The Volokh Conspiracy

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Dr. Braid Sues S.B. 8 Plaintiffs as Interpleader Defendants in Illinois Federal Court

Who had statutory interpleader on their S.B. 8 bingo card?


Dr. Alan Braid of San Antonio performed an abortion in violation of S.B. 8. He was sued by plaintiffs in Arkansas and Illinois. Later, an anti-abortion activist from Texas intervened in the Arkansas suit.

Now, Dr. Braid sued the Arkansas, Illinois, and Texas defendants in Illinois federal court. The suit is premised on statutory interpleader. Please raise your hand if you had statutory interpleader on your S.B. 8 bingo card.

Here is a brief overview of this CivPro chestnut.

First, 28 U.S.C. § 1335 only requires minimal diversity and $500 in damages. It provides, in part:

"The district courts shall have original jurisdiction of any civil action of interpleader or in the nature of interpleader filed by any person . . . having in his . . . custody or possession money or property of the value of $500 or more . . . if . . . two or more adverse claimants, of diverse citizenship . . . are claiming or may claim to be entitled to such money or property…."

Second, 28 U.S.C. § 1397 permits venue where any of the claimants reside:

Any civil action of interpleader or in the nature of interpleader under section 1335 of this title may be brought in the judicial district in which one or more of the claimants reside.

Here, one of the interpleader defendants is in Illinois. Thus, Illinois federal district court is a proper venue.

Third, 28 U.S.C. § 2361 allows for nationwide service of process:

In any civil action of interpleader or in the nature of interpleader under section 1335 of this title, a district court may issue its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court.

The usual rules of personal jurisdiction are not relevant here. It does not matter that the Arkansas and Texas defendants have no connection to the Illinois federal forum.

Moreover Section 2361 permits the district court to enter injunctions, presumably against a state law:

Such district court shall hear and determine the case, and may discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment.

Fourth, FRCP Rule 22 lays out the process for statutory interpleader:

(1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though:

(A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or

(B) the plaintiff denies liability in whole or in part to any or all of the claimants.

(2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim.

S.B. 8 permits damages $10,000 and up. But only one plaintiff can secure those damages. There is, in effect, a race to the courthouse. The first damages award precludes other plaintiffs from recovering against Braid for the single abortion. Braid argues that this potential judgment forms the basis for statutory interpleader jurisdiction:

The Court has jurisdiction because Dr. Braid brings this Complaint for Interpleader and Declaratory Judgment pursuant to 28 U.S.C. §§ 1335, 1397, and 2361, with respect to the parties' competing claims to the $10,000 minimum penalty sought in Interpleader Defendants' respective complaints filed pursuant to SB8, Tex. Health & Safety Code § 171.208(a).

I need to research this topic more. I am not certain that fighting over a potential court judgment is consistent with the traditional understanding of interpleader. The statute refers to money in the party's "custody or possession." No one has possession of that money until there is a final judgment. If the statute is unconstitutional in this context, the plaintiffs are entitled to $0. Moreover, given the unique design of S.B. 8, every American is a potential plaintiff. Thus, under Braid's theory of interpleader, any American could be subject to suit.

Finally, even if this suit is successful, the judgment would only run between Dr. Braid and the defendants. It would not preclude anyone else from bringing suit. Indeed, declaring S.B. 8 as "unconstitutional" is difficult in light of its massive severability clause. This hydra cannot be stopped.

Update: Howard Wasserman explains why the interpleader suit does not work:

Teddy Rave (Texas) floated the impleader idea on the Civ Pro Listserv and it generated some discussion. The better view, I believe, is that it does not work. A potential judgment in an ongoing litigation is generally not the type of res that can be the basis for an impleader–otherwise, anyone facing a state-court suit for breach of contract and liquidated damages would file an interpleader action over the liquidated damages as a res, creating a federal forum. The res has not come into existence. Moreover, there is no definite res because there is no definitive judgment. Braid deposited $ 10,000 with the court, but that is the minimum damages, not the settled res. The three do not have competing claims on a single pot of money. Rather, all have state-law claims against him and are in a race to judgment, with the first entitled to the judgment and the others out of luck. I also believe Colorado River abstention may kick-in, with federal courts denying this attempt to create parallel federal litigation to an ongoing state case involving the same issues.