In fact, I am hard pressed to think of any substantial differences. But the lack of one word contained in FRCP 14 -- "original" -- but omitted from the parallel NC Rule made all the difference in the NC Business Court's Opinion in APAtlantic, Inc. v. Crescent University City Ventures, LLC, 2017 NCBC 91. The case had to do with Plaintiff AP filing a third party complaint against multiple Defendants after Defendant Crescent University amended its Answer and counterclaim.

A party sued for patent infringement may seek to shift some or all of its liability through an indemnification claim. While a patent infringement defendant may seek to implead an indemnitor under Rule 14 of the Federal Rules of Civil Procedure, a recent Eastern District of Kentucky decision is a reminder that third-party complaints are limited to claims seeking to shift liability for the underlying patent infringement claim. Linda’s Leather, LLC v. Zambrano, No. 5:21-CV-046-CHB, 2022 WL 100216 (E.D. Ky. Jan. 10, 2022).

A Puerto Rico district court dismissed a third-party action by defendant-policyholder Puma Energy Caribe LLC against the reinsurers of an insurance policy issued by plaintiff Integrand Assurance Co. Puma claimed that the reinsurers breached the reinsurance agreements with Integrand, prejudiced Puma’s rights as a third-party beneficiary of those agreements, and negligently handled reinsurance claims that Integrand submitted in connection with a claim Puma had made under the Integrand policy. The reinsurers sought dismissal based on lack of privity, lack of standing, arbitration clauses in the reinsurance treaties with Integrand, and on the ground that Puma improperly sought to implead them under Federal Rule of Civil Procedure 14(a), which allows a party to implead a nonparty “who is or may be liable to it for all or part of the claim against it.”While recognizing the reinsurers’ arguments were “powerful,” the court dismissed Puma’s third-party claims on procedural grounds. Because Puma was not seeking “indemnity” from the reinsurers, the court found that Rule 14(a) was not the proper vehicle for obtaining the relief Puma had requested.

A Puerto Rico district court dismissed a third-party action by defendant-policyholder Puma Energy Caribe LLC against the reinsurers of an insurance policy issued by plaintiff Integrand Assurance Co. Puma claimed that the reinsurers breached the reinsurance agreements with Integrand, prejudiced Puma’s rights as a third-party beneficiary of those agreements, and negligently handled reinsurance claims that Integrand submitted in connection with a claim Puma had made under the Integrand policy. The reinsurers sought dismissal based on lack of privity, lack of standing, arbitration clauses in the reinsurance treaties with Integrand, and on the ground that Puma improperly sought to implead them under Federal Rule of Civil Procedure 14(a), which allows a party to implead a nonparty “who is or may be liable to it for all or part of the claim against it.”While recognizing the reinsurers’ arguments were “powerful,” the court dismissed Puma’s third-party claims on procedural grounds. Because Puma was not seeking “indemnity” from the reinsurers, the court found that Rule 14(a) was not the proper vehicle for obtaining the relief Puma had requested.

These included that there was no privity of contract between the policyholder and the reinsurers, that the policyholder did not have standing to assert third-party beneficiary rights or the rights of the policyholder, and that any disputes under the reinsurance agreements must be arbitrated. The court accepted these arguments and also found that the policyholder erroneously sought to implead the reinsurers under Federal Rule of Civil Procedure 14(a).As the court noted, the policyholder was not seeking indemnity from the reinsurers for any claim asserted by the cedent against the policyholder. Rule 14(a) does not allow a party to assert its own claims.

According to the “counterclaim,” Briere breached an agreement to obtain CrossFit certification and teach classes at Mustapha’s Chelmsford sports facility, and falsely represented himself as CrossFit certified on Mustapha’s Facebook page. Briere then filed a motion for judgment on the pleadings, contending that Mustapha’s impleader attempt was improper under FED. R. CIV. P. 14, which governs how a defendant may join a third party—“who is or may be liable . . . for all or part of the claim”—to the lawsuit. Shortly after Briere filed the motion, Mustapha filed a motion to amend his “counterclaims” against Briere to add a charge of contributory trademark infringement, alleging that “much of the complaint against Defendants is the result of [Briere’s] actions.”Judge Saylor first tackled Briere’s motion for judgment on the pleadings.

No court had held the class waiver to be invalid, and so the “blow provision” did not operate to invalidate the rest of the agreement. The appellant also sought to argue that arbitration of the parties’ dispute would abridge its “right” to file a third-party complaint under Federal Rule of Civil Procedure 14(a). However, because the appellant failed to raise that argument in the trial court, the panel refused to consider it.

No court had held the class waiver to be invalid, and so the “blow provision” did not operate to invalidate the rest of the agreement. The appellant also sought to argue that arbitration of the parties’ dispute would abridge its “right” to file a third-party complaint under Federal Rule of Civil Procedure 14(a). However, because the appellant failed to raise that argument in the trial court, the panel refused to consider it.

In addition, by providing the father’s number as her secondary contact number and failing to notify it that she could no longer be reached at the number, the daughter, according to the bank, agreed to indemnify Credit One for any fees and costs, including attorney fees incurred as a result of attempting to call her at that number. After finding that Credit One had shown good cause to modify a scheduling order which had a bar date for bringing in new parties, the court found that it was proper to join the daughter as a third party defendant under Fed. R. Civ. P. 14(a)(1). Basically, the court found that the daughter’s liability to Credit One is dependent on the outcome of the father’s TCPA claims against Credit One, and specifically, that if Credit One is held liable for the father’s TCPA claims, any liability would be the direct and proximate result of the daughter giving his number to Credit One as a secondary contact number and her subsequent default on the Cardholder Agreement.

LSR removed the action, and the Gillelands moved to remand, arguing that LSR was a “third-party defendant” which was not entitled to remove.Notwithstanding its agreement that “third-party defendants” cannot remove, the district court disagreed with the Gillelands that LSR was in fact a “third-party defendant” under Fed. R. Civ. P. 14, which defines a third-party defendant as an impleader defendant, not a defendant against whom entirely new claims are asserted. Concluding that LSR was in fact a counterclaim defendant, the court then went on to determine whether it could remove under 28 U.S.C. § 1441 or CAFA.Citing the majority rule, the court held that § 1441 does not allow removal by a counterclaim defendant.