Opinion
No. 01-11.
January 23, 2002.
On order of the Court, this is to advise that the Court is considering an amendment of Rule 3.603 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment. The Court welcomes the views of all who wish to address the form or the merits of the proposal or to suggest alternatives. Before adoption or rejection, the proposal will be considered by the Court at a public hearing. Notice of future public hearings will be provided by the Court and posted on the Court's website, www.supremecourt.state.mi.us.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The present language of Rule 3.603 would be amended as indicated below.]
Rule 3.603 Interpleader.
(A)-(D) [Unchanged.]
(E) Actual Costs. The court may award actual costs to an interpleader plaintiff. For the purposes of this rule, actual costs are those costs taxable in any civil action, and a reasonable attorney fee as determined by the trial court.
(1) The court may order that the plaintiff's actual costs of filing the interpleader request, tendering the disputed property to the court, and participating in the case as a disinterested stakeholder be paid from the disputed property or by another party.
(2) If the plaintiff incurs actual costs other than those described in subrule (1) due to another party's unreasonable litigation posture, the court may order that the other party pay those additional actual costs.
(3) An award made pursuant to this rule may not include reimbursement for the actual costs of asserting the plaintiff's own claim to the disputed property, or of supporting or opposing another party's claim.
(4) The court may consider other factors in deciding whether to award actual costs pursuant to this rule.Staff Comment: The "American Rule" requires that litigating parties pay their own attorney fees unless a statute, court rule, or generally recognized common-law exception authorizes the court to award attorney fees. Neither MCR 3.603, Michigan's interpleader rule, nor its federal counterpart, FR Civ P 22, authorizes awarding attorney fees. But Michigan and federal decisions have approved awards of reasonable attorney fees to interpleader plaintiffs. Proposed new subrule (E) would codify those decisions and provide guidelines. See Star Transfer Line v General Exporting Co, 308 Mich. 86, 119-120 (1944), GRP, Ltd v United States Aviation Underwriters, Inc, 70 Mich. App. 671, 681 (1976), aff'd 402 Mich. 107 (1978), and Terra Energy, Ltd v Michigan, 241 Mich. App. 393 (2000). See also In re Mandalay Shores Cooperative Housing Ass'n, Inc, 21 F.3d 380, 382-383 (CA 11, 1994), and Trustees of the Directors Guild of America v Tise, 234 F.3d 415 (CA 9, 2000).
Whether to award "actual costs," which are defined as including a reasonable attorney fee, would be a discretionary decision for the trial judge. Subrule (E)(4) would allow a judge to consider the factors that are discussed in the cases cited above, and others.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court clerk in writing or electronically by May 1, 2002. P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@jud.state.mi.us. When filing a comment, please refer to file 01-11.