "must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed," considering:

(1) the extent to which a judgment rendered in the person's absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person's absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder.

Factor (4) is the one that most often saves a case. Dismissal for nonjoinder leaving the plaintiff with nowhere to go weighs heavily against it.

Rule 19(c) — pleading nonjoinder. When asserting a claim for relief, a party must state:

(1) the name, if known, of any person who is required to be joined if feasible but is not joined; and (2) the reasons for not joining that person.

An affirmative pleading obligation on the claimant, and one that is widely overlooked.

Rule 19(d): the rule is subject to Rule 23, so class actions are governed by the class rules instead.

And the defense is preserved late. Rule 12(h)(2) allows failure to join a person required by Rule 19(b) to be raised in any Rule 7(a) pleading, by a Rule 12(c) motion, or at trial.

Intervention: Rule 24

Rule 24(a) — of right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

Four elements in paragraph (2), and the last is a proviso rather than an element the movant must disprove at length: timeliness, an interest, practical impairment, and inadequate representation.

The language of (a)(2) deliberately tracks Rule 19(a)(1)(B)(i). The same situation that makes someone a required party often gives them a right to intervene — the difference is who is asking.

Rule 24(b) — permissive. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.

Rule 24(b)(2) — governments: the court may permit a federal or state governmental officer or agency to intervene where a party's claim or defense is based on a statute or executive order the officer or agency administers, or on any regulation, order, requirement or agreement issued under it.

Rule 24(b)(3) — the discretion factor: "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights."

Rule 24(c) — what the motion must contain. The motion "must be served on the parties as provided in Rule 5," must "state the grounds for intervention," and must "be accompanied by a pleading that sets out the claim or defense for which intervention is sought."

That last requirement is a common defect. A motion to intervene without the proposed pleading attached is incomplete on its face — the same trap California sets in CCP 473(b) and Oregon in ORCP 71 B(1) for other motions.

Timeliness governs both routes. Rule 24(a) and (b) both open with "On timely motion," and it is the element most intervention motions turn on.

Which rule, and when

How the federal rules compare

A short checklist

Impleading

1. Diary 14 days from serving your answer. After that you need leave.
2. Check the claim is derivative — that the third party may be liable to you for the claim against you.
3. Expect a motion to strike, sever or try separately. Rule 14(a)(4) makes those available to any party.

If you are impleaded

1. Assert your Rule 12 defenses and any compulsory counterclaim. Both are mandatory under Rule 14(a)(2).
2. Consider defending the underlying claim directly. Rule 14(a)(2)(C) lets you assert the defendant's defenses against the plaintiff.

Joinder

1. Name unjoined required parties in your pleading, with reasons. Rule 19(c) requires it.
2. If joinder would destroy jurisdiction or venue, go straight to the Rule 19(b) factors — and lead with whether the plaintiff has an adequate alternative remedy.
3. Remember the defense survives. Rule 12(h)(2) preserves failure to join a Rule 19(b) party through trial.

Intervening

1. Move early. Timeliness governs both routes and defeats more motions than any other element.
2. Attach the proposed pleading. Rule 24(c) requires it, along with a statement of grounds and Rule 5 service.
3. If representation is arguably adequate, plead permissive intervention in the alternative — a common question is enough under Rule 24(b)(1)(B).

Where these rules live

• FRCP 12 — Defenses and objections
• FRCP 13 — Counterclaim and crossclaim
• FRCP 14 — Third-party practice
• FRCP 19 — Required joinder of parties
• FRCP 20 — Permissive joinder of parties
• FRCP 21 — Misjoinder and nonjoinder of parties
• FRCP 23 — Class actions
• FRCP 24 — Intervention
• FRCP 42 — Consolidation; separate trials

This page explains what the rules say. It isn't legal advice, and the standards for timeliness and adequacy of representation come from case law this site doesn't cover.