Arkansas State Court Third-Party Complaint (Impleader)

IN THE CIRCUIT COURT OF [____________] COUNTY, ARKANSAS

[____________] DIVISION

Case No.: [____________]

DEFENDANT/THIRD-PARTY PLAINTIFF'S THIRD-PARTY COMPLAINT

Filed Pursuant to Ark. R. Civ. P. 14 and Ark. Code Ann. § 16-61-207

COMES the Defendant, [DEFENDANT / THIRD-PARTY PLAINTIFF NAME] ("Defendant" or "Third-Party Plaintiff"), by and through undersigned counsel, and pursuant to Rule 14 of the Arkansas Rules of Civil Procedure (and, as to tort contribution, Ark. Code Ann. § 16-61-207), files this Third-Party Complaint against [THIRD-PARTY DEFENDANT NAME] ("Third-Party Defendant"), a person not a party to the original action who is or may be liable to the Defendant/Third-Party Plaintiff for all or part of the Plaintiff's claim against the Defendant, and states as follows:

I. NATURE OF THE THIRD-PARTY ACTION AND COMPLIANCE WITH RULE 14

1. Under Ark. R. Civ. P. 14(a), at any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim against the third-party plaintiff.

2. The third-party plaintiff need not obtain leave of court to make the service if the third-party complaint is filed not later than ten (10) days after the Defendant serves its original answer. Otherwise, the third-party plaintiff must obtain leave on motion upon notice to all parties to the action. Ark. R. Civ. P. 14(a).

3. For a claim of contribution in a tort action, Ark. Code Ann. § 16-61-207 separately provides that, before answering, a defendant seeking contribution may move ex parte, or, after answering, on notice to the plaintiff, for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party who is or may be liable as a joint tortfeasor for all or part of the plaintiff's claim.

4. This Third-Party Complaint is filed (select one):
   - ☐ within ten (10) days after service of the Defendant's original answer and therefore as of right, without leave of court, under Ark. R. Civ. P. 14(a); or
   - ☐ more than ten (10) days after service of the Defendant's original answer and, accordingly, by and pursuant to the leave of court granted on [__/__/____] upon the Defendant's motion under Ark. R. Civ. P. 14(a) and/or Ark. Code Ann. § 16-61-207.

5. The liability asserted herein is derivative of, or dependent upon, the outcome of the Plaintiff's claim against the Defendant. The Third-Party Defendant is or may be liable to the Defendant/Third-Party Plaintiff for all or part of any judgment that the Plaintiff may recover against the Defendant, on theories of indemnity, contribution, subrogation, breach of warranty, and/or "liable over," as set forth below.

II. PARTIES

6. The Plaintiff, [PLAINTIFF NAME], is the plaintiff in this action.

7. The Defendant/Third-Party Plaintiff, [DEFENDANT / THIRD-PARTY PLAINTIFF NAME], is the defendant in this action and is, and at all relevant times was, a [corporation / limited liability company / individual] organized under the laws of [State] with its principal place of business / residence in [____________] County, Arkansas.

8. The Third-Party Defendant, [THIRD-PARTY DEFENDANT NAME], is not a party to the original action and is, and at all relevant times was, a [corporation / limited liability company / individual] organized under the laws of [State] with its principal place of business / residence in [____________].

III. JURISDICTION AND VENUE

9. This Court has subject-matter jurisdiction over this Third-Party Complaint. A third-party claim under Ark. R. Civ. P. 14 is ancillary to the main action and is properly heard in this action together with the Plaintiff's claim against the Defendant.

10. Venue is proper in this County under Ark. Code Ann. § 16-60-101 et seq. and is appropriate as ancillary to the original action already pending in this Court.

11. This Court has personal jurisdiction over the Third-Party Defendant because the Third-Party Defendant [resides in / is domiciled in / transacts business in / committed acts giving rise to liability in] the State of Arkansas, and/or is subject to service of process under Ark. R. Civ. P. 4.

IV. SUMMARY OF THE UNDERLYING ACTION

12. On or about [__/__/____], the Plaintiff commenced this action against the Defendant by filing a Complaint asserting claims for [describe the Plaintiff's claims — e.g., breach of contract, negligence, personal injury, property damage]. [____________]

13. In the Complaint, the Plaintiff alleges that [summarize the Plaintiff's material allegations against the Defendant]. [____________]

14. The Plaintiff seeks damages against the Defendant in an amount of $[____________], together with interest, costs, attorney's fees, and other relief.

15. The Defendant denies liability to the Plaintiff and has asserted defenses to the Plaintiff's claims. The Defendant files this Third-Party Complaint without waiving, and expressly reserving, all such defenses. To the extent the Defendant is found liable to the Plaintiff — which liability is expressly denied — such liability is attributable, in whole or in part, to the acts, omissions, or obligations of the Third-Party Defendant.

V. FACTUAL ALLEGATIONS

16. [State the factual background giving rise to the Third-Party Defendant's liability over to the Defendant, in numbered paragraphs.] [____________]

17. On or about [__/__/____], [____________].

18. [____________].

19. [____________].

20. The injuries, losses, or damages for which the Plaintiff seeks recovery from the Defendant were caused, in whole or in part, by the acts, omissions, breach, or default of the Third-Party Defendant. [____________]

VI. THIRD-PARTY CLAIMS FOR RELIEF

The Defendant/Third-Party Plaintiff asserts the following third-party claim(s):

☐ Count I — Contractual Indemnity
☐ Count II — Equitable / Implied Indemnity
☐ Count III — Contribution
☐ Count IV — Subrogation
☐ Count V — Breach of Warranty
☐ Count VI — Common-Law "Liable Over"

Count I — Contractual Indemnity

21. The Defendant/Third-Party Plaintiff restates and incorporates by reference the foregoing paragraphs as if fully set forth herein.

22. On or about [__/__/____], the Defendant and the Third-Party Defendant entered into a [written / oral] agreement (the "Agreement") under which the Third-Party Defendant agreed to indemnify, defend, and hold the Defendant harmless from and against [describe the scope of the indemnity obligation]. [____________]

23. The claims asserted by the Plaintiff against the Defendant fall within the scope of the Third-Party Defendant's indemnity obligation under the Agreement.

24. By reason of the foregoing, the Third-Party Defendant is obligated to indemnify the Defendant for all or part of any judgment, loss, expense, and reasonable attorney's fees arising from the Plaintiff's claims.

Count II — Equitable / Implied Indemnity

25. The Defendant/Third-Party Plaintiff restates and incorporates by reference the foregoing paragraphs as if fully set forth herein.

26. Any liability of the Defendant to the Plaintiff arises, if at all, not from the Defendant's own active fault, but solely by operation of law or by reason of the Defendant's relationship to the Third-Party Defendant and the Third-Party Defendant's wrongful conduct. [____________]

27. As between the Defendant and the Third-Party Defendant, the Third-Party Defendant is the party actually at fault and primarily responsible for the Plaintiff's alleged injuries or losses, such that the Third-Party Defendant is obligated to indemnify the Defendant for all or part of any judgment entered in favor of the Plaintiff against the Defendant.

Count III — Contribution

28. The Defendant/Third-Party Plaintiff restates and incorporates by reference the foregoing paragraphs as if fully set forth herein.

29. In the event the Defendant and the Third-Party Defendant are determined to be joint tortfeasors with respect to the Plaintiff's injuries, the Defendant is entitled to contribution from the Third-Party Defendant for the Third-Party Defendant's proportionate share of any common liability, under the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-201 et seq. (including the third-party-practice provision of § 16-61-207), and consistent with the several-liability and comparative-fault scheme of Ark. Code Ann. §§ 16-55-201 and 16-64-122. The Defendant further requests that fault be allocated to the Third-Party Defendant in direct proportion to its percentage of fault.

Count IV — Subrogation

30. The Defendant/Third-Party Plaintiff restates and incorporates by reference the foregoing paragraphs as if fully set forth herein.

31. To the extent the Defendant is compelled to pay any sum to the Plaintiff for which the Third-Party Defendant is primarily liable, the Defendant is or will be subrogated to the rights of the Plaintiff against the Third-Party Defendant and is entitled to recover such sums from the Third-Party Defendant. [____________]

Count V — Breach of Warranty

32. The Defendant/Third-Party Plaintiff restates and incorporates by reference the foregoing paragraphs as if fully set forth herein.

33. The Third-Party Defendant [sold / supplied / manufactured / furnished] to the Defendant the [goods / products / materials / services] that are the subject of the Plaintiff's claims, and in connection therewith made [express warranties / implied warranties of merchantability and/or fitness for a particular purpose]. [____________]

34. To the extent the Plaintiff's injuries or losses were caused by a breach of those warranties, the Third-Party Defendant is liable to the Defendant for all or part of any judgment recovered by the Plaintiff against the Defendant, together with incidental and consequential damages, interest, and costs.

Count VI — Common-Law "Liable Over"

35. The Defendant/Third-Party Plaintiff restates and incorporates by reference the foregoing paragraphs as if fully set forth herein.

36. By reason of [the parties' relationship / the Third-Party Defendant's primary wrongful conduct / operation of law], the Third-Party Defendant is or may be liable over to the Defendant for all or part of the Plaintiff's claim against the Defendant, such that any judgment rendered in favor of the Plaintiff against the Defendant should be borne, in whole or in part, by the Third-Party Defendant. [____________]

VII. PRAYER FOR RELIEF

WHEREFORE, the Defendant/Third-Party Plaintiff respectfully requests that this Court:

A. Enter judgment over against the Third-Party Defendant [THIRD-PARTY DEFENDANT NAME], and in favor of the Defendant/Third-Party Plaintiff, for all or part of any judgment that may be rendered against the Defendant in favor of the Plaintiff, on the theories of indemnity, contribution, subrogation, breach of warranty, and/or "liable over" as set forth above;

B. Allocate to the Third-Party Defendant its proportionate share of fault under Ark. Code Ann. §§ 16-55-201 and 16-64-122 and enter judgment accordingly;

C. Award the Defendant/Third-Party Plaintiff its costs and, where applicable, reasonable attorney's fees under Ark. Code Ann. § 16-22-308 (contract actions) or other contractual or statutory authority;

D. Award pre-judgment and post-judgment interest at the maximum lawful rate; and

E. Grant such other and further relief as this Court deems just and proper.

VIII. JURY DEMAND

The Defendant/Third-Party Plaintiff hereby demands a trial by jury on all issues so triable, pursuant to Ark. R. Civ. P. 38 and Article 2, Section 7 of the Arkansas Constitution.

Jury Trial Demanded: ☐ Yes ☐ No

IX. SIGNATURE

Respectfully submitted,

[FIRM NAME]
[____________]
[____________], AR [____]
Telephone: [____________]
Email: [____________]

By: _____________________________________
[ATTORNEY NAME]
Arkansas Bar No. [____________]
Counsel for Defendant/Third-Party Plaintiff [____________]

X. NOTE ON ISSUANCE AND SERVICE OF THE THIRD-PARTY SUMMONS

Upon the filing of this Third-Party Complaint, the Clerk shall issue a third-party summons under Ark. R. Civ. P. 4 for service upon the Third-Party Defendant. A copy of this Third-Party Complaint, together with a copy of the Plaintiff's original Complaint, shall be served with the third-party summons. Service shall be made in accordance with Ark. R. Civ. P. 4. The Third-Party Defendant must serve a responsive pleading within thirty (30) days after service of the third-party summons and Third-Party Complaint (or within sixty (60) days if incarcerated in any jail, penitentiary, or other correctional facility in Arkansas), in accordance with Ark. R. Civ. P. 12(a).

XI. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [____________], 20[____], a true and correct copy of the foregoing was served upon all counsel of record and/or self-represented parties in accordance with Ark. R. Civ. P. 5 by the following method(s):

☐ Arkansas eFlex / electronic filing system (electronic service on registered users)
☐ Electronic mail with consent
☐ U.S. Mail, first-class postage prepaid
☐ Hand delivery
☐ Other: [____________]

Addressed to:

[____________]
[____________]
[____________]

By: _____________________________________
[ATTORNEY NAME]
Arkansas Bar No. [____________]
Counsel for Defendant/Third-Party Plaintiff [____________]

ARKANSAS-SPECIFIC PROCEDURAL NOTES

Impleader Rules — Two Tracks

• General third-party practice (impleader) is governed by Ark. R. Civ. P. 14, which is based on Fed. R. Civ. P. 14. It permits a defendant, as third-party plaintiff, to bring in a nonparty "who is or may be liable to [the defendant] for all or part of the plaintiff's claim against [the defendant]."
• For contribution in tort actions, Arkansas also has a statutory third-party-practice provision in the Uniform Contribution Among Tortfeasors Act, Ark. Code Ann. § 16-61-207, under which a defendant seeking contribution may move ex parte before answering, or on notice to the plaintiff after answering, for leave to serve a third-party summons and complaint on a joint tortfeasor.

Leave of Court — Timing

• Under Ark. R. Civ. P. 14(a), a defendant need not obtain leave if the third-party complaint is filed not later than ten (10) days after the defendant serves its original answer; otherwise, leave on motion is required. (Note: Arkansas's Rule 14 follows the pre-2007 federal 10-day window; the current federal rule uses 14 days.) Under § 16-61-207, leave is sought by motion (ex parte before answering, or on notice after answering).

Substantive Basis — Several Liability and Comparative Fault

• Rule 14 is procedural only; the third-party plaintiff must have a substantive "liable over" theory — indemnity (contractual or implied), contribution, subrogation, breach of warranty, etc.
• Arkansas now applies several liability with allocation of fault (Ark. Code Ann. §§ 16-55-201, 16-61-201) and modified comparative fault (Ark. Code Ann. § 16-64-122); a claimant whose fault is equal to or greater than the fault of the party from whom recovery is sought is barred. This affects contribution and impleader analysis.

Third-Party Defendant's Responsive Pleading and Claims

• The third-party defendant must make its defenses under Ark. R. Civ. P. 12 and its counterclaims and cross-claims under Ark. R. Civ. P. 13, may assert against the Plaintiff any defenses the third-party plaintiff has, and may assert against the Plaintiff any claim arising out of the same transaction or occurrence. The Plaintiff may amend to assert against the third-party defendant any claim it could have asserted had the third-party defendant been joined originally. Ark. R. Civ. P. 14(a); Ark. Code Ann. § 16-61-207.

Service

• The third-party defendant is a new party and must be served with process (third-party summons and the Third-Party Complaint) under Ark. R. Civ. P. 4 — not merely under Rule 5. Service of the pleading on existing parties is governed by Ark. R. Civ. P. 5.

No Delay of Main Action

• Under Ark. Code Ann. § 16-61-207(6), a failure to serve third parties in time for service to mature before the original proceedings does not delay prosecution of the action between the original parties or impair the original defendant's right of contribution.

Sources and References

• Arkansas Rules of Civil Procedure (Arkansas Judiciary), including Rule 14: https://www.arcourts.gov/rules-and-administrative-orders/rules-of-civil-procedure
• Ark. Code Ann. § 16-61-201 (UCATA — definitions; several liability): https://law.justia.com/codes/arkansas/title-16/subtitle-5/chapter-61/subchapter-2/section-16-61-201/
• Ark. Code Ann. § 16-61-207 (third-party practice; contribution): https://law.justia.com/codes/arkansas/title-16/subtitle-5/chapter-61/subchapter-2/section-16-61-207/
• Ark. Code Ann. § 16-55-201 (several liability; allocation of fault): https://law.justia.com/codes/arkansas/title-16/subtitle-5/chapter-55/subchapter-2/section-16-55-201/
• Ark. Code Ann. § 16-64-122 (comparative fault): https://law.justia.com/codes/arkansas/title-16/subtitle-5/chapter-64/subchapter-1/section-16-64-122/
• Ark. Code Ann. § 16-22-308 (attorney's fees in contract actions): https://law.justia.com/codes/arkansas/title-16/subtitle-2/chapter-22/subchapter-3/section-16-22-308/
• Arkansas Judiciary: https://www.arcourts.gov/