Now it is not residence which constitutes a man a citizen; for in this sojourners and slaves are upon an equality with him; nor will it be sufficient for this purpose, that you have the privilege of the laws, and may plead or be impleaded
, for this all those of different nations, between whom there is a mutual agreement for that purpose, are allowed; although it very often happens, that sojourners have not a perfect right therein without the protection of a patron, to whom they are obliged to apply, which shows that their share in the community is incomplete.
BADIN -- The water thieves who might be influential would be brought to the book and would have to face legal impleads
at any cost.
Next I "suppose[d] that in response to P's original complaint against D1 alone, D1 impleads D2 as a third-party defendant under Rule 14(a) of the Federal Rules of Civil Procedure." Id.
(57.) The conceptions disagree if B not only impleads AB but also counterclaims against A to establish A's proportional fault.
Professor Hartnett notes that both the present [section] 1367 and the ALI's proposed substitute "are designed to embody the Kroger rule's denial of supplemental jurisdiction over claims by plaintiffs against third-party defendants impleaded by defendants" (2)--that is, impleaded by what might be called the "original defendant" against whom the plaintiff filed the complaint commencing a civil action (based solely on diversity jurisdiction) in a federal district court.
Kroger did not involve a plaintiff whose claim against an already impleaded third-party defendant was asserted in reaction to that third-party defendant's prior assertion of a claim directly against the plaintiff under Rule 14(a).
As a procedural matter it is clear that a plaintiff thus placed in a defensive posture has the right to implead new parties as third-party defendants who may be liable to indemnify the plaintiff for the liability asserted against the plaintiff.
Plaintiff A sues defendant B, who impleads third-party defendant AA.
For instance, given the actual alignment of parties in the Kroger case, where A sues B and B impleads AB (a cocitizen of both A and B), AB's assertion of a claim against A would allow A to invoke supplemental jurisdiction over claims against additional nondiverse defendants joined by A's amendment of the complaint.
Professor Hartnett agrees with me that what I called the robust conception of the Kroger rule, barring supplemental jurisdiction over any claim (even one defensive in nature) by a plaintiff against an impleaded third-party defendant, should not be codified in a revised [section] 1367.
The first of Professor Hartnett's technical objections results from a semantic misunderstanding of the term "impleaded" as used in my proposed amendment, which refers to a supplemental claim "asserted by an original plaintiff against a third party impleaded by an original defendant." (6) He apparently construes "impleaded" to mean only the joinder of a third party under Rule 14, for purposes of indemnification or contribution, (7) and not the joinder of a third party under Rule 13(h) as an additional party to a cross-claim or counterclaim.
(12) He points out that the plaintiff's supplemental claim against the nondiverse third-party defendant is likely to be related to both the plaintiff's freestanding claim against the diverse defendant named in the complaint, and to that defendant's freestanding claim against the diverse third-party defendant impleaded by that defendant.