UNITED STATES OF AMERICA FOR THE USE AND BENEFIT OF EL PASO J.A.G., INC. F/K/A EL PASO J.A.G., INC. v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA FOR THE USE
AND BENEFIT OF EL PASO J.A.G., INC. F/K/A
EL PASO J.A.G., INC.,
)
)
)
)
Plaintiff, 	)
)
v. 	) 	No. 1:25-cv-01220-JPH-MJD
)
FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, et al.,
)
)
)
Defendants. 	)
ORDER
This matter is before the Court on Plaintiff's Motion for Leave to File First Amended
Complaint, [Dkt. 34], and Plaintiff's Motion to Deposit Funds, [Dkt. 35]. For the reasons set
forth below, both motions are DENIED.
Plaintiff's Motion to Deposit Funds is brought pursuant to Federal Rule of Civil
Procedure 67(a), which provides:
If any part of the relief sought is a money judgment or the disposition of a sum of
money or some other deliverable thing, a party—on notice to every other party
and by leave of court—may deposit with the court all or part of the money or
thing, whether or not that party claims any of it. The depositing party must deliver
to the clerk a copy of the order permitting deposit.
Plaintiff seeks to deposit $29,389.20, which is the amount of a payment Defendant CMS
Corporation made to Plaintiff under the contract that is at issue in this case before this case was
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filed. Plaintiff alleges in its Complaint that CMS owed Plaintiff $207,527.08 under the contract;
CMS alleges that it only owed $29,389.20. Plaintiff has asked for instructions from CMS for
returning what Plaintiff deems to be an improper partial payment; CMS has not provided such
instructions. Thus, Plaintiff essentially seeks to reject the funds by depositing them with the
Court.
This is not a proper use of Rule 67. "'The core purpose of Rule 67 is to relieve a party
who holds a contested fund from responsibility for disbursement of that fund among those
claiming some entitlement thereto.'" Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541, 545 (7th
Cir. 2017) (quoting Alstom Caribe, Inc. v. George P. Reintjes Co., 484 F.3d 106, 113 (1st Cir.
2007)).
It follows logically that a district court should not grant a Rule 67 motion unless
the question of entitlement is genuinely in dispute. 	See, e.g., Gulf States Utils.
Co. v. Ala. Power Co., 824 F.2d 1465, 1475 (5th Cir. 1987). 	Moreover, the
entitlement dispute must be live; that is, the dispute must be extant at the time the
court is asked to grant the Rule 67 motion. See Mfrs. Hanover Overseas Capital
Corp. v. Southwire Co., 589 F. Supp. 214, 221 (S.D.N.Y. 1984).
Alstom Caribe, Inc., 484 F.3d at 113. Here there is no dispute about who is entitled to the
$29,389.20; both parties agree that Plaintiff is entitled to it. Plaintiff simply believes it is entitled
to an additional amount under the contract and does not wish to be seen as accepting a partial
payment as payment in full. The Court declines to incur the administrative burden of receiving
and holding funds in order to enable Plaintiff to fulfill what it apparently sees as its obligation
under the contract to return the partial payment. Therefore, Plaintiff's motion to deposit funds is
DENIED.
Because Plaintiff's proposed Amended Complaint assumes that the motion to deposit
funds will be granted and references the existence of deposited funds, Plaintiff's motion to amend
its complaint, [Dkt. 34], also is DENIED. However, the Court sua sponte enlarges the deadline
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for filing motions to amend the pleadings in this case to November 26, 2025, so Plaintiff may
file a new motion to amend its complaint that is consistent with this order if it wishes to do so.
SO ORDERED.
Dated: 14 NOV 2025
Distribution:
Service will be made electronically on all
ECF-registered counsel of record via email
generated by the Court's ECF system.
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