Butler v. Colgate-Palmolive Company, Inc. et al
MEMORANDUM AND ORDER sustaining in part 68 Motion for Reconsideration. Signed by Chief Judge Kathryn H. Vratil on 6/1/2011. (nf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JUDY BUTLER MCHENRY, Administrator
of the Estate of Leo E. Butler,
FRANKLIN BURCH, Administrator of
the Estate of Kenneth Lee Butler,
MEMORANDUM AND ORDER
Judy Butler McHenry, administrator of the Estate of Leo E. Butler, brought suit against Franklin
Burch, administrator of the Estate of Kenneth Lee Butler, and Colgate-Palmolive Company, Inc. seeking
a declaratory judgment that (1) the Employee Retirement Income Security Act of 1974 (“ERISA”), 29
U.S.C. §§ 1001-1461, preempts state intestate succession laws, (2) an order from the District Court of
Wyandotte County, Kansas cannot countermand Kenneth Lee Butler’s beneficiary designation under
the Colgate Palmolive Employees Retirement Plan and (3) as the designated beneficiary of Kenneth Lee
Butler’s pension benefits, plaintiff is entitled to certain pension proceeds. Under 28 U.S.C. § 1335,
Colgate-Palmolive filed cross-claims and counter-claims in interpleader. On December 15, 2009, it
deposited $276,828.82 in the court registry pending disposition of the case. It then sought and received
a dismissal. See Doc. #50.
On December 17, 2010, the Court sustained Burch’s motion for summary judgment, finding that
under the Rooker-Feldman doctrine it lacked subject matter jurisdiction over plaintiff’s claim.1
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and Dist. of Columbia Ct. of App.
v. Feldman, 460 U.S. 462 (1983).
Although plaintiff and defendant had filed cross-motions for summary judgment, neither of them
addressed the interpleader claim or sought distribution of the interpleaded funds, and Colgate-Palmolive
had been dismissed from the case. The Court therefore directed the Clerk to return the interpleader
funds to Colgate-Palmolive. This matter is now before the Court on Colgate-Palmolive Company’s
Motion To Reconsider And Amend Order With Brief In Support (Doc. #68) filed January 13, 2011.
Under Rule 59(e), Fed. R. Civ. P., Colgate-Palmolive seeks partial reconsideration and asks the Court
to keep the interpleader funds in its registry pending an order of distribution.2
Colgate-Palmolive argues that even though the Court lacks subject matter jurisdiction over
plaintiff’s claims, it retains original jurisdiction over the interpleader claim and should not return the
funds. Specifically, Colgate-Palmolive argues that it has a viable interpleader claim under 28 U.S.C.
§ 1335 because (1) Rooker-Feldman does not apply to it since it was not a party to the state court action
and (2) it will be subjected to multiple liability if the Court returns the interpleader funds.3
A party seeking to alter or amend a judgment pursuant to Rule 59(e) must establish (1) an
intervening change in the controlling law; (2) the availability of new evidence that could not have been
obtained previously through the exercise of due diligence; or (3) the need to correct clear error or
On January 11, 2011, plaintiff appealed the Court’s summary judgment order to the Tenth
Circuit Court of Appeals. See Doc. #65. On January 26, 2011, the Tenth Circuit abated the appellate
case pending this Court’s disposition of this motion for reconsideration. See Doc. #69.
On February 3, 2011, without leave of court, plaintiff filed an untimely response to
Colgate-Palmolive’s motion to reconsider. Under D. Kan. Rule 6.1(d)(1), responses to non-dispositive
motions such as those filed under Rule 59(e), Fed. R. Civ. P., must be filed and served within 14 days.
See e.g. Shaw v. Richardson, No. 09-3178, 2010 WL 4792423, at *1 (D. Kan. Nov. 17, 2010); Sichko
v. Sec’y of Navy, No. 08-2475-JTM, 2009 WL 366605, at *1 (D. Kan. Feb. 13, 2009). Plaintiff’s
response was due on January 27, 2011, and the Court does not consider it.
prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000).
As noted, Colgate-Palmolive asserts that the Court erred in ordering that the interpleader funds
be returned because (1) Rooker-Feldman does not apply to it since it was not a party to the underlying
state court action and (2) it will be subject to multiple liability if the Court returns the funds to it.
The Court has located no authority which specifically addresses the unusual procedural posture
of this case – i.e. a case in which the Court lacks jurisdiction over the originating complaint under
Rooker-Feldman, the interpleader claim involves the same subject matter as the claims over which the
Court lacks jurisdiction, and the plaintiff on the interpleader claims is out of the case.4 In such a
situation, as a practical matter, no parties are available to pursue any claim. That is why the Court
entered judgment and directed the Clerk to return the interpleaded funds to Colgate-Palmolive.
As Colgate-Palmolive notes, however, the Court did have original, independent jurisdiction over
its cross-claim and counter-claim in interpleader under 28 U.S.C. § 1335.5 Dismissal of a complaint
generally does not preclude adjudication of a counter-claim in interpleader over which the Court has an
independent basis of jurisdiction. See, e.g., Bianchi v. Walker, 163 F.3d 564, 569 (9th Cir. 1998)
The cases cited by Colgate-Palmolive provide only marginal help. In Paine Webber v.
Arstk, Inc., 98 CIV 3162, 1999 WL 199065, at *3 (S.D.N.Y. Apr. 9, 1999), the district court held
without analysis that Rooker-Feldman did not apply to the interpleader action before it. In Lance v.
Dennis, 546 U.S. 459, 465-66 n.2 (2006), the Supreme Court held that the district court had improperly
conflated Rooker-Feldman with preclusion law when it applied Rooker-Feldman against a nonparty.
In Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1235 (10th Cir. 2006), however, the Tenth Circuit
construed Lance as “explicitly” holding that Rooker-Feldman “does not apply against nonparties to the
prior judgment in state court.”
Under 28 U.S.C. § 1335, district courts have original jurisdiction over any civil action
of interpleader filed by a party which possesses $500 or more, if two or more adverse parties of diverse
citizenship claim entitlement to the money, so long as the party filing the claim in interpleader deposits
the money into the registry of the court.
(district court properly exercised jurisdiction over interpleader counter-claim though it lacked subject
matter jurisdiction over plaintiff’s complaint for writ of mandamus); c.f. Lennon v. Scott & Stringfellow,
LLC, 2010 WL 1962672, at *7 (N.D. Tex. May 14, 2010) (district court remanded interpleader counterclaim filed after removal from state court because (1) plaintiff had alleged defendant was more than
mere stakeholder and defendant could not use federal interpleader statute to create federal jurisdiction
when none existed at time of removal and (2) court lacked subject matter jurisdiction over counter-claim
because of the probate exception, which prohibits federal jurisdiction over claims pending in probate
court).6 See also Tribble v. Chuff, 642 F. Supp.2d 737, 747-48 (E.D. Mich. 2009) (district court
dismissed counter-claims for lack of subject matter jurisdiction under Rooker-Feldman and analyzed
declaratory judgment claims within the context of the interpleader action). In those cases, however,
either the interpleader plaintiff remained in the case to pursue the interpleader claim, or the parties with
claims against the interpleaded funds asserted them.
Here, the Court allowed Colgate-Palmolive to interplead the disputed funds and – on its motion
– dismissed it from the case. At that time, the Court understood that Colgate-Palmolive was a
The probate exception stands for the principle that when one court is exercising in rem
jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. Marshall
v. Marshall, 547 U.S. 293, 311 (2006). It precludes federal courts from disposing of property that is in
the custody of a state probate court. Id. at 312. It does not preclude federal courts from adjudicating
matters outside those confines and otherwise within federal jurisdiction.
In this interpleader action, the parties did not ask the Court to dispose of property which
belonged to an estate; rather, they sought to determine whether the assets in question belonged to
plaintiff or defendant, and in what proportion. United States v. Major Oil Corp., 583 F.2d 1152, 1159
(10th Cir. 1978) (sole purpose of interpleader to determine who is entitled to fund and in what
proportion). Thus it appears that the probate exception does not apply in this case. See Ashton v.
Josephine Bay Paul & C. Michael Paul Found. Inc., 918 F.2d 1065, 1072 (2d Cir. 1990) (probate
exception did not preclude federal jurisdiction over interpleader action under 28 U.S.C. § 1335 because
(1) question was whether assets were property of estate, not how to divide estate property; and (2) case
for exercising federal jurisdiction notwithstanding probate exception is stronger in interpleader actions
than ordinary diversity cases).
disinterested stakeholder and that it no longer wished to participate in the litigation. Later, the Court
dismissed plaintiff’s claims, which effectively resulted in dismissal of Colgate-Palmolive’s cross-claim
and counter-claim in interpleader, because no party remained in the case to prosecute them. If ColgatePalmolive has re-thought its position as a disinterested stakeholder and wishes to actively pursue its
interpleader claims, it should file a motion to vacate the order of dismissal which the Court entered on
May 11, 2010. If the Court grants such relief, Colgate-Palmolive can pursue its interpleader claims
without regard to the dismissal for lack of subject matter jurisdiction over plaintiff’s claims against
defendant. In that event, the Court may re-align Colgate-Palmolive as plaintiff and, because of the
lengthy history of this case, refer it to the United State Magistrate Judge for expedited pretrial
proceedings to determine the rights of plaintiff and defendant to the money. See id. at 748. If ColgatePalmolive does not file such a motion by June 10, 2011, the Clerk will return the interpleaded funds as
IT IS THEREFORE ORDERED that Colgate-Palmolive Company’s Motion To Reconsider
And Amend Order With Brief In Support (Doc. #68), filed January 13, 2011 be and hereby is
SUSTAINED in part. The Court suspends the portion of the order of December 17, 2010 which
directed the Clerk to return the interpleaded funds to Colgate-Palmolive, pending further order of the
IT IS FURTHER ORDERED that the Clerk supplement the preliminary record on appeal by
transmitting to the Tenth Circuit Court of Appeals a copy of this order, together with a copy of the
related docket entries. Plaintiff is hereby directed to notify the Tenth Circuit Court of Appeals of
the Court’s holding within ten days of this order.
Dated this 1st day of June, 2011 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge
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