Because Kroger placed particular emphasis on the circumstance that there was "factual similarity" but no "logical dependence" between the claim asserted by the plaintiff against the third-party defendant and the only other claim asserted (10) (that between the plaintiff and original defendant), there is good reason to conclude that the Kroger rule was not intended to foreclose ancillary jurisdiction over such "logically dependent" claims as a plaintiff's compulsory counterclaim against a third-party defendant, or a plaintiff's claim for indemnity or contribution from a third-party defendant that the plaintiff itself sought to implead.
2 such a plaintiff may invoke supplemental jurisdiction to implead third-party defendants in its own right, and to assert a compulsory counterclaim against a third-party defendant who has chosen to assert a claim directly against the plaintiff.
The extended principle required rejection of "the reasoning of the Court of Appeals in this case," under which "a plaintiff could defeat the statutory requirement of complete diversity by the simple expedient of suing only those defendants who were of diverse citizenship and waiting for them to implead nondiverse defendants.
The "third-party plaintiff" is the original defendant, who now wears two hats in the litigation after invoking Rule 14(a) to implead the third-party defendant by the filing and service of a third-party complaint.
Rule 14(b) expressly authorizes the plaintiff to implead third-party defendants in response to a counterclaim, and Rule 14(a) by its terms applies generically to allow impleader of a third-party defendant by a "defending party.
2] (lamenting the application of 1367(b) to frustrate plaintiffs who are in a defensive position to implead third parties or assert compulsory counterclaims against third-party defendants); id.
First, a plaintiff with a nonfederal claim against both a diverse defendant and a nondiverse defendant can simply sue only the diverse defendant and then wait for that defendant to implead the nondiverse party under the court's supplemental jurisdiction.
The Michigan defendant may then implead the California defendant for contribution and indemnity.
128) The Court reasoned that exercising ancillary jurisdiction would allow a plaintiff to circumvent the complete diversity requirement by choosing to sue only the diverse defendant and waiting for that defendant to implead the nondiverse defendant under the court's ancillary jurisdiction.
For instance, a plaintiff may implead a nondiverse third-party defendant under Rule 14(b)(131) for indemnity and contribution in response to the original diverse defendant's counterclaim because the plaintiff's state law claim for indemnity and contribution(132) did not arise until the defendant filed its counterclaim.
For example, a plaintiff who has a claim against a diverse defendant and a nondiverse defendant can choose to sue only the diverse defendant, rely on the diverse defendant to implead the nondiverse defendant and hope that the nondiverse defendant will assert a direct claim against the plaintiff.
Rule 14 allows the original defendant to implead a nonparty.