How to File an Impleader

Four Parts:Responding to the Initial LawsuitFiling the ImpleaderDefending Against the Initial LawsuitActing as a Third-Party-Plaintiff

In some circumstances, you might be served with a lawsuit requesting you to pay damages you do not think you are responsible for. If this happens, you might have to file a third party claim in order to get another defendant involved (one who should ultimately be responsible for some or all of the damages). These third party claims, called impleader actions, allow you to bring in another party as a defendant. Once you bring in the third party, you will become a third-party-plaintiff and the new defendant will become a third-party-defendant. At this point, you will, in essence, have two lawsuits going on at the same time. You will be required to defend against the initial lawsuit while at the same time conducting your own action against the third-party-defendant.

Part 1
Responding to the Initial Lawsuit

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    Evaluate the complaint. The complaint is the plaintiff's legal document that starts the lawsuit against you. Among other things, the plaintiff's complaint will contain a statement of facts, an alleged legal violation, a cause of action, and a requested remedy. This document will be served on you. As soon as this document is served, you need to read it carefully. It will explain why you are being sued. In addition, it is important to read the complaint so you can get an idea of how you are going to respond.
    • For example, if you plan on filing a response, you will have to admit or deny every single allegation the plaintiff makes in his or her complaint. Therefore, it is important to evaluate the complaint carefully so you know what to deny and what you can admit.[1]
    • Importantly, the complaint will offer clues as to whether you should bring in a third-party-defendant through an impleader action. For example, assume the plaintiff is suing you for damages sustained when you rear ended his or her car. However, the car behind you rear ended your car, which is what caused you to hit the plaintiff's vehicle. If these sort of facts are included in the complaint, you know an impleader action might be warranted.
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    Make a note of deadlines. Along with the complaint, you will also be served with a summons. The summons is a form that tells you, the defendant, that you are being sued. In addition, the summons will tell you how much time you have to respond to the lawsuit. In general, you will have around 30 days to draft and file initial answers and motions.
    • Find this deadline in the summons and make a note of it. Make sure you understand the day your response is due, at what time it is due, and where you must file it. If you are late filing an answer, you may forfeit your rights and a default judgment might be entered against you.
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    Hire a lawyer. As soon as you are served with a lawsuit, you need to hire a lawyer. This is especially important if you think a third party should be responsible for at least some of the damages requested in the complaint. Filing third party actions and acting as both a plaintiff and a defendant in related actions can be complicated. Therefore, you need to contact your state bar association's lawyer referral service as soon as possible. After answering a few questions, you will be put in contact with various qualified lawyers in your area.
    • When you meet with lawyer candidates, ask about their comfort level filing impleader actions and handling cases as a defendant and plaintiff.
    • Be sure you ask about fees. Because you will be, in essence, taking part in two actions at once, hourly fees might run very high. See if your lawyer will work with you on coming up with an acceptable arrangement.
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    Draft your answer. Before you consider filing an impleader action, you need to respond to the initial lawsuit in which you are the defendant. Your answer is a formal written response to the plaintiff's complaint. You will respond to each allegation by admitting or denying their truth. In addition, you will need to lay out any third party claims you may have. Your answer should contain at least the following:[2]
    • Responses to allegations, which should be numbered to correspond with the complaint. For example, paragraph three of your answer should respond to paragraph three of the complaint.
    • Defenses, which are claims that the plaintiff cannot win the lawsuit even if they are correct in all of their allegations. For example, if the plaintiff's action is barred by the applicable statute of limitations, you will want to bring that up in your answer.
    • Third party claims. If you plan on filing an impleader action, you should make your intentions known in your answer to the initial lawsuit. Within your answer, allege that a third party is responsible for the relief sought against you. For example, if plaintiff alleges you are responsible for his or her injuries, but you claim it was not your fault and that, in fact, it was someone else's fault, that third party should be brought into the lawsuit.
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    Serve the plaintiff. Once your answer is complete, a copy will need to be served on the plaintiff. To serve the plaintiff with your answer, someone unrelated to the case must personally deliver or mail a copy to them. Once service is complete, you will need to sign an affirmation of service and attach it to your original answer. An affirmation of service requires you to state, under oath, that you have properly served the plaintiff.[3]
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    File your answer. Once your answer has been served on the plaintiff, your original answer and your affirmation of service need to be filed with the court. You can file your paperwork by taking it to the courthouse where the plaintiff's action was filed. You will give your paperwork to the clerk of courts, who will stamp everything as "filed." Be sure you ask the clerk whether any courtesy copies need to be furnished. If additional copies of your answer are required, they will need to be filed at the same time as your original.[4]

Part 2
Filing the Impleader

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    Analyze your ability to bring in a third-party-defendant. If you want to file an impleader action against a third party, you need to meet certain criteria. In order to implead a third party, you need to be able to honestly allege that the third party is at least partially responsible for the damages in the initial lawsuit against you. Theories like indemnity (i.e., a third party promised to pay for your damages), subrogation (i.e., one party should stand in the place of another), and contributory negligence (i.e., a third party contributed to the initial plaintiff's injuries) should be part of your claim.
    • However, if your claim is that a third party should be responsible for all of plaintiff's damages (as opposed to just part of them), you cannot implead that third party. Instead, you must bring this issue up as an affirmative defense in your answer.[5]
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    Draft a complaint and summons. If an impleader action is warranted, you will need to proceed as if you were filing a lawsuit against the third-party-defendant. Therefore, you will need to draft a complaint. In addition, you will need to attach a third-party summons to your complaint. The summons will notify the third-party-defendant that they are being sued and will lay out how he or she can respond. Your complaint will need to include at least the following: [6]
    • A statement of facts, which will need to include a description of how the third-party-defendant is involved in the action between you and the plaintiff.
    • A cause of action, which might be something like contributory negligence, indemnity, or subrogation. This needs to be some recognized legal standard you believe makes the third-party-defendant partially responsible for the claims the plaintiff is making against you.
    • A prayer for relief, which is a statement asking the court to find the third-party-defendant partially responsible for any damages levied against you.
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    File your impleader documents in a timely manner. An impleader action must be filed within 14 days of you serving your answer on the plaintiff. To file an impleader action, take your completed third party complaint and summons to the court where the plaintiff filed the original action. The clerk of courts will take your documents and ensure they are filed with the original case against you. Because you are filing a complaint, you may be required to pay a filing fee. This fee is usually around $350. If you cannot afford it, you may be able to ask the court to waive the fee.[7]
    • If you fail to file your impleader action within the 14 day window, you will have to ask the court's permission (i.e., file a motion) to file the impleader late.[8] The court will consider the following factors when making its decision:[9]
      • Whether you deliberately delayed filing the impleader action
      • Whether impleading would delay or complicate the trial
      • Whether impleading would prejudice any of the other parties
      • Whether your third party complaint states a valid claim
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    Serve the third-party-defendant. Once your impleader action has been filed, you will need to serve the third-party-defendant with a copy. To effectively serve the third-party-defendant, you need to have someone 18 or older who is unrelated to the case personally hand or leave a copy with the third-party-defendant. After service is completed, the server will have to complete a return of service form. You will then have to file that form with the court.[10]

Part 3
Defending Against the Initial Lawsuit

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    Take part in discovery. Even though you are a third-party-plaintiff after filing your impleader, you are still responsible for defending against the initial lawsuit filed against you. In your capacity as the defendant, you will need to take part in discovery in order to prepare for trial against the plaintiff. During discovery you will be able to talk with witnesses, analyze documents, see how strong your case is, and determine what the plaintiff is going to say at trial. In order to effectively take part in discovery, you will be able to use the following tools:[11]
    • Informal discovery, which will include conducting interviews, gathering publicly available documents, and taking photographs.
    • Depositions, which are in person interviews with witnesses and parties. These interviews are conducted under oath and answers can be used in court.
    • Interrogatories, which are written questions posed to witnesses and parties. The answers are given under oath and can be used in court.
    • Requests for documents, which are formal requests for documents not otherwise publicly available. For example, you might ask the plaintiff for emails, text messages, and phone bills.
    • Requests for admissions, which are written requests asking the plaintiff to admit or deny the existence of certain facts and/or documents.
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    File a motion for summary judgment. As soon as discovery concludes, you should consider filing a motion for summary judgment. This motion asks the court to end the litigation and rule in your favor because there is no genuine dispute of material facts and you are entitled to judgment as a matter of law. In other words, you will succeed if the court decides that, even if everything plaintiff said was true, he or she still couldn't win the case.
    • Judges may grant you partial summary judgment by ruling in your favor on certain issues but leaving others for trial.[12]
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    Try to settle the case. If you are not successful at the summary judgment phase of litigation and your case continues, you might try to settle with the plaintiff. If you settle, your case will not go to trial and you will save yourself money and time. Two common settlement tactics include negotiation and mediation.
    • During settlement negotiations, you and the plaintiff will discuss the case and try to find common ground. If an agreement can be reached, it should be reduced to writing so you can present it to the judge.
    • If settlement negotiations stall, you might consider taking part in mediation. During mediation, you and the plaintiff will meet with a neutral mediator in an attempt to reach a voluntary settlement. Mediators are experienced lawyers who direct discussions toward finding common ground, exploring underlying interests, and considering unique resolutions.[13]
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    Attend final pretrial hearings. If a settlement cannot be reached, you and the plaintiff will attend one final pretrial hearing before trial begins. During this pretrial hearing, the judge will ask both parties about the issues that need to be resolved at trial. Based on the information provided, the judge will create a pretrial order and schedule. If an issue is not scheduled to be heard at trial, you will not be able to bring it up. Therefore, it is incredibly important that you raise every possible issue during this pretrial conference so the judge schedules time for it during the trial.[14]
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    Go to trial. At trial, the plaintiff will attempt to prove that he or she is entitled to the relief sought, while you will try to prove the opposite. After a jury is selected, you will have an opportunity to make an opening statement, which should tell your version of the story that led to the trial. Once the plaintiff presents his or her case, you will have an opportunity to present yours. You will be able to call witnesses and introduce physical evidence that you believe proves you're not liable. After both parties have presented their case, you and the plaintiff will have an opportunity to make closing statements. Your closing statements should summarize the evidence and explain why you should be found not liable.
    • Once the court deliberates, it will enter a verdict in open court.[15] If you lose, you will use this information in your capacity as a third-party-plaintiff. In this scenario, you will tell the judge that, even though you lost, a certain portion of the damages award should be paid by the third-party-defendant.

Part 4
Acting as a Third-Party-Plaintiff

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    Await the third-party-defendant’s answer. While you are defending against the initial suit against you, you will also be acting as a third-party-plaintiff in your impleader action. After you file the third-party complaint and summons, the third-party-defendant will need to respond. The third-party-defendant can respond by asserting defenses and counterclaims against you and/or the plaintiff. The third-party-defendant's response will be served on you.[16]
    • Read the third-party-defendant's response carefully so you understand their defenses and claims to your impleader action. Doing this will help you respond and act accordingly moving forward.
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    Make appropriate motions. At this point in the impleader action, you, the third-party-defendant, and the plaintiff, will have important decisions to make regarding how the litigation will proceed. Any party can move to have the third party claims stricken or tried separately.[17] If none of these motions are filed, the third party claims will be tried together with the original lawsuit. To file one of these motions, you will need to draft a legal brief to the court explaining why a certain action should be taken.
    • You will not file a motion to strike because the effect of this motion would be to disallow your impleader action. A motion to strike asks the court to remove redundant, immaterial, or scandalous pleadings from the litigation.[18] A motion to strike, however, may be filed by the plaintiff or third-party-defendant.
    • If you file a motion to separate, you will be asking the court to hear each trial separately. If awarded, you will have a trial as a defendant and another trial as a third-party-plaintiff. The court might grant this motion when the two claims may be prejudicial if tried together or where the issues are so unrelated it would be easier to try the claims separately.
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    Proceed accordingly. If no motions are filed, you, the plaintiff, and the third-party-defendant will go through the litigation process together. If this happens, discovery will be conducted all at once, motions for summary judgment will be filed between and among parties, and pretrial hearings will involve everyone.
    • If a motion to strike is successful, your third party claim will be denied and you will be responsible for any damages awarded to the plaintiff during trial.
    • If a motion to try separately is successful, you will go through the litigation steps twice (once as a defendant and once as a third-party-plaintiff). After you litigate the case as a defendant, you will need to conduct discovery, defend against a motion for summary judgment, and go to trial as a third-party-plaintiff. If you are successful in your trial against the third-party-defendant, he or she will be responsible for paying part of the award levied against you in the first trial (where you were the defendant).

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Categories: Civil Litigation