
    U.S. BANK TRUST, N.A., as Trustee, FOR LSF9 MASTER PARTICIPATION TRUST, Plaintiff, v. James S. DICKEY, Endeavor Capital Funding LLC f/k/a Capital Trust Funding LLC, and United States of America, Defendants. James S. Dickey, Counterclaim Plaintiff and Third-Party Plaintiff, v. U.S. Bank Trust, N.A., as Trustee, for LSF9 Master Participation Trust, Counterclaim Defendant, and 497 E. 4th Street LLC, and Andrew Schena, Third-Party Defendants.
    Civil Action No. 17-10009-PBS
    United States District Court, D. Massachusetts.
    Signed 11/20/2017
    Amie DiGiampaolo,' Sarah A. Billeri, Harmon Law Offices, P.C., Newton, MA, Anthony J. Coletti, Kurt R. McHugh, Harmon Law Offices, P.C., Newton Highlands, MA, Melissa Bruynell Manesse, Day Pit-ney LLP, Boston, MA, for Plaintiff and Counterclaim Defendant.
    James S. Dickey, Sudbury, MA, pro se.
    Rosemary A. Traini, Law Offices of Rosemary Traini LLC, Boston, MA, Philip L. Bednar, Steven M. Dean, U.S. Department of Justice, Washington, DC, for Defendants.
    Daniel W. Buckley, Tentindo Kendall Canniff & Keefe LLP, Jeffrey B. Loeb, Professional Corporation, Boston, MA, for Third-Party Defendants.
   ORDER OF DISMISSAL

Saris, C.J.

BACKGROUND

Plaintiff U.S. Bank Trust,. N.A., as Trustee for LSF9 Master Participation Trust (“U.S. Bank”), filed this interpleader action (Docket No. 1-3) in Suffolk County Superior Court, pursuant to an order by the Boston Housing Court. U.S. Bank sought to have the state court decide the rights of Defendants James S. Dickey, Endeavor Capital Funding LLC f/k/a Capital Trust Funding LLC (“Endeavor Capital”), and the United States of America with respect to $440,893.64 in surplus funds from a foreclosure sale. On January 4, 2017, Defendant United States of America removed the case to this Court. Dickey then filed a counterclaim against U.S. Bank and a third-party complaint against 497 E. 4th Street LLC and Andrew Sche-na (Docket No. 23). A hearing on the pending motions was held on November 20, 2017.

ORDER

This interpleader action is DISMISSED WITHOUT PREJUDICE. The Court has not addressed the case on the merits.’ However, based on the parties’ representations at the hearing, Defendants’ individual claims to the surplus funds "do not exceed $440,893.64. An inter-pleader action is not appropriate under these circumstances where the claimants are not adverse. See Hudson Sav. Bank v. Austin, 479 F.3d 102, 107 (1st Cir. 2007) (“[I]nterpleader is not available unless the defendants’ claims are ‘adverse’ to each other.”.(citation omitted)); see also State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 537, 87 S.Ct. 1199, 18 L.Ed.2d 270 (1967) (noting, that “federal interpleader was not intended to serve the function of a ‘bill of peace’ ”). For this reason, all claims and counterclaims in this action are DISMISSED WITHOUT PREJUDICE.

SO ORDERED.  