The opinion of the court was delivered by: WEINER
On November 2, 1983 Bechtel Power Corporation ("Bechtel") filed this interpleader action against sixteen defendants. At the time of the filing there were three cases pending in this district arising out of the same transaction: (1) Henkels & McCoy, Inc. v. Baltimore Contractors, Inc., C.A. 83-1090 (assigned to Judge Hannum); (2) James E. McFadden, Inc. v. Baltimore Contractors, Inc., et al., C.A., 609 F. Supp. 1102 (assigned to Judge Giles); and (3) Northern Lehigh Erectors Corp. v. Bechtel Power Corp., et al., C.A. 83-4034 (assigned to Judge Troutman). All of the plaintiffs in those actions are named defendants in this interpleader action. In McFadden and Northern Lehigh, Bechtel is a defendant. In Henkels & McCoy, Bechtel is named as a garnishee.
The interpleader is brought by Bechtel pursuant to 28 U.S.C. §§ 1335, 1397 and 2361 and Fed.R.Civ.P. 22. The dispute arises from construction of the Circulating Water Pumphouse for Units 1 and 2 of the Limerick Generating Station in Montgomery County, Pennsylvania. Bechtel, apparently acting as construction manager of the project, entered into a written contract, Subcontract Agreement, No. 8031-SC-50 (the "Subcontract Agreement"), with Baltimore Contractors, Inc. ("Baltimore") for the construction by Baltimore of the pumphouse. Baltimore thereafter entered into a number of second-tier subcontracts with all of the named defendants, except, of course, Baltimore, for the provision of labor, materials, equipment or supplies in connection with Baltimore's construction of the pumphouse. Bechtel alleges that, pursuant to the Subcontract Agreement, it withheld retainage from its regular progress payments to Baltimore, amounting to the maximum authorized amount of $250,000. Bechtel labels this as "the fund."
In its prayer for relief, Bechtel seeks: (1) an order preliminarily enjoining or restraining McFadden, Northern Lehigh and Henkels from prosecuting the three pending cases; (2) an order transferring the cases to a single judge as related matters and consolidating them with this interpleader matter, or staying them pending disposition of the interpleader action; (3) an order preliminarily enjoining and restraining each of the defendants during the pendency of this action from instituting any action of any kind whatsoever against Bechtel, "in respect of or affecting recovery of part or all of the amounts in the Fund or any other amounts claimed owing to Baltimore under the Subcontract Agreement"; (4) entry of judgment in favor of Bechtel and against Baltimore and such other defendants as the court deems appropriate, on Bechtel's contractual, legal, and equitable claims; (5) entry of judgment in favor of Bechtel and against such defendants as assert any claims against Bechtel relating to work performed on the Limerick Project; (6) determination of the interest, if any, of each claimant and defendant in the fund and direction of payment of any such amount; and (7) the award of reasonable counsel fees, interest, and costs. (Complaint.) Bechtel has moved for a stay of related cases, or in the alternative, for their consolidation.
Defendant Northern Lehigh has filed a motion to dismiss the complaint in interpleader and a motion in opposition to Bechtel's motion for stay and consolidation. United States Fidelity and Guaranty Company ("USF & G"), not a party to this action but claiming to have interests that would be affected by the motion to stay or consolidated the other cases, is a defendant in James E. McFadden, Inc. v. Baltimore Contractors, Inc., et al., 609 F. Supp. 1102. USF & G, in an amicus memorandum, opposes the motion to stay or consolidate that case with the interpleader action. It takes no position on the propriety of the use of interpleader since it is not a party to the interpleader action.
It is Northern Lehigh's position that Bechtel's complaint is fatally defective because Bechtel failed to either deposit the fund with the court or post a bond in the amount of the fund. However, the docket sheet reflects that on November 23, 1983 a bond in the amount of $250,000 was posted by The American Insurance Company on behalf of Bechtel. A court order filed that same date approved the bond. Therefore, assuming such posting to be a jurisdictional prerequisite, it has been fulfilled.
Northern Lehigh further argues that interpleader is substantively not available to Bechtel. The interpleader statute provides:
§ 1335. Interpleader (a) The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person, firm, or corporation, association, or society having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such amount or value, or being under any obligation written or unwritten to the amount of $500 or more, if
(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits arising by virtue of any note, bond, certificate, policy or other instrument, or arising by virtue of any such obligation; and if (2) the plaintiff has deposited such money or property or has paid the amount of or the loan or other value of such instrument or the amount due under such obligation into the registry of the court, there to abide the judgment of the court, or has given bond payable to the clerk of the court in such amount and with such surety as the court or judge may deem proper, conditioned upon the compliance by the plaintiff with the future order or judgment of the court with respect to the subject matter of the controversy.
(b) Such an action may be entertained although the titles or claims of the conflicting claimants do not have a common origin, or are not identical, but are adverse to and independent of one another. June 25, 1948, c. 646, 62 Stat. 931.
The remedy of interpleader is one in equity and is governed by equitable principles. Miller & Miller Auctioneers, Inc. v. G.W. Murphy Industries, 472 F.2d 893, 895 (10th Cir.1973) (and collected cases). Although earlier equitable interpleader required that a plaintiff have incurred no independent liability to any of the claimants, the modern trend has been toward allowing interpleader despite the existence of such a claim. Libby, McNeil, and Libby v. City National Bank, 592 F.2d 504, 507 (9th Cir.1978) (citing C. Wright, Handbook of the Law of Federal Courts § 74, at 364 (3d ed. 1976)). "The ...