interpleader action these reasons should be taken into consideration.
Primarily under Rule 41(a)(2) the court in its discretion must determine if legal prejudice or disadvantage would result to the defendants in interpleader from granting the dismissal. The prospect of further litigation over this money in other courts and the incidental annoyance thereof is not legal prejudice. Ex parte Skinner & Eddy Corp., supra; Jones v. Securities & Exchange Commission, 1936, 298 U.S. 1, 19, 56 S. Ct. 654, 80 L. Ed. 1015; Pullman's Palace Car Co. v. Central Transportation Co., 1898, 171 U.S. 138, 146, 18 S. Ct. 808, 43 L. Ed. 108; New York, C. & St. L.R. Co. v. Vardaman, 8 Cir., 1950, 181 F.2d 769; Home Owners' Loan Corporation v. Huffman, 8 Cir., 1943, 134 F.2d 314, 317.
The UE contends that it has filed a counterclaim for affirmative relief and Rule 41(a)(2) by its terms precludes a dismissal of the action. This contention is without merit. Interpleader actions involve two successive litigations. The first phase is between the plaintiff and the claimants as to whether the claimants shall interplead. After a hearing on the bill and answers the court may grant or deny the interpleader. The second phase follows a decree of interpleader and is between the adverse claimants to the fund on the merits after they have interpleaded their respective claims to the money secured by bond or paid into court. Girard Trust Co. et al. v. Vance et al., D.C.E.D. Pa., 5 F.R.D. 109; Moore's Federal Practice, 2d Ed., Vol. 3, page 3047, quoting from Turman Oil Co. v. Lathrop, D.C.N.D. Okl. 1934, 8 F.Supp. 870, 873. See also Reconstruction Finance Corporation v. Aquadro et al., D.C.W.D. Pa. 1947, 7 F.R.D. 406, 409. It is customary for claimants to set up their claims to the fund in their answers to the bill of complaint and this was specifically directed by the prior court order in this case. In the event a decree of interpleader is entered, each claimant must then traverse the claims of the other claimants and thus issue is joined between them for trial. Moore's Federal Practice, 2d Ed., Vol. 3, page 3049, quoting from Equitable Life Assur. Soc of United States v. Kit et al., D.C.E.D. Pa., 1938, 22 F.Supp. 1022, 1023; Phoenix Mut. Life Ins. Co. of Hartford, Conn. v. Reich et al., D.C.W.D. Pa. 1948, 75 F.Supp. 886; 48 C.D.S.,Interpleader, 35; Cyclopedia of Federal Procedure, 2d Ed., Vol. 6, Sec. 2222.
In the instant case the matter is in its first or preliminary phase. The decree of interpleader has not been and may never be entered. Assuming that it is established at the preliminary hearing that additional funds are in dispute, as the answers assert, none of the claimants at that point can obtain a money judgment against the plaintiff. Indeed, Westinghouse may refuse to secure or pay the disputed additional funds into court whereupon the action would be dismissed because an essential jurisdictional requisite is lacking. Edner v. Massachusetts Mut. Life Ins. Co. et al., supra. Only in the second phase when the decree of interpleader has been entered and all of the money involved is secured or paid into court, and the various claimants have answered other adverse claims to the fund on the merits, may money judgments be obtained by proof of allegations in the nature of a counterclaim.
In respect to other alleged prejudice, UE and its Locals have not convinced us that they will suffer if the action is dismissed. No trial expenses have been incurred. Time and effort expended in the preparation of the case without doubt will serve in good stead in the future. They do not have any vested right, statutory or otherwise, to have the issues tried in this court and no compelling advantage has been suggested if they obtained that right. IUE-CIO and its Locals, the other claimant unions involved, not only consent but urge that the motion to dismiss be granted.
UE also contends that the motion should be denied under Section 1404(a), 28 U.S.C.A., and the principles of law governing forum non conveniens. No application to transfer the case to another forum is made by the motion to discontinue; therefore, this contention is inapposite. Section 1404(a) does not abridge in the slightest degree plaintiff's right to an order of dismissal under Rule 41(a). Compare New York, C. & St. L.R. Co. v. Vardaman, supra.
A decree will be entered dismissing this interpleader and dissolving the restraining order at the costs of the plaintiff.