Jim Aaron v. Susan Mahl

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 07-4004 & 08-2020
JIM A ARON,
Plaintiff,
v.
S USAN J. M AHL,
Defendant-Appellant,
v.
M ERRILL L YNCH, P IERCE,
F ENNER & S MITH,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 CV 656—Robert L. Miller, Jr., Chief Judge.
A RGUED O CTOBER 23, 2008—D ECIDED D ECEMBER 18, 2008
Before B AUER, W OOD , and T INDER, Circuit Judges.
2 Nos. 07-4004 & 08-2020
T INDER, Circuit Judge. Susan Mahl and Jim Aaron were
live-in lovers in southern California in the late 1990s. But
the romance only lasted until 2001 when Aaron left Mahl
for another woman. However, for the past seven years or
so, Aaron has been arduously pursing Mahl, from Califor-
nia to Indiana and then South Carolina; but sadly, not
because he is having second thoughts about the demise of
their relationship—as you will soon learn, he has quite a
different motivation. In the meantime, Mahl has been
drastically reinventing herself. And for good reason—in
early 2000, a California law firm sued Mahl for what was
essentially embezzlement from that firm during her tenure
as its managing partner. That suit resulted in a judgment
for a little more than a million dollars in favor of the firm
against Mahl. Not surprisingly, Mahl left the practice of
law, left California, changed her last name to Scott (which
is how we will refer to her from this point on) and moved
eventually to South Carolina where she apparently still
resides. At some point in this transformation, Scott opened
IRA accounts in LaPorte, Indiana, the proceeds of which
are at the heart of the present dispute (and the reason for
Merrill Lynch being in this case). And the inspiration for
Aaron’s continued interest in Scott? According to Aaron,
the California law firm assigned its judgment against Scott
to him (which may seem odd, but that is not important to
this appeal) and he has been attempting—unsuccessfully
so far—to collect on that judgment. Up to this point, these
disputes have journeyed through state and federal courts
in California, Indiana, and South Carolina. Today we
determine whether an Indiana district court properly
granted Merrill Lynch interpleader as the holder of some
Nos. 07-4004 & 08-2020 3
of the assets over which Aaron and Scott are engaged in
tug of war.
I. Background
Aaron brought these matters to the Indiana court system
by seeking to domesticate the California judgment in the
circuit court of LaPorte County, Indiana, where some of
Scott’s assets were located. The LaPorte Circuit Court
entered a temporary restraining order against Scott in
December 2001, prohibiting her from transferring those
assets. Scott promptly violated the court order and moved
the assets into accounts with Merrill Lynch.
The LaPorte Circuit Court domesticated Aaron’s as-
signed judgment and held Scott in contempt for moving
the funds. It also entered three orders in proceedings
supplemental that are pertinent to this appeal. The first
order, entered in January 2003, ordered Merrill Lynch not
to deliver the assets to Scott or any other person and not to
dispose of or transfer the assets. Like the parties, we will
refer to this as the “freeze order.” Because the Merrill
Lynch accounts contained retirement funds, Scott chal-
lenged Aaron’s right to execute on the funds under Indiana
law. The second order, entered in June 2003, determined
that Indiana law did not exempt Scott’s funds from execu-
tion by Aaron; however, it also determined that it could
not order the assets moved by Scott in violation of the
4 Nos. 07-4004 & 08-2020
temporary restraining order “back to Indiana.” 1 The parties
understandably found the order confusing. The third
order, which we will address momentarily, explained the
reasoning behind the second order.
Despite the LaPorte Circuit Court’s second order that the
funds could not be ordered back to Indiana, Aaron sought
and obtained an ex parte writ of execution from the clerk
of the court, in attempt to have the Merrill Lynch funds
turned over to him. Merrill Lynch, still bound by the freeze
order, refused to comply. Scott filed a motion to quash the
writ of execution, and the LaPorte Circuit Court set a
hearing on the issue. Rather than wait for the hearing,
Aaron filed a complaint against Scott and Merrill Lynch in
the U.S. District Court for the Northern District of Indiana.
Noting that Aaron’s precise legal theory of recovery was
unclear, the district court construed Aaron’s complaint as
requesting that the court enforce the writ of execution and
require Merrill Lynch to turn over the funds to which
Aaron was entitled. Merrill Lynch filed a counterclaim and
cross-claim against Aaron and Scott for interpleader.
In September 2004, the district court stayed the case
pursuant to the Colorado River doctrine 2 while the LaPorte
1
Scott appealed, and the Indiana Court of Appeals affirmed
the LaPorte Circuit Court’s June 2003 determination that Indiana
law did not exempt Scott’s retirement accounts from execution
by Aaron. Mahl v. Aaron, 809 N.E.2d 953, 958-59 (Ind. Ct. App.
2004).
2
See Colorado River Water Conservation Dist. v. United States, 424
(continued...)
Nos. 07-4004 & 08-2020 5
Circuit Court considered Scott’s motion to quash the writ
of execution. In March 2005, the LaPorte Circuit Court
entered its third order granting Scott’s motion. The court
explained its second order from June 2003 in greater detail
because “in retrospect, the Order was not artfully drafted
. . . and has created continuing confusion.” The court
clarified that the second order ruled that Indiana law did
not provide Scott with an exemption from execution on her
retirement accounts. The order was not intended, however,
to allow Aaron to execute on the funds because the court
lacked the power to order the funds back to Indiana—“the
attachment of Defendant Scott’s personal property should
be accomplished through a court in her state of residence
or an appropriate federal court.” After this third order had
been affirmed by the Indiana Court of Appeals, see Aaron
v. Scott, 851 N.E.2d 309 (Ind. Ct. App. 2006), trans. denied,
869 N.E.2d 446 (Ind. 2007), the federal district court lifted
its stay in February 2007 to address the parties’ cross-
motions for summary judgment.
The district court concluded that Merrill Lynch properly
refused to comply with the now-void writ of execution
and, therefore, Merrill Lynch was not personally liable to
Aaron. The court also determined that interpleader was
appropriate because Merrill Lynch was a disinterested
stakeholder facing conflicting claims between Aaron and
2
(...continued)
U.S. 800 (1976) (holding that in narrow circumstances a federal
court can decline to exercise jurisdiction where a state court is
contemporaneously exercising jurisdiction).
6 Nos. 07-4004 & 08-2020
Scott. The court granted Merrill Lynch’s motion for sum-
mary judgment on the interpleader claims, with a note that
the order would become effective after Merrill Lynch
deposited the funds with the federal court’s registry (as
required by statutory interpleader). The LaPorte Circuit
Court then lifted the freeze order to allow Merrill Lynch to
deposit the funds. The district court subsequently granted
Merrill Lynch’s motion to enter final judgment on its
interpleader claim under Fed. R. Civ. P. 54(b). Finally, the
district court awarded Merrill Lynch attorneys’ fees from
the interpleader stake. Scott appealed from the grant of
interpleader and the award of attorneys’ fees.
II. Interpleader
We begin, as we must, with the district court’s subject-
matter jurisdiction, which Scott contends was lacking.
Autotech Tech. LP v. Integral Research & Dev. Corp., 499 F.3d
737, 742 (7th Cir. 2007). Aaron’s complaint alleged diversity
jurisdiction under 28 U.S.C. § 1332. Aaron is a citizen of
Indiana, Scott is a citizen of South Carolina, and Merrill
Lynch is a Delaware corporation with its principal place of
business in New York. The amount in controversy was
alleged to exceed $213,000. Aaron’s allegations satisfied
§ 1332, so the district court clearly had subject-matter
jurisdiction. Scott’s concerns stem, apparently, from the
district court’s initial consideration of Merrill Lynch’s
interpleader claim under Fed. R. Civ. P. 22 and its subse-
quent use of statutory interpleader, set out in 28 U.S.C.
§ 1335.
Nos. 07-4004 & 08-2020 7
Section 1335 provides the federal court with an inde-
pendent basis for asserting subject-matter jurisdiction, but
Rule 22 does not. Commercial Nat’l Bank of Chi. v. Demos, 18
F.3d 485, 488 (7th Cir. 1994). The district court permitted
Merrill Lynch to proceed only under Rule 22 interpleader
initially, because it, unlike statutory interpleader, does not
require the stake to be deposited in the federal court’s
registry. (As previously mentioned, Merrill Lynch could
not deposit the stake due to the LaPorte Circuit Court’s
freeze order.) Jurisdiction was proper, though, because the
district court had diversity jurisdiction over Aaron’s claim
and supplemental jurisdiction over Merrill Lynch’s inter-
pleader claims. See id. That the district court later permit-
ted Merrill Lynch to proceed under statutory inter-
pleader—on the condition that the freeze order be removed
and the stake deposited—did not deprive the court of
subject-matter jurisdiction.3 On appeal, we have jurisdic-
tion because the district court entered final judgment in
favor of Merrill Lynch under Fed. R. Civ. P. 54(b). 28 U.S.C.
§ 1291.
The district court’s grant of summary judgment in favor
of Merrill Lynch was based purely upon a decision of law,
3
Scott points out that the district court’s switch from Rule 22
interpleader to statutory interpleader adversely affected the
stake because statutory interpleader’s mandatory deposit of the
funds in the court’s registry was a taxable event. Perhaps
countervailing considerations warranted the switch; in any
event Scott does not argue that the district court should not have
allowed Merrill Lynch to assert statutory interpleader, so we
will not address the issue further.
8 Nos. 07-4004 & 08-2020
which we review de novo. Officer v. Chase Ins. Life &
Annuity Co., 541 F.3d 713, 714 (7th Cir. 2008). Interpleader
is an equitable procedure used when the stakeholder is in
danger of exposure to double liability or the vexation of
litigating conflicting claims. Indianapolis Colts v. Mayor and
City Council of Baltimore, 741 F.2d 954, 957 (7th Cir. 1984).
Interpleader is justified only when the stakeholder has a
real and reasonable fear of double liability or conflicting
claims. Id.; Union Cent. Life Ins. Co. v. Hamilton Steel Prods.,
Inc., 448 F.2d 501, 504 (7th Cir. 1971). A “real and reason-
able fear” does not require the party requesting inter-
pleader to show that the claimants might eventually
prevail. “Of course, the claims of some interpleaded parties
will ultimately be determined to be without merit. That,
however, is the very purpose of the proceeding and it
would make little sense in terms either of protecting the
stakeholder or of doing justice expeditiously to dismiss one
possible claimant because another possible claimant asserts
the claim of the first is without merit.” Union Cent. Life Ins.
Co., 448 F.2d at 504; John Hancock Mut. Life Ins. Co. v.
Beardslee, 216 F.2d 457, 460 (7th Cir. 1954) (“[T]he conflict-
ing claims against the funds need not be such claims as can
finally be proved in court.”). On the other hand, the
adverse claims must meet a “minimal threshold level of
substantiality.” Indianapolis Colts, 741 F.2d at 958. After a
court has determined that interpleader is warranted, the
claimants proceed to a second stage in which the merits of
their claims are resolved. United States v. High Tech. Prods.,
Inc., 497 F.3d 637, 641 (6th Cir. 2007). The district court
granted Scott’s motion to stay the second stage of inter-
pleader while this appeal was pending.
Nos. 07-4004 & 08-2020 9
Scott argues that Merrill Lynch did not have a real and
reasonable fear of double liability or the vexation of
litigating conflicting claims. Scott’s position is incredible,
given that Merrill Lynch has been involved since 2003 in
claims filed by Aaron spanning state and federal court (and
multiple appeals) in a dispute over possession of funds
that, from its inception, has been essentially between
Aaron and Scott. There is little doubt that Scott, too, would
have sued Merrill Lynch if Merrill Lynch had turned over
the money to Aaron. In fact, her attorneys wrote a letter
threatening to do so, which was attached as an exhibit to
Merrill Lynch’s claim. Scott presents two arguments
against Merrill Lynch’s real and reasonable fear, based
upon the legitimacy of Aaron’s claims.
First, Scott argues that res judicata determines the
outcome of this suit. Res judicata, or claim preclusion, bars
the relitigating of claims if “the cause of action has been
fully and finally determined on the merits between the
same parties by a court of competent jurisdiction.” Jarrard
v. CDI Telecomms., Inc., 408 F.3d 905, 916 (7th Cir. 2005)
(citing Neese v. Kelley, 705 N.E.2d 1047, 1051 (Ind. Ct. App.
1999)). Res judicata bars not only those issues actually
decided in the prior suit, but all other issues which could
have been brought. Hondo, Inc. v. Sterling, 21 F.3d 775, 779
(7th Cir. 1994). Scott believes that the LaPorte Circuit
Court’s June 2003 order decided on the merits that the
funds could not be returned to Indiana, i.e., that Scott was
entitled to possession of the funds. Aaron’s claim, she
argues, could not be the basis for a real and reasonable fear
of conflicting claims because Aaron already lost that battle
in state court.
10 Nos. 07-4004 & 08-2020
On the contrary, the June 2003 order decided that
Scott’s funds were not exempt from execution by
Aaron under Indiana law, but the court could not order the
funds back to Indiana. Though the order was somewhat
opaque, the court’s explanation in its March 2005 order
was clear:
The June 13, 2003 Order indicates that this Court
could not order the funds back to Indiana. The
Court was and continues to be of the opinion that
the attachment of Defendant Scott’s personal
property should be accomplished through a court
in her state of residence or an appropriate federal
court. Consequently, this Court does not have the
ability to order the assets held by Merrill Lynch to
be turned over to the Plaintiff in partial satisfaction
of the judgment. Only a South Carolina court or a
federal court can do that.
(internal citation omitted). The LaPorte Circuit Court’s
decision that it lacked the ability to order the funds back to
Indiana is most decidedly not in Scott’s favor on the merits.
See Jarrard, 408 F.3d at 916 (“[Appellant] displays a
less-than-complete understanding of the relevant doctrine
at issue. The . . . dismissal on the basis of jurisdiction
certainly did not amount to a full and final adjudication on
the merits . . . so res judicata, or claim preclusion, clearly
does not apply here.”).4 Further, the LaPorte Circuit
4
Though we must respect the decision of the LaPorte Circuit
Court, we note that its determination that it had personal
(continued...)
Nos. 07-4004 & 08-2020 11
4
(...continued)
jurisdiction over garnishee-defendant Merrill Lynch in the
proceedings supplemental might have allowed it to order
Merrill Lynch to move the funds back to Indiana. See State Farm
Mut. Auto. Ins. Co. v. Estep, 873 N.E.2d 1021, 1033 n.13 (Ind. 2007)
(Boehm, J., concurring in part and dissenting in part) (noting
that a garnishee’s presence in proceedings supplemental is
necessary to acquire jurisdiction over the debtor’s property that
is in the garnishee’s possession). Obviously the court had the
power to order Scott to return the funds, but Scott had already
been violating the court’s order to return the funds for two years
at that point.
As noted at oral argument, in reality the funds are no more
than an electronic entry in Merrill Lynch’s database system and
are not sitting in a suitcase in a vault somewhere outside of the
state of Indiana. Even under the restrictive view that the funds
were located in South Carolina and beyond the court’s in rem
jurisdiction, the Supreme Court has noted that “the maxim that
personalty has its situs at the domicile of its owner is a fiction of
limited utility.” Hanson v. Denckla, 357 U.S. 235, 249 (1958)
(footnote omitted). Indiana courts have ignored the maxim and
declined to exercise jurisdiction in Indiana where it would have
been inappropriate. See Saler v. Irick, 800 N.E.2d 960, 971-72 (Ind.
Ct. App. 2003) (holding that in rem jurisdiction was not appro-
priate where the annuities at issue were not present in Indiana,
even though the decedent’s domicile was Indiana). Conversely,
the court may have been able to exercise in rem jurisdiction in an
appropriate situation such as this one, where in rem jurisdiction
was lacking only because Scott removed the funds from Indiana
in violation of the court’s order. See, e.g., United States v. One
1979 Rolls-Royce Corniche Convertible, 770 F.2d 713, 716-17 (7th
(continued...)
12 Nos. 07-4004 & 08-2020
Court’s decision on the limitation of its own jurisdiction
has no bearing on the powers wielded by the federal court.
Scott also argues res judicata on the basis of Aaron’s
state-court appeal. The Indiana Court of Appeals affirmed
the LaPorte Circuit Court’s March 2005 order on two
grounds relevant here: (1) the LaPorte Circuit Court’s clerk
lacked the authority to issue a writ of execution in contra-
vention of the court’s prior order; and (2) Aaron defaulted
his argument that the court did have jurisdiction to order
the funds to Indiana because he never appealed from the
June 2003 order. Res judicata does not apply to bar Aaron’s
claim on the basis of these decisions, either.5
Second, Scott argues that Merrill Lynch did not have a
real and reasonable fear of double liability or the vexation
of litigating conflicting claims because Aaron’s only theory
of recovery espoused in the federal complaint was frivo-
lous from the outset. Aaron’s complaint set out in twelve
4
(...continued)
Cir. 1985) (“[A] court’s jurisdiction remains over the res in an in
rem action if the res is removed or released accidentally, fraudu-
lently, or improperly from the court’s control.”) (citing The Rio
Grande, 90 U.S. 458, 465 (1874)).
5
Scott similarly argues that collateral estoppel applies.
Collateral estoppel, or issue preclusion, prevents a party from
relitigating issues that have already been litigated and decided.
Wolverine Mut. Ins. v. Vance ex rel. Tinsley, 325 F.3d 939, 943 (7th
Cir. 2003). “A dismissal for lack of jurisdiction precludes
relitigation of the issue actually decided, namely the jurisdic-
tional issue.” Perry v. Sheahan, 222 F.3d 309, 318 (7th Cir. 2000).
Nos. 07-4004 & 08-2020 13
paragraphs that Aaron had a judgment against Scott
entered by the LaPorte Circuit Court, Merrill Lynch
controlled five accounts belonging to Scott, Aaron had a
writ of execution against those accounts, and Merrill Lynch
refused to honor the writ. The complaint named both Scott
and Merrill Lynch as defendants. When the district court
stayed the action pending the LaPorte Circuit Court’s
determination of the writ of execution’s validity, it made
two observations that Scott finds significant. First, it noted
that Aaron’s theory of recovery was unclear but he ap-
peared to be asking the court to enforce the writ of execu-
tion and require Merrill Lynch to turn over the funds to
which Aaron was entitled. Second, the district court noted
that the state court’s determination of the writ’s validity
would likely dispose of all claims in the federal case.
When the district court lifted the stay nearly three years
later, it permitted the parties to supplement their motions
for summary judgment, after which the court granted
interpleader for Merrill Lynch. The district court’s decision
permitting the case to proceed was contrary to its afore-
mentioned two observations because the case was proceed-
ing under a different theory than expected and the state
court decision had not disposed of all the claims.6 By
granting the motion, Scott complains, the district court
allowed Aaron’s new theory—replevin—to “tip-toe[] in
through the side door.” Scott asserts that the district court
should have dismissed the case because Aaron’s only
6
The able and experienced district court judge can hardly be
faulted for failing to be clairvoyant.
14 Nos. 07-4004 & 08-2020
theory of recovery in the complaint had been foreclosed
when the LaPorte Circuit Court conceded that its clerk
should never have issued Aaron the writ of execution. But
Aaron’s complaint, admittedly more focused on the writ of
execution, also named Scott as a defendant, alleged that he
had a judgment against her, and claimed to be entitled to
her accounts at Merrill Lynch. Scott wants the case to be
dismissed because Aaron’s complaint did not state a claim
—he did not use the word “replevin” or identify any other
workable legal theory. Under the notice pleading standard,
of course, a complaint need not contain legal theories. See,
e.g., O’Grady v. Vill. of Libertyville, 304 F.3d 719, 723 (7th Cir.
2002) (noting that although the plaintiff did not advance a
particular theory until the summary judgment stage, the
complaint was adequate to put the defendant on notice).
Aaron’s complaint gave Scott notice that he had a judg-
ment against her and he believed that he was legally
entitled to the money in her Merrill Lynch accounts.7 Even
7
The Supreme Court explained in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, ——, 127 S. Ct. 1955, 1964-65 (2007), that
“a plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do. . . .” (alteration in original) (internal quotation marks
omitted). Oddly, Scott uses this quotation to argue that in
Aaron’s complaint, “there is no label, let alone any of the
elements of a cause of action for replevin.” Aaron did not need
to provide labels and elements; he merely needed factual
allegations that were “enough to raise a right to relief above the
speculative level.” Id. at 1965.
Nos. 07-4004 & 08-2020 15
though the writ of execution should not have been issued,
Aaron’s claim was not frivolous from the outset, and the
district court did not err by considering Aaron’s claim
under another theory.8
Scott’s discussion about whether Aaron has stated a
claim diverts our attention from the question presented by
this appeal, though: Did Merrill Lynch have a real and
reasonable fear of double liability or conflicting
claims—claims which meet a “minimal threshold level of
substantiality”? Indianapolis Colts, 741 F.2d at 957-58. Aaron
and Scott have asserted conflicting claims against the assets
held by Merrill Lynch, and those claims easily meet the
standard for substantiality. Aaron has a judgment against
Scott and a state court’s determination that her funds are
not exempt from execution. Scott was the owner of the
funds and would like to possess them once again. Merrill
Lynch’s fear of conflicting claims was real and reasonable,
and the district court properly granted interpleader to
8
Scott also asserts that Aaron will never be able to prevail
under a replevin theory. She explains which elements of
replevin under Indiana law Aaron has not yet attempted to
show, e.g., under Indiana Code § 32-35-2-4, to recover for
replevin Aaron must file an affidavit showing that he is the
owner of the property or lawfully entitled to the property. This
argument is premature; both parties will have the opportunity
to prove entitlement to the funds in the second stage of inter-
pleader, which the district court stayed pending this appeal. To
prevail, Aaron will need to prove that he is entitled to the funds
under replevin or another legal theory, but his failure to do so
at this time is not fatal to Merrill Lynch’s interpleader claim.
16 Nos. 07-4004 & 08-2020
Merrill Lynch. See Union Cent. Life Ins. Co., 448 F.2d at 503(noting that interpleaded parties were proper because they
were adverse claimants who claimed or might claim to be
entitled to the funds held by the stakeholder); Metro. Life
Ins. Co. v. Whitler, 172 F.2d 631, 632 (noting that statutory
interpleader was appropriate where two individuals
claimed to be the beneficiary of a life insurance policy); cf.
Indianapolis Colts, 741 F.2d at 957 (noting that the parties
were not claimants to the same stake where one party
sought to assert ownership of the NFL franchise through
eminent domain but the other party had no conflicting
claim of ownership); Francis I. duPont & Co. v. O’Keefe, 365
F.2d 141, 142-43 (7th Cir. 1966) (noting that interpleader
was properly denied where the appellant faced no risk of
conflicting claims because an estate’s administrator was
vested with exclusive title to indebtedness appellant owed
to the decedent).
III. Attorneys’ Fees
Scott also argues that the district court erred by granting
Merrill Lynch attorneys’ fees. She objects to the timing of
the award and to the award being taken from the inter-
pleader stake, but she does not contest the amount of fees
awarded. We review the district court’s grant of attorneys’
fees for abuse of discretion. Cintas Corp. v. Perry, 517 F.3d
459, 469 (7th Cir. 2008).
Scott objects to the timing of the award because the
court’s order occurred while Scott’s appeal was pending.
Generally, a party’s filing of a notice of appeal divests the
district court of jurisdiction over those aspects of the case
Nos. 07-4004 & 08-2020 17
involved in the appeal. May v. Sheahan, 226 F.3d 876, 879
(7th Cir. 2000). Although district courts commonly award
attorneys’ fees while an appeal is pending, Apostol v.
Gallion, 870 F.2d 1335, 1337 (7th Cir. 1989), Scott contends
that the court should not have granted fees out of the
interpleader stake because her appeal turned on whether
interpleader should have been granted. Because inter-
pleader was proper, Scott’s concern is moot.
The parties do not disagree with the standard used by
the district court to award attorneys’ fees—a court may
award attorneys’ fees and costs to a prevailing stakeholder
in an interpleader action if the costs are determined to be
reasonable and the stakeholder’s efforts are not part of its
normal course of business. See Union Cent. Life Ins. Co. v.
Hamilton Steel Prods., Inc., 493 F.2d 76, 79 (7th Cir. 1974);
Travelers Indem. Co. v. Israel, 354 F.2d 488, 490 (2d Cir. 1965).
The district court found that Merrill Lynch was a disinter-
ested stakeholder whose efforts were not part of its normal
course of business. It also found that the case was complex
and involved extensive discovery and motions practice,
Merrill Lynch did nothing improper to prolong the pro-
ceedings, was not responsible for “the filing of multiple
lawsuits in multiple jurisdictions,” and acted in good faith
and with diligence throughout the federal litigation. The
court’s findings support its conclusion to award Merrill
Lynch attorneys’ fees.
The parties also agree that courts often award attorneys’
fees from the interpleader stake. First Trust Corp. v. Bryant,
410 F.3d 842, 856 (6th Cir. 2005) (“Despite the lack of
explicit statutory authorization, modern federal practice
18 Nos. 07-4004 & 08-2020
follows the traditional equity rule that gives the trial court
discretion to allow a disinterested stakeholder to recover
attorney’s fees and costs from the stake itself.” (internal
quotation marks omitted)). Scott contends that the court
had the discretion to—and should—make Aaron “pay the
freight.” The key word is “discretion,” and the court
properly exercised it. This argument, too, is without merit.
IV. Conclusion
We AFFIRM the district court’s grant of summary judg-
ment on the interpleader claims to Merrill Lynch, as well
as the award of attorneys’ fees.
12-18-08