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WASSERMAN v. FIDELITY & DEPOSIT CO. OF MARYLAND

February 27, 1979

SEYMOUR WASSERMAN, Plaintiff, against FIDELITY AND DEPOSIT COMPANY OF MARYLAND, INC., Defendant; IRVING TRUST COMPANY and FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff, against NATIONWIDE LEISURE CORPORATION, et al., Defendants.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

This is a statutory interpleader action brought pursuant to 28 U.S.C. § 1335. The Court has jurisdiction over the action since more than $ 500 is in controversy and at least two claimants are alleged to be of diverse citizenship.

 The Court has considered the submissions of the parties on the question of which, if any, pending state-court actions may properly be enjoined pursuant to 28 U.S.C. § 2361. *fn1" This opinion sets forth the Court's findings of fact and conclusions of law.

 The Facts

 Nationwide Leisure Corporation ("Nationwide"), as a charter operator, was required by federal regulations to deposit monies it received from tour participants in escrow accounts at a bank with which it had a depository or escrow agreement. In the latter part of 1976, Irving Trust Company ("Irving") became Nationwide's depository bank.

 On October 21, 1976, Fidelity and Deposit Company of Maryland ("Fidelity"), as surety, issued a bond on behalf of Nationwide as principal and in favor of the United States as obligee in the sum of $ 200,000 pursuant to the Special Regulations of the Civil Aeronautics Board to secure certain of Nationwide's obligations to tour participants.

 On August 5, 1978, Nationwide ceased operations and cancelled all subsequent tours. On that date, Irving had in excess of $ 900,000 on deposit in Nationwide's escrow accounts. Irving thereafter made refunds from these accounts to tour participants whose flights had been cancelled and partial refunds to those who themselves had cancelled their tours prior to departure. After these refunds were made, $ 72,458.60 remained in the escrow accounts.

 On January 16, 1979, Irving and Fidelity commenced this interpleader action by depositing with the Court the money remaining in the escrow accounts and the $ 200,000 proceeds of the bond issued by Fidelity. Irving and Fidelity named as defendants approximately 1600 tour participants and other nontour participants, including some of Nationwide's creditors, who have made or may make a claim against the interpleaded funds.

 Pending State Court Actions Involving Allegations that Irving Breached its Fiduciary Duty

 Plaintiffs contend that all pending state-court actions in which it is alleged that Irving engaged in misfeasance or nonfeasance in the administration of the escrow accounts be enjoined and that these claims be asserted as compulsory counterclaims in the interpleader action. Plaintiffs contend that by placing the "whole ball of wax" before the Court in the interpleader action, plaintiffs will be protected from a plurality of suits.

 Defendants, who are plaintiffs in actions pending in the New York State Supreme Court in which Irving and/or Fidelity are named as defendants, oppose plaintiffs' efforts to enjoin state-court actions on claims which defendants allege do not involve the interpleaded fund, and to consolidate the claims in the interpleader action.

 Plaintiffs contend that the claims against Irving based on negligence should be pleaded as compulsory counterclaims in the interpleader action pursuant to F.R.Civ.P. 13(a). That rule provides:

 
"A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, . . . ."

 The cases cited by plaintiffs hold simply that counterclaims may be pleaded against the stakeholder in interpleader actions. See, e.g., Liberty National Bank & Trust Co. of Oklahoma City v. Acme Tool Division of Rucker Co., 540 F.2d 1375 (10th Cir. 1976); Bell v. Nutmeg Airways Corporation, 66 F.R.D. 1, 4 (D.Conn.1975); 3A Moore's Federal Practice P 22.15 at 22-149 to 22-151. Rule 13(a) does not speak to the scope of a court's power to enjoin pending state-court actions pursuant to 28 U.S.C. § 2361. And where, as here, the claims of the defendants were the subject of pending ...


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