State Court Third-Party Complaint (Impleader)

THIRD-PARTY COMPLAINT — DELAWARE SUPERIOR COURT

TABLE OF CONTENTS

1. Caption
2. Introduction & Governing Rule
3. Parties
4. Jurisdiction & Venue
5. Summary of the Underlying Action
6. General Factual Allegations
7. Count I — Equitable & Contractual Indemnity
8. Count II — Contribution
9. Count III — Equitable Subrogation
10. Count IV — Declaratory Judgment (Duty to Defend & Indemnify)
11. Count V — "Liability Over"
12. Prayer for Relief
13. Jury Demand
14. Signature Block
15. Issuance & Service of Summons on the Third-Party Defendant
16. Certificate of Service
17. Delaware Practice Notes
18. Sources & References

1. CAPTION

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR [NEW CASTLE / KENT / SUSSEX] COUNTY

C.A. No.: [____________]

DEFENDANT/THIRD-PARTY PLAINTIFF [DEFENDANT NAME]'S THIRD-PARTY COMPLAINT AGAINST [THIRD-PARTY DEFENDANT NAME]

2. INTRODUCTION & GOVERNING RULE

Defendant and Third-Party Plaintiff [DEFENDANT NAME] ("Third-Party Plaintiff"), pursuant to Delaware Superior Court Civil Rule 14, brings this Third-Party Complaint against [THIRD-PARTY DEFENDANT NAME] ("Third-Party Defendant"), a person not previously a party to this action, and alleges as follows:

2.1. Authority (Rule 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." This Third-Party Complaint asserts that Third-Party Defendant is or may be so liable to Third-Party Plaintiff.

2.2. Leave / timing (Rule 14(a)). "The third-party plaintiff need not obtain leave to make the service if the third-party plaintiff files the third-party complaint not later than 10 days after serving the original answer. Otherwise, the third-party plaintiff must obtain leave on motion upon notice to all parties to the action."
☐ This Third-Party Complaint is filed within 10 days after Third-Party Plaintiff served its original Answer; leave is not required.
☐ This Third-Party Complaint is filed by leave of Court granted on [__/__/____] [attach order].

2.3. Scope. Under Rule 14(a), the Third-Party Defendant shall make any defenses to the third-party plaintiff's claim under Rule 12 and any counterclaims and cross-claims under Rule 13, may assert against Plaintiff any defenses the Third-Party Plaintiff has to Plaintiff's claim, may assert any claim against Plaintiff arising out of the same transaction or occurrence, and may proceed under Rule 14 against any further non-party who is or may be liable for all or part of the claim against the Third-Party Defendant. Any party may move to strike the third-party claim or for its severance or separate trial.

3. PARTIES

3.1. Third-Party Plaintiff [DEFENDANT NAME] is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County], Delaware], and is the defendant in this action.

3.2. Third-Party Defendant [THIRD-PARTY DEFENDANT NAME] is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County, State]]. Third-Party Defendant was not a party to this action before the filing of this Third-Party Complaint and is brought in pursuant to Del. Super. Ct. Civ. R. 14(a).

3.3. Plaintiff [PLAINTIFF NAME] is the plaintiff in the underlying action and is, and at all relevant times was, a [corporation / limited liability company / individual] [organized under the laws of [State] / residing in [County], Delaware].

4. JURISDICTION & VENUE

4.1. This Court has subject-matter jurisdiction over this Third-Party Complaint, which is ancillary to the pending action over which this Court has already assumed jurisdiction. The Superior Court is Delaware's court of general civil (law) jurisdiction.

4.2. This Court has personal jurisdiction over Third-Party Defendant because Third-Party Defendant resides, is incorporated or organized, or transacts business in Delaware, and/or the acts or omissions giving rise to the indemnity, contribution, and "liability over" claims occurred in or were directed at Delaware (including under the Delaware long-arm statute, 10 Del. C. § 3104, where applicable), establishing sufficient minimum contacts.

4.3. Venue is proper in this County because the original action is pending here and/or one or more parties resides or transacts business here and/or the events giving rise to these claims occurred here.

5. SUMMARY OF THE UNDERLYING ACTION

5.1. On or about [__/__/____], Plaintiff filed a Complaint against Third-Party Plaintiff alleging [describe the plaintiff's claims — e.g., breach of contract, negligence, property damage, personal injury] and seeking damages of $[____________] (the "Underlying Action").

5.2. Third-Party Plaintiff has answered and denies all liability to Plaintiff and denies that it engaged in any of the wrongful conduct alleged.

5.3. To the extent Third-Party Plaintiff is found liable to Plaintiff — which liability is expressly denied — such liability arises in whole or in part from the acts, omissions, fault, or contractual obligations of Third-Party Defendant, who is or may be liable to Third-Party Plaintiff for all or part of Plaintiff's claim within the meaning of Del. Super. Ct. Civ. R. 14(a).

6. GENERAL FACTUAL ALLEGATIONS

6.1. On or about [__/__/____], Third-Party Plaintiff and Third-Party Defendant entered into [describe the agreement, transaction, project, or relationship — e.g., a subcontract, supply agreement, lease, or course of dealing] (the "Agreement"). A true and correct copy is attached as Exhibit A and incorporated by reference.

6.2. Under the Agreement, Third-Party Defendant agreed to [describe the duties Third-Party Defendant undertook — e.g., perform the work, supply conforming goods, maintain insurance, defend and indemnify Third-Party Plaintiff].

6.3. The damages, losses, or conditions of which Plaintiff complains in the Underlying Action were caused, in whole or in part, by Third-Party Defendant's [describe the acts, omissions, defective work, breach, or other fault].

6.4. Third-Party Plaintiff performed all obligations required of it, except those it was excused or prevented from performing.

6.5. [Insert additional numbered factual allegations as needed — dates, communications, the relationship between Third-Party Defendant's conduct and the harm Plaintiff alleges, tenders of defense, and demands.]

6.6. As a direct and proximate result of the conduct alleged, if Third-Party Plaintiff is held liable to Plaintiff, Third-Party Plaintiff will be damaged in the amount of any such judgment, together with its costs and attorneys' fees of defense.

7. COUNT I — EQUITABLE & CONTRACTUAL INDEMNITY

(By Third-Party Plaintiff Against Third-Party Defendant)

7.1. Third-Party Plaintiff incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

7.2. Plaintiff's Complaint alleges that Third-Party Plaintiff is liable to Plaintiff for [describe the underlying claim]. Third-Party Plaintiff denies all liability to Plaintiff.

7.3. If Third-Party Plaintiff is found liable to Plaintiff, such liability is the direct and proximate result of the conduct, fault, or contractual obligations of Third-Party Defendant, and any fault of Third-Party Plaintiff was passive, secondary, or derivative only.

7.4. Equitable indemnity. Third-Party Plaintiff is entitled to indemnification from Third-Party Defendant for all sums Third-Party Plaintiff may be compelled to pay Plaintiff arising from Third-Party Defendant's conduct.

7.5. Express contractual indemnity. To the extent the Agreement obligates Third-Party Defendant to defend and indemnify Third-Party Plaintiff, Third-Party Plaintiff is entitled to express contractual indemnity for the judgment, costs, and fees described, according to the terms of the Agreement.

7.6. Third-Party Plaintiff is entitled to recover its reasonable attorneys' fees and costs of defense where recoverable by contract or law.

8. COUNT II — CONTRIBUTION

(By Third-Party Plaintiff Against Third-Party Defendant)

8.1. Third-Party Plaintiff incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

8.2. To the extent Third-Party Plaintiff and Third-Party Defendant are joint tortfeasors with respect to Plaintiff's claims, Third-Party Plaintiff is entitled to contribution from Third-Party Defendant under the Delaware Uniform Contribution Among Tort-feasors Law, 10 Del. C. §§ 6301–6308.

8.3. Under 10 Del. C. § 6302, the right of contribution exists among joint tortfeasors, and a tortfeasor who has paid more than its pro rata share of the common liability is entitled to contribution for the excess paid over its pro rata share.

9. COUNT III — EQUITABLE SUBROGATION

(By Third-Party Plaintiff Against Third-Party Defendant)

9.1. Third-Party Plaintiff incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

9.2. To the extent Third-Party Plaintiff discharges an obligation to Plaintiff that, in equity and good conscience, should be borne by Third-Party Defendant, Third-Party Plaintiff is entitled to be subrogated to Plaintiff's rights against Third-Party Defendant and to recover from Third-Party Defendant the amounts so paid.

9.3. Third-Party Plaintiff has not acted as a mere volunteer; any payment to Plaintiff will be made under compulsion of the Underlying Action and in protection of Third-Party Plaintiff's own interests.

10. COUNT IV — DECLARATORY JUDGMENT (DUTY TO DEFEND & INDEMNIFY)

(By Third-Party Plaintiff Against Third-Party Defendant)

10.1. Third-Party Plaintiff incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

10.2. An actual controversy exists between Third-Party Plaintiff and Third-Party Defendant concerning their respective rights and duties: Third-Party Plaintiff contends Third-Party Defendant must defend and indemnify it against the Underlying Action; Third-Party Defendant is informed and believed to dispute that obligation.

10.3. Third-Party Plaintiff seeks a declaratory judgment, pursuant to the Delaware Declaratory Judgment Act, 10 Del. C. §§ 6501–6513, that Third-Party Defendant is obligated to defend and indemnify Third-Party Plaintiff against the claims asserted by Plaintiff and to reimburse the costs and fees of defense.

11. COUNT V — "LIABILITY OVER"

(By Third-Party Plaintiff Against Third-Party Defendant, per Del. Super. Ct. Civ. R. 14(a))

11.1. Third-Party Plaintiff incorporates Paragraphs 5.1 through 6.6 as though fully set forth.

11.2. As authorized by Del. Super. Ct. Civ. R. 14(a), Third-Party Defendant "is or may be liable to [Third-Party Plaintiff] for all or part of the plaintiff's claim against [the Third-Party Plaintiff]."

11.3. By the terms of the Agreement and/or by operation of law, Third-Party Defendant is liable over to Third-Party Plaintiff, such that if Third-Party Plaintiff is held liable to Plaintiff, Third-Party Defendant must answer to Third-Party Plaintiff for all or part of that liability.

11.4. Third-Party Plaintiff is therefore entitled to judgment over against Third-Party Defendant for all or part of any judgment Plaintiff may obtain against Third-Party Plaintiff, together with costs and attorneys' fees of defense where recoverable.

12. PRAYER FOR RELIEF

WHEREFORE, Third-Party Plaintiff respectfully requests that the Court enter judgment against Third-Party Defendant [THIRD-PARTY DEFENDANT NAME] as follows:

a. For judgment over against Third-Party Defendant for all or part of any judgment rendered against Third-Party Plaintiff and in favor of Plaintiff in the Underlying Action;
b. For equitable indemnity;
c. For express contractual indemnity in accordance with the Agreement;
d. For contribution under 10 Del. C. §§ 6301–6308 to the extent Third-Party Plaintiff pays more than its pro rata share of any common liability;
e. For equitable subrogation to Plaintiff's rights against Third-Party Defendant for amounts paid;
f. For a declaratory judgment that Third-Party Defendant has a duty to defend and indemnify Third-Party Plaintiff against the Underlying Action;
g. For Third-Party Plaintiff's reasonable attorneys' fees and costs of defense as permitted by contract or law;
h. For pre-judgment and post-judgment interest as allowed by law;
i. For costs of suit; and
j. For such other and further relief as the Court deems just and proper.

13. JURY DEMAND

☐ Third-Party Plaintiff demands a trial by jury on all issues so triable.
☐ Third-Party Plaintiff does not demand a jury and submits the matter to the Court.

14. SIGNATURE BLOCK

Respectfully submitted,

[____________________________]

[ATTORNEY NAME] (Bar ID No. [________])

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [____________]

Email: [____________]

Attorney for Defendant/Third-Party Plaintiff [DEFENDANT NAME]

Dated: [__/__/____]

15. ISSUANCE & SERVICE OF SUMMONS ON THE THIRD-PARTY DEFENDANT

15.1. Pursuant to Del. Super. Ct. Civ. R. 14(a), Third-Party Plaintiff shall cause a summons and this Third-Party Complaint to be served upon Third-Party Defendant [THIRD-PARTY DEFENDANT NAME], who is not a party to the action, in the manner provided by Del. Super. Ct. Civ. R. 4 for service of an original summons and complaint (and, for an out-of-state party, under the Delaware long-arm statute, 10 Del. C. § 3104, where applicable).

15.2. Upon being served, the Third-Party Defendant shall make its defenses under Rule 12 and any counterclaims and cross-claims under Rule 13, may assert against Plaintiff any defenses Third-Party Plaintiff has to Plaintiff's claim, and may implead further non-parties under Rule 14.

15.3. Plaintiff may assert against the Third-Party Defendant any claim arising out of the transaction or occurrence that is the subject matter of Plaintiff's claim against Third-Party Plaintiff, and the Third-Party Defendant shall thereupon assert its defenses under Rule 12 and counterclaims and cross-claims under Rule 13.

16. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [Month], 20[____], I caused a true and correct copy of the foregoing THIRD-PARTY COMPLAINT to be served as indicated below — upon all counsel and parties of record in accordance with Del. Super. Ct. Civ. R. 5(b), and upon the Third-Party Defendant by summons and Third-Party Complaint pursuant to Del. Super. Ct. Civ. R. 4:

☐ Personal service of summons and Third-Party Complaint on Third-Party Defendant (Del. Super. Ct. Civ. R. 4)
☐ File & ServeXpress / the Court's electronic filing and service system (on parties of record)
☐ U.S. Mail, first-class postage prepaid
☐ Email (by agreement)

addressed to:

[NAME, FIRM, ADDRESS, AND/OR E-SERVICE EMAIL OF EACH PARTY/COUNSEL SERVED, AND THE THIRD-PARTY DEFENDANT]

[____________________________]

[ATTORNEY NAME] (Bar ID No. [________])

17. DELAWARE PRACTICE NOTES

• Rule number. Impleader in the Superior Court is governed by Del. Super. Ct. Civ. R. 14, which tracks Fed. R. Civ. P. 14: subsection (a) lets a defending party bring in a non-party "who is or may be liable to the third-party plaintiff for all or part of the plaintiff's claim"; subsection (b) lets a plaintiff implead when a counterclaim is asserted against it.
• Leave / 10-day window (note the difference from federal). No leave is needed if the third-party complaint is filed not later than 10 days after the original answer (Delaware's window is 10 days; the federal rule allows 14). Otherwise the third-party plaintiff must obtain leave on motion upon notice to all parties. If leave is required, file a Motion for Leave to File Third-Party Complaint with the proposed pleading attached.
• Summons required. Because impleader brings in a non-party, serve a summons and the third-party complaint under Rule 4, as on commencement of an original action; use the long-arm statute (10 Del. C. § 3104) for out-of-state third-party defendants where applicable.
• Third-party defendant's role. The third-party defendant asserts Rule 12 defenses and Rule 13 counterclaims/cross-claims, may assert the third-party plaintiff's defenses against the plaintiff, may assert same-transaction claims against the plaintiff, and may implead further non-parties. Any party may move to strike, sever, or try the third-party claim separately.
• Contribution / indemnity theory. Tort contribution is governed by the Delaware Uniform Contribution Among Tort-feasors Law, 10 Del. C. §§ 6301–6308. Confirm whether equitable indemnity, statutory contribution, or contractual indemnity is the correct vehicle for the facts.
• Court / forum. The Superior Court is Delaware's court of general civil (law) jurisdiction and the proper forum for legal claims and jury trials. Purely equitable third-party claims belong in the Court of Chancery, whose parallel impleader rule is Ct. Ch. R. 14. Confirm the correct forum before impleading on an equitable theory.
• Jury demand. A jury demand must comply with Del. Super. Ct. Civ. R. 38 (served not later than 10 days after the last pleading directed to the issue), or the right is waived.

18. SOURCES & REFERENCES

• Del. Super. Ct. Civ. R. 14 (Third-Party Practice) — https://courts.delaware.gov/rules/
• Del. Super. Ct. Civ. R. 4 (process; service of summons and complaint)
• Del. Super. Ct. Civ. R. 12 (defenses); Rule 13 (counterclaims and cross-claims); Rule 5(b) (service of papers); Rule 38 (jury trial)
• 10 Del. C. §§ 6301–6308 (Delaware Uniform Contribution Among Tort-feasors Law)
• 10 Del. C. §§ 6501–6513 (Declaratory Judgment Act); 10 Del. C. § 3104 (long-arm statute)
• Ct. Ch. R. 14 (third-party practice in the Court of Chancery — for equitable actions)
• Rules of the Superior Court of the State of Delaware — https://courts.delaware.gov/superior/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Delaware must review and customize this document before filing. Court rules and citations change; verify all authorities before use.