1 2
3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 NATIONAL INSURANCE CRIME CASE NO. C19-0730JLR BUREAU, 11 ORDER GRANTING IN PART Plaintiff, AND DENYING IN PART 12 v. PLAINTIFF’S MOTION FOR INTERPLEADER
13 DESSIE RENEE WAGNER, et al., 14 Defendants. 15 I. INTRODUCTION 16 Before the court are three motions: (1) Plaintiff National Insurance Crime 17 Bureau’s (“NICB”) unopposed motion to be exempted from completing a joint status 18 report (MJSR (Dkt. # 15)); (2) NICB’s motion for interpleader and dismissal (MFI (Dkt. 19 # 16)); and (3) Defendant Dessie Renee Wagner’s motion to continue or to re-note 20 NICB’s motion for interpleader and dismissal (MTC (Dkt. # 17)). The court has 21 considered the motions, the parties submissions filed in support of and in opposition to 22 1 the motions, the relevant portions of the record, and the applicable law. Being fully 2 advised,1 the court DENIES NICB’s motion to be exempted from completing a joint
3 status report but grants NICB an extension of time to do so, DENIES Ms. Wagner’s 4 motion to continue or re-note NICB’s motion for interpleader and dismissal, and 5 GRANTS in part and DENIES in part NICB’s motion for interpleader and dismissal. 6 II. BACKGROUND 7 NICB filed its complaint for interpleader and declaratory relief on May 15, 2015. 8 (Compl. (Dkt. # 1).) NICB alleges decedent Scott Laverne Wagner and Ms. D.R.
9 Wagner were married on July 26, 1996. (Id. ¶ 12.) Mr. Wagner was employed by NICB 10 from February 1, 2003, through September 9, 2016. (Id. ¶ 13.) While Mr. Wagner was 11 employed at NICB and while he was married to Ms. D.R. Wagner, he participated in 12 NICB’s Employee Savings Plan (“ESP”). (Id. ¶¶ 14-15.) On February 3, 2003, Mr. 13 Wagner designated Ms. D.R. Wagner as the primary beneficiary of his ESP. (Id. ¶ 16.)
14 At the same time, Mr. Wagner designated his two adult sons, Defendant Joseph Scott 15 Wagner and Defendant Andrew Wesley Wagner, as the contingent beneficiaries of his 16 ESP, with a 50% designation to each. (Id.) 17 On November 27, 2006, Mr. Wagner and Ms. D.R. Wagner’s marriage was 18 dissolved. (Id. ¶ 17.) NICB alleges, on information and belief, that Mr. Wagner and Ms.
19 D.R. Wagner agreed, as a part of their dissolution proceedings, that Mr. Wagner would 20 //
21 1 No party requests oral argument on any of the motions (see MJSR; MFI; MTC; MFI Resp. (Dkt. # 18); MTC Resp. (Dkt. # 19)), and the court does not consider oral argument helpful 22 to its disposition of the motions, see Local Rules W.D. Wash. LCR 7(b)(4). 1 not pay any of his ESP benefits to Ms. D.R. Wagner and that Mr. Wagner would retain 2 “all pensions, 401k, annuities, investment accounts, or other retirement accounts” in his
3 name. (Id.) However, Mr. Wagner never updated his beneficiary designation form, and 4 the February 3, 2003, form, described above, is the only one that exists. (Id. ¶ 18.) 5 On April 26, 2016, Mr. Wagner married Defendant Leslie Ann Wagner. (Id. 6 ¶ 22.) During their marriage, Mr. Wagner participated in NICB’s ESP. (Id. ¶ 23.) Mr. 7 Wagner died on July 23, 2017, and as a result, his ESP benefits became payable. (Id. 8 ¶¶ 19-20.) Ms. L.A. Wagner is the personal representative of Mr. Wagner’s estate, and
9 she admitted Mr. Wagner’s estate to probate in Snohomish County Superior Court under 10 cause number 17-4-0439-31. (Id. ¶ 24.) 11 NICB designated Fidelity Management Trust Company (“Fidelity”) as the 12 record-keeper and trustee of its ESP. (Id. ¶ 1.) On November 29, 2017, Fidelity sent Ms. 13 L.A. Wagner a written request for a certified copy of Mr. Wagner’s death certificate. (Id.
14 ¶ 25.) On December 15, 2017, Fidelity sent Ms. L.A. Wagner a beneficiary claim form 15 and requested that she obtain the necessary signatures on the form. (Id. ¶ 26.) Fidelity 16 also requested a copy of the marriage certificate to determine Ms. L.A. Wagner’s status 17 as a potential beneficiary of Mr. Wagner’s ESP. (Id.) 18 On or about March 26, 2018, non-party Kirsten Curtis, of the Neil Law Group, in
19 Portland, Oregon, corresponded with Ms. D.R. Wagner regarding Mr. Wagner’s ESP 20 benefits. (Id. ¶ 27.) The letter that Ms. Curtis sent to Ms. D.R. Wagner asked Ms. D.R. 21 Wagner to renounce and disclaim any interest in Mr. Wagner’s ESP benefits based on 22 Mr. Wagner and Ms. D.R. Wagner’s dissolution decree. (Id. ¶ 28.) Ms. D.R. Wagner 1 signed the renunciation letter, dated it March 26, 2018, and returned it to NICB. (Id. 2 ¶ 29.) However, she failed to have the letter notarized. (Id. ¶ 29.)
3 On August 27, 2018, NICB received a letter from the attorney for Mr. Wagner’s 4 estate and for Ms. L.A. Wagner, as the personal representative of Mr. Wagner’s estate, 5 demanding payment of Mr. Wagner’s ESP benefits to his estate. (Id. ¶ 30.) NICB sent a 6 letter to the attorney stating that NICB was concerned that the ESP benefits may be a 7 non-probate asset. (Id. ¶ 31.) NICB also noted that, although Ms. D.R. Wagner had 8 signed a waiver, her waiver was not notarized. (Id.)
9 The attorney for Mr. Wagner’s estate and for Ms. L.A. Wagner, as the personal a 10 representative of Mr. Wagner’s estate, filed suit in Snohomish County Court for a ruling 11 concerning the ESP benefits. (See id. ¶¶ 31-32.) On or about January 3, 2019, Ms. D.R. 12 Wagner filed a motion to dismiss the action. (Id. ¶ 32.) On or about January 10, 2019, 13 the Snohomish County Superior Court granted Ms. D.R. Wagner’s motion, ruling that the
14 “employee benefit retirement plan” was not an asset subject to probate. (Id. ¶ 33; see 15 also MFI Resp. Ex. 4 (attaching a copy of order of dismissal, which does not state that 16 grounds upon which the Snohomish County Superior Court granted the motion).) 17 However, the Snohomish County Superior Court did not decide how Mr. Wagner’s ESP 18 benefits should be distributed. (See id. Ex. 2 (attaching email correspondence between
19 counsel in which Ms. D.R. Wagner’s counsel stated that he “assume[s] the [Snohomish 20 County Superior] Court can summarily dismiss [the estate’s and Ms. L.A. Wagner’s 21 lawsuit] on the merits, without having to decide whether the benefit proceeds belong to 22 [Ms. D.R. Wagner] or her children”).) 1 On January 12, 2019, NICB received a letter, via Fidelity, from Ms. D.R. Wagner 2 enclosing a copy of the Snohomish County Superior Court’s order and demanding
3 payment of the ESP benefits to her. (See id. ¶ 34.) On January 25, 2019, NICB alerted 4 Ms. D.R. Wagner that both she and Ms. L.A. Wagner had asserted right to Mr. Wagner’s 5 ESP benefits. (Id. ¶ 35.) 6 On or about April 19, 2019, Ms. D.R. Wagner sent an email to NICB requesting a 7 summary plan description and the beneficiary distribution. (Id. ¶ 36.) NICB understood 8 this and Ms. D.R. Wagner’s previous correspondence to mean that Ms. D.R. Wagner
9 believes that she is the sole beneficiary of Mr. Wagner’s ESP benefits. (Id.) Due to the 10 conflict between Ms. D.R. Wagner and Ms. L.A. Wagner, NICB corresponded separately 11 with each of them. (Id.) NICB now understands that there may be conflicting claims 12 between Ms. D.R. Wagner; Ms. L.A. Wagner; Mr. Wagner’s estate; Ms. L.A. Wagner, as 13 the personal representative of Mr. Wagner’s estate; and Ms. D.R. Wagner’s sons. (Id. ¶
14 38.) 15 NICB states that it is merely a stakeholder and claims no beneficial interest in the 16 Mr. Wagner’s ESP benefits and that it is “ready and willing” to pay Mr. Wagner’s ESP 17 benefits to the individual legally entitled to them. (Id. ¶¶ 39-40.) NICB avers that it 18 cannot pay Mr. Wagner’s ESP benefits without assuming responsibility for determining
19 questions of law and fact and without incurring the risk of being subject to costs and 20 expenses in defending itself in a multiplicity of lawsuits or the possibility of multiple 21 liabilities for the ESP benefits. (Id. ¶ 41.) 22 // 1 On May 23, 2019, NICB filed proofs of service upon Mr. A.W. Wagner; Ms. L.A. 2 Wagner; Ms. L.A. Wagner, as the personal representative of Mr. Wagner’s estate; Mr.
3 Wagner’s estate; Mr. J.S. Wagner; and Ms. D.R. Wagner. (See Decls. of Serv. (Dkt. 4 ## 3-8.) To date, Ms. D.R. Wagner is the only Defendant who has appeared through 5 counsel or otherwise in this action. (Not. of App. (Dkt. # 10); see generally Dkt.) 6 However, Ms. D.R. Wagner has not yet answered NICB’s interpleader complaint. (See 7 generally Dkt.) 8 On August 1, 2019, NICB filed a motion seeking exemption from completing a
9 joint status report. (MJSR.) No party filed an opposition. (See Dkt.) On August 7, 10 2019, NICB filed a motion for interpleader. (See MFI.) Ms. D.R. Wagner opposes 11 NICB’s motion for interpleader. (See MFI Resp.) On August 19, 2019, Ms. D.R. 12 Wagner filed a motion to continue or to re-note NICB’s motion for interpleader. (See 13 MTC.) NICB opposes Ms. D.R. Wagner’s motion. (See MTC Resp.) The court now
14 considers the parties’ motions. 15 III. ANALYSIS 16 A. Motion to be Exempt from the Joint Status Report 17 On June 26, 2019, the court issued an order regarding (1) the production of 18 Federal Rule of Civil Procedure 26(a)(1) initial disclosures, (2) the conduct of a Rule
19 26(f) conference, and (3) the filing of a combined joint status report and discovery plan. 20 (6/26/19 Order (Dkt. # 13).) On August 1, 2019, NICB moved to be exempt from 21 participating in the filing of a combined joint status report pending the outcome of its 22 // 1 anticipated motion for interpleader. (See generally MJSR.) No party filed a response to 2 the motion. (See generally Dkt.)
3 Under the court’s Local Rules, “if a party fails to file papers in opposition to a 4 motion, [the court may consider] such failure . . . as an admission that the motion has 5 merit.” Local Rules W.D. Wash. LCR 7(b)(2). However, in this instance, the court 6 nevertheless denies NICB’s motion. As discussed below, Ms. D.R. Wagner intends to 7 assert counterclaims against NICB. See infra ¶¶ III.C. Thus, despite its motion for 8 interpleader, the court declines to dismiss NICB from the action as time. See id.
9 Nevertheless, the court finds good cause to grant NICB an extension of the deadlines 10 contained in its June 26, 2019, order as follows: 11 • Deadline for the Federal Rule of Civil Procedure 26(f) conference: 30 days 12 following the filing of Ms. D.R. Wagner’s answer and counterclaims to 13 NICB’s complaint;
14 • Initial Disclosures Pursuant to Federal Rule of Civil Procedure 26(a)(1): 45 15 days following the filing of Ms. D.R. Wagner’s answer and counterclaims 16 to NICB’s complaint; and 17 • Combined Joint Status Report and Discovery Plan as Required by Federal 18 Rule of Civil Procedure 26(f) and Local Civil rule 26(f): 52 days following
19 the filing of Ms. D.R. Wagner’s answer and counterclaims to NICB’s 20 complaint. 21 //
22 // 1 B. Motion to Re-Note NICB’s Motion of for a Continuance 2 On August 7, 2019, NICB filed its motion for interpleader and noted its motion on
3 the court’s calendar for the third Friday after filing. (See MFI); see Local Rules W.D. 4 Wash. LCR 7(d)(3) (stating that “[w]ith the exception of motions specifically listed in 5 LCR 7(d)(1), 7(d)(2), and 7(d)(3), all other motions shall be noted for consideration on a 6 date no earlier than the third Friday after filing and service of the motion”). Ms. D.R. 7 Wagner moved for a continuance of NICB’s motion or to re-note it for the fourth Friday 8 after filing and service. (See MTC.) As discussed below, the court denies Ms. D.R.
9 Wagner’s motion. 10 Under Local Civil Rule 7(d)(3), the moving party is required to note dispositive 11 motions—such as motions to dismiss and for summary judgment—“for consideration on 12 a date no earlier than the fourth Friday after filing and service of the motion.” Local 13 Rules W.D. Wash. LCR 7(d)(3). The moving party is required to note other motions—
14 ones not specifically listed in other parts of Local Civil Rule 7(d)—“on a date no earlier 15 than the third Friday after filing and service of the motion.” Id. Ms. D.R. Wagner argues 16 that the court should re-note NICB’s motion for the fourth Friday after filing because “it 17 is partially dispositive of this action.” (MTC at 1.) Ms. D.R. Wagner argues that 18 depositing the money contained in Mr. Wagner’s ESP benefits in the registry of the court
19 “would result in a taxable event from the liquidation of tax-deferred employee benefit 20 funds.” (Id. at 2.) 21 The court disagrees. Interpleader “is merely a procedural device,” Morongo Band 22 of Mission Indians v. Cal. State Bd. of Equalization, 858 F.2d 1376, 1382 (9th Cir. 1988), 1 and is “not intended to alter substantive rights,” Reliance Nat. Ins. Co. v. Great Lakes 2 Aviation, Ltd., 430 F.3d 412, 415-16 (7th Cir. 2005) (citing Sanders v. Armour Fertilizer
3 Works, 292 U.S. 190, 200 (1934); Avant Petroleum, Inc. v. Banque Paribas, 853 F.2d 4 140, 143 (2d Cir. 1988)). Indeed, “[t]he procedural device of interpleader allows a 5 stakeholder effectively to avoid a dispute with the claimants while the court determines 6 the proper allocation of the disputed fund.” Cleverley v. Ballantyne, No. 7 2:12-CV-00444-GWF, 2014 WL 2526959, at *2 (D. Nev. June 4, 2014) (citing Knights 8 of Columbus v. Virginia Trust, 2012 WL 7784585, *5 (D. Nev. 2012); Tittle v. Enron
9 Corp., 463 F.3d 410, 423 (5th Cir. 2006)). Thus, the court does not consider a motion for 10 interpleader to be a “dispositive motion” governed by the fourth Friday noting rule. See 11 Local Rules W.D. Wash. LCR 7(d)(3). 12 Second, as discussed below, under Rule 22 interpleader, the party seeking 13 interpleader does not need to deposit the funds at issue in the court registry. See supra
14 § III.C; see also Fed. R. Civ. P. 22. The court has discretion to allow the plaintiff to 15 retain the funds at issue subject to the court’s orders. Premera Blue Cross v. Winz, No. 16 2:17-cv-695-BAT, 2017 WL 6451802, at *3 (W.D. Wash. Dec. 18, 2018). Thus, Ms. 17 D.R. Wagner need not be concerned that granting NICB’s motion will result in a taxable 18 event. Accordingly, the court finds that NICB’s motion for interpleader is not “partially
19 dispositive” as asserted by Ms. D.R. Wagner, and therefore, NICB properly noted its 20 motion for interpleader on the third Friday after filing and service. See Local Rules W.D. 21 Wash. LCR 7(d)(3). 22 // 1 Ms. D.R. Wagner also seeks an extension of time to respond to NICB’s 2 interpleader motion due to serious health issues related to her counsel’s child. (See MTC
3 at 3.) The court denies this aspect of Ms. D.R. Wagner’s motion as moot. First, Ms. 4 D.R. Wagner did file a response to NICB’s motion on August 19, 2019. (See MFI Resp.) 5 Further, the court infers that the health crisis described in August 2019, has passed 6 because counsel had sufficient time and wherewithal to file a new action on behalf of a 7 different client in this court on September 26, 2019. See Jenkins v. Puckett and Redford 8 PLLC, No. C19-1550BJR, W.D. Wash., Compl. (Dkt. # 1). If counsel had sufficient
9 wherewithal to begin representation of another client in separate matter, then the court 10 considers counsel to have sufficient wherewithal to attend to this preexisting litigation as 11 well. Based on the foregoing, the court denies Ms. D.R. Wagner’s motion to re-note or to 12 continue NICB’s motion for interpleader. 13 C. Motion for Interpleader
14 The “primary purpose” of an interpleader action is to protect disinterested 15 stakeholders from multiple liability and the expense of several lawsuits. See Aetna Life 16 Ins. Co. v. Bayona, 223 F.3d 1030, 1034 (9th Cir. 2000). Thus, the disinterested 17 stakeholder is permitted to bring a lawsuit against all parties asserting adverse or 18 conflicting claims to the same funds and require those parties to litigate who is entitled to
19 the funds. See Cripps v. Life Ins. Co. of N. Am., 980 F.2d 1261, 1265 (9th Cir. 1992). 20 //
21 //
22 // 1 An interpleader action may be brought either under 28 U.S.C. § 1335 or Federal 2 Rule of Civil Procedure 22.2 See, e.g., Morongo Band of Mission Indians, 858 F.2d at
3 1381-82. Here, NICB brings its motion for interpleader under Rule 22. (See MFI at 2; 4 see Compl. ¶ 44.3) Under Rule 22, “[p]ersons with claims that may expose a plaintiff to 5 double or multiple liability may be joined as defendants and required to interplead.” Fed. 6 R. Civ. P. 22(a)(1). If the interpleader action is brought under Rule 22, the court may 7 dismiss the stakeholder subject to disposition of the property in the manner directed by 8 the court. Gelfgren, 680 F.2d at 81-82. Interpleader is proper when a disinterested
9 stakeholder has at least a good faith belief that there are present or prospective colorable 10 competing claims to the stake. Michelman v. Lincoln Nat’l Life Ins. Co., 685 F.3d 887, 11 884, 899 (9th Cir. 2012); N.Y. Life Ins. Co. v. Powell, No. 12-cv-5184-RBL, 2012 WL 12 4868008, at *2 (W.D. Wash. Oct. 12, 2012). 13 //
14 // 15
16 2 If, as here, the disinterested stakeholder brings its action under Rule 22, the stakeholder must establish that there is an independent basis for federal jurisdiction. Morongo Band of 17 Mission Indians, 858 F.2d at 1382; Gelfgren v. Republic Nat’l Life Ins. Co., 680 F.2d 79, 81 (9th Cir. 1982) (stating that “for the interpleader to be proper under [R]ule 22[(a)](1) it must be 18 within some statutory grant of jurisdiction”). Here, NICB properly alleges that court has federal question subject matter jurisdiction under 28 U.S.C. § 1331 because the action arises under the 19 Employee Retirement Income Security Act of 1974 (“ERISA”), which is a federal statute. (See Compl. ¶ 9); see Winz, 2017 WL 6451802, at *3 (concluding that the court had subject matter 20 jurisdiction over the interpleader action because the plans at issue were governed by ERISA).
3 In its complaint, NICB pleads, in the alternative, that the court should order Defendants 21 joined and interpleaded under 28 U.S.C. § 1335. (Compl. ¶ 44.) Because the court determines that interpleader is appropriate under Rule 22, the court need not analyze NICB’s request for 22 interpleader under 28 U.S.C. § 1335. 1 There are two steps to an interpleader action. Lincoln Nat’l Life Ins. Co. v. 2 Ridgway, 293 F. Supp. 3d 1254, 1260 (W.D. Wash. 2018). The first is to determine
3 whether the requirements of interpleader are met. Id. The second is to adjudicate the 4 adverse claims of the defendant claimants. Id. “Once the adverse parties are interpleaded 5 to a single fund, disinterested stakeholders may be dismissed, and courts may issue 6 injunctions to protect stakeholders from duplicative litigation from the adverse parties.” 7 N.Y. Life Ins. Co. v. Bostwick, No. 3:14-cv-05931-RJB, 2015 WL 4484305, at *2 (W.D. 8 Wash. July 22, 2015).
9 However, a district court may delay or deny the discharge of the stakeholder if 10 there are “serious charges that the stakeholder commenced the action in bad faith.” 11 Mendez v. Teachers Ins. & Annuity Ass’n, 982 F.2d 783, 788 (2d Cir. 1992). As the 12 Ninth Circuit has held, “the federal interpleader remedy does not shield a negligent 13 stakeholder from tort liability for its creation of a conflict over entitlement to the
14 interpleaded funds.” Lee v. W. Coast Life Ins. Co., 688 F.3d 1004, 1014 (9th Cir. 2012). 15 Indeed, “interpleader was not intended to extinguish independent tort claims, nor 16 intended to relieve the stakeholder from liability in excess of the stake.” Id. at 1012. 17 Rather, “a claimant may seek to recover all damages directly and proximately caused by 18 the negligent stakeholder’s conduct.” Id. at 104. In other words, “a disinterested
19 stakeholder may not be subjected to liability for its failure to resolve the controversy over 20 entitlement to the stake in one claimant’s favor, but . . . a stakeholder whose alleged tort 21 caused the controversy is not absolved of liability by filing an interpleader action.” Id. 22 This exception to the general rule, however, is a narrow one. Id. In bringing such a 1 counterclaim, an interpleaded defendant must allege facts that the stakeholder’s actions 2 caused the conflict. See id.
3 In this case, the court determines that interpleader is proper under Rule 22. In its 4 complaint and motion, except for reimbursement of the attorney fees and costs it has 5 incurred herein, NICB claims no rights over Mr. Wagner’s ESP benefits. (Compl. ¶ 40; 6 MFI at 2-3.) Further, NICB properly alleges a good faith belief that there are or may be 7 conflicting claims to Mr. Wagner’s ESP benefits. Indeed, NICB alleges that Ms. D.R. 8 Wagner, who now asserts rights to the benefits, at one point signed a disclaimer to those
9 same benefits. (See Compl. ¶¶ 28-29.) Further, Mr. Wagner’s estate and Ms. L.A. 10 Wagner previously filed suit in state court seeking those same funds. (Id. ¶¶ 31-32.) 11 Although the state court dismissed the suit, NICB alleges that subsequent correspondence 12 with the parties indicates that “conflicting claims” continue to exist among Ms. D.R. 13 Wagner, Ms. L.A. Wagner, Ms. L.A. Wagner as the personal representative of Mr.
14 Wagner’s estate, Mr. Wagner’s estate, and Ms. D.R. Wagner’s sons. (Compl. ¶¶ 37-38.) 15 Finally, NICB, as a disinterested party, is willing to pay Mr. Wagner’s ESP benefits to 16 the proper legal beneficiary. (Id. ¶ 39; MFI at 2-3.) Based on these alleged facts, the 17 court concludes that the prerequisites for interpleader under Rule 22 are met, NIB has “at 18 least a good faith belief that there are present or prospective colorable competing claims
19 to the stake,” see Michelman, 685 F.3d at 884, 889, and NICB should not be exposed to 20 “double or multiple liability” in determining the proper beneficiaries of Mr. Wagner’s 21 ESP benefits, see Fed. R. Civ. P. 22(a)(1). 22 // 1 Nevertheless, Ms. D.R. Wagner objects to the deposit of Mr. Wagner’s ESP 2 benefits into the court registry. (MFI Resp. at 2.) She argues that “[g]ranting [NICB’s]
3 motion to deposit the money into the court registry would result in a taxable event from 4 the liquidation of tax-deferred employee benefit funds.” (Id.) Rule 22 interpleader, 5 however, does not require a “deposit” into the court’s registry. Gelfren v. Republic Nat’l 6 Life Ins. Co., 680 F.2d 79, 82 (9th Cir. 1982) (concluding that “a deposit is not a 7 jurisdictional requirement to [R]ule 22[(a)](1) interpleader . . . and thus was not required 8 here”); Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1159 (5th Cir. 1976). “Courts, in
9 their discretion, have found it preferable to direct the stakeholder to retain possession of 10 the fund, subject to the court’s final order.” Winz, 2017 WL 6451802, at *3; see also 11 Lazar v. Charles Schwab & Co., Inc., No. SA CV 12-02141 BRO (ANx), 2014 WL 12 12547256, at *6 (C.D. Cal. Mar. 17, 2014) (concluding that a deposit was not required 13 for dismissal where the plaintiff agreed to abide by the court’s ruling and distribute the
14 funds upon the court’s determination of a proper beneficiary). Here, “NICB is willing to 15 hold the ESP benefits in its current account for ultimate disposition by order of this 16 [c]ourt.” (MTC Resp. at 2.) The court agrees that, in this instance, it is preferable to 17 maintain Mr. Wagner’s ESP benefits in their current account subject to this court’s final 18 judgment and hereby order NICB to do so. The court also orders NICB to file an update
19 as to the most current account balance within 14 days of the filing date of this order. 20 In its discretion, the court may also dismiss NICB from this action. See Winz, 21 2017 WL 6451802, at *2 (“Once the adverse parties are interpleaded to a single fund, 22 disinterested stakeholders may be dismissed . . . .”) (quoting Bostwick, 2015 WL 1 4484305, at *2). However, the court declines to do so presently. In her response to 2 NICB’s interpleader motion, Ms. D.R. Wagner asserts that she intends to bring
3 counterclaims against NICB “for distribution of the fund at issue” and “for failure to 4 provide ERISA plan documents.” (MFI Resp. at 3.) Ms. D.R. Wagner has not yet filed 5 an answer to NICB’s interpleader complaint. (See generally Dkt.) Her failure to do so 6 may be due to the recent health care crisis of her attorney’s child. (See MFI Resp. at 3.) 7 Accordingly, the court grants Ms. D.R. Wagner an additional 14 days from the filing date 8 of this order to file an answer to NICB’s complaint, including any counterclaims that she
9 intends to allege. As described above, the court cautions Ms. D.R. Wagner that the type 10 of counterclaim permitted in an interpleader action is one that does not extend to the 11 interpleaded funds. See Lee, 688 F.3d at 1009. The court anticipates that counsel for Ms. 12 D.R. Wagner will adhere to the Ninth Circuit’s guidelines in this regard. If Ms. D.R. 13 Wagner fails to file her alleged counterclaims within the 14-day period set by the court,
14 the court will consider dismissing NICB at that time. 15 Finally, NICB seeks its attorney fees and expenses in bringing this action. (See 16 MFI at 1, 3.) “In an interpleader action, costs and attorney’s fees are generally awarded, 17 in the discretion of the court, to the plaintiff who initiates the interpleader as a mere 18 disinterested stakeholder.” Prudential Ins. Co. of Am. v. Boyd, 781 F.2d 1494, 1497
19 (11th Cir. 1986) (citing Perkins State Bank v. Connolly, 632 F.2d 1306, 1311 (5th Cir. 20 1980)). However, “there is no right for the stakeholder to recover costs and attorney’s 21 fees.” Unum Life Ins. Co. of Am. v. Kaleo, No. 6:05-CV-544-Orl-22DAB, 2006 WL 22 1517257, at *2 (M.D. Fla. May 24, 2006). Because the court declines to discharge NICB 1 due to Ms. D.R. Wagner’s anticipated counterclaims, the court also denies NICB’s 2 request for fees and costs as premature. See Ridgway, 293 F. Supp. 3d at 1266 (“Because
3 Plaintiff will not be discharged from this matter due to the pending bad faith 4 Counterclaim, and because the bad faith Counterclaim remains to be resolved, the Court 5 will deny these requests [for attorney’s fees and costs] as premature”). However, nothing 6 in this order prevents NICB from renewing its request once Ms. D.R. Wagner’s 7 anticipated counterclaims are resolved. See id. 8 IV. CONCLUSION
9 Based on the foregoing analysis, the court (1) DENIES NICB’s unopposed motion 10 to be exempted from completing a joint status report but grants NICB an extension of 11 time to respond to the court’s order as detailed above (Dkt. # 15); (2) DENIES Ms. D.R. 12 Wagner’s motion to continue or to re-note NICB’s motion for interpleader and dismissal 13 (Dkt. # 17); and (3) GRANTS in part and DENIES in part NICB’s motion for
14 interpleader and dismissal as described above (Dkt. # 16). In addition, the court 15 ORDERS (1) Ms. D.R. Wagner to file her answer to NICB’s interpleader complaint and 16 any counterclaims she may have against NICB no later than 14 days from the filing date 17 //
18 //
19 //
20 //
22 // 1 of this order; and (2) NICB to file an update as to the most current account balance of Mr. 2 Wagner’s ESP benefits within 14 days of the filing date of this order.
3 Dated this 30th day of October, 2019. 4 A 5 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18
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