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FRANK BRISCOE CO. v. ALBERT PICK CO.

March 29, 1968

FRANK BRISCOE COMPANY, Inc., etc., and Huber, Hunt & Nichols, Inc., etc., Plaintiffs,
v.
ALBERT PICK CO., Inc., etc., et al., Defendants



The opinion of the court was delivered by: WORTENDYKE

 WORTENDYKE, District Judge:

 This action is one in the nature of interpleader and invokes the jurisdiction of this Court under 28 U.S.C. § 1335. The complaint was filed August 8, 1967, and amended January 5, 1968. The plaintiffs, respectively corporations of New Jersey and Indiana, as the members of a Joint Venture, allege that the amount in controversy exceeds the sum of $500 exclusive of costs and that the numerous defendants, who are citizens of different states, have made or may make claims against certain monies which may be due and owing from the Joint Venture to some of the claimants, for the recovery of which litigation has been instituted and is pending elsewhere. The claims alleged arise under or in connection with a contract between the Joint Venture, as prime contractors, and General Services Administration of the United States of America for the erection of a Federal Office Building in Kansas City, Missouri. The complaint alleges that a subcontract, dated June 14, 1963, modified by a change order, dated April 23, 1964, was entered into by the Joint Venture with Albert Pick Co., Inc., an Illinois corporation, for the furnishing and installation of cafeteria and kitchen equipment in the building for the sum of $205,220. Albert Pick Co., Inc. is the debtor-in-possession appointed by the United States District Court for the Southern District of New York in a proceeding for an arrangement under the Bankruptcy Act entitled In The Matter of Albert Pick Co., Inc. (Docket No. 65 B 182). As debtor-in-possession, Pick undertook the completion of and has substantially completed the work under its subcontract with Joint Venture to the point at which the amount that would be due to Pick at this time, except for various withholdings claimed by the Joint Venture for Pick's failure to obtain releases and other evidences of payment from its materialmen and suppliers, is $170,026.03, against which the claims of some of the numerous defendants have been or will be asserted.

 Standard Financial Corporation, a corporation of the State of New York, and one of the defendants named in this action, has moved this Court for an Order vacating its restraining order entered on August 10, 1967 and dismissing the complaint pursuant to F.R.Civ.P. 12(b) upon the following asserted grounds:

 
(1) Failure of the complaint to state a claim against the moving defendant upon which relief can be granted.
 
(2) Lack of jurisdiction in this Court under 28 U.S.C. § 1335(a)(2) because of conceded failure of plaintiffs to deposit into the registry of the Court the entire sum of money in its possession due and owing to Pick.
 
(3) Lack of interpleader jurisdiction in this Court under 28 U.S.C. § 1335 because neither Standard Financial Corporation nor Pick is a resident of the District of New Jersey.
 
(4) Priority of jurisdiction by the Supreme Court of the State of New York for the County of New York over the same parties upon the same facts and identical issues in a pending action therein.
 
(5) Any claim against Standard Financial is barred by laches.
 
(6) The equitable remedy of interpleader is not available to plaintiffs because of their unclean hands.
 
(7) Improper service of process upon Standard Financial.
 
(8) Because the granting of the ex parte restraining order was inequitable and prejudicial to Standard Financial.

 In support of its motion, Standard Financial has filed an affidavit by Louis J. Cappelli, its Vice President, from which it appears that on January 25, 1966 Standard Financial commenced an action in the Supreme Court of the State of New York for the County of New York against Joint Venture to recover the sum of $205,220 claimed to be due from Joint Venture to Standard Financial as assignee of Pick for certain restaurant and cafeteria equipment sold and delivered by Pick to Joint Venture and installed in the cafeteria portion of the Federal Building constructed by the Joint Venture, as general contractor, for the General Services Administration on behalf of the United States of America in Kansas City, Missouri. In the New York action Joint Venture appeared and joined issue upon the complaint therein. It was not until August 18, 1967 that the complaint in the action in this Court was served upon Standard Financial. The New York action would probably be reached for trial in the near future. The plaintiffs have not deposited into this Court the entire sum which is the subject of the alleged conflicting claims because Schedule "A" annexed to the complaint discloses that plaintiffs have unilaterally deducted some $25,000 from the cash balance shown on hand. The amount of such deduction is allegedly due to plaintiffs on account of their estimated legal fees and "reserves for guarantees and other items." Neither Pick nor Standard Financial has a situs within the District of New Jersey, and Pick is not an adverse claimant to the funds in the possession of the plaintiffs because Pick "assigned all of its right, title and interest in and to the moneys due from plaintiffs to Standard Financial Corporation and, * * *, has never made any claim to these moneys."

 While this Court had Standard's motion to dismiss under advisement, a motion for summary judgment was filed by Groen Manufacturing Company, a party claiming under the Miller Act, 40 U.S.C. 270a et seq. Groen has moved this Court, alternatively, to dismiss the interpleader action, to direct payment to Groen of its claim of $3,645.68 out of the fund deposited with the Court, or to modify the restraining order previously entered in this case so as to allow Groen to pursue its Miller Act remedy in the Federal District Court for the Western District of Missouri where suit was instituted on January 21, 1966. Groen asserts that, irrespective of Standard's claim for the entire contract amount allegedly owing to Pick, the Joint Venture has in fund, or by way of bond, resources which are more than adequate to satisfy all claimants without risk of multiple liability or undue ...


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