UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

PETER FERRARO, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) CAUSE NO.: 2:14-CV-396-TLS 

 ) 

JOHN A. HUMPHREY, AMERICAN ) 

NATIONAL SERVICES CORP., ) 

MASCO CORP., and OLD REPUBLIC ) 

INSURANCE COMPANY, ) 

 ) 

 Defendants. ) 

OPINION AND ORDER

 The Plaintiff, Peter Ferraro, filed a complaint for declaratory judgment in state court on 

September 8, 2014, which the Defendants removed to this Court on November 3, 2014. This 

matter is before the Court on the Motion to Remand [ECF No. 9] filed by the Plaintiff on 

November 7, 2014. The Plaintiff contends that this case must be remanded back to state court 

due to procedural defects in the Defendants’ removal of this case to federal court. Defendant 

American National Services Corporation (ANSC), joined by co-Defendants Masco Corporation 

(“Masco”) and Old Republic Insurance Company (“Old Republic”), filed their Response [ECF 

No. 12] on November 19, 2014. The Plaintiff filed his Reply [ECF No. 13] on November 25, 

2014. For the following reasons, the Plaintiff’s Motion to Remand will be denied. 

BACKGROUND

 On June 8, 2006, the Plaintiff brought an action for personal injuries against Defendant 

John A. Humphrey in the Superior Court of Lake County, Indiana, under Cause No. 5D05-0606-

CT-116 for injuries suffered during a June 9, 2004, automobile collision. On January 4, 2007, the 
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Plaintiff obtained a default judgment against Humphrey for $372,543.41. The Plaintiff then 

instituted proceedings supplemental naming Masco as garnishee defendant, alleging that 

Humphrey was an employee of Masco’s wholly owned subsidiary, ANSC, and was driving 

Masco’s vehicle at the time of the collision. 

 On September 8, 2014, the Plaintiff commenced an action for declaratory judgment in 

Lake Superior Court under Cause No. 45D01-1409-PL-95 against Defendants Humphrey, 

Masco, ANSC, and Old Republic, the insurer of the vehicle Humphrey drove at the time of the 

collision. The Plaintiff completed service on Humphrey on September 18, 2014, on Masco on 

September 19, 2014, and on Old Republic on September 22, 2014. Service on ANSC was 

accomplished via alias summons on October 16, 2014. On November 3, 2014, ANSC filed a 

Notice of Removal [ECF No. 2], along with consents to removal executed by Masco and Old 

Republic, bringing the case before this Court. At issue is whether the consent of co-Defendant 

Humphrey was also necessary to effectively remove this case to this Court. From the Plaintiff’s 

perspective, the executed consent to removal by Humphrey is a necessary procedural 

requirement for effective removal before this Court, requiring a remand of this action back to the 

Lake Superior Court. The Defendant argues that Humphrey’s consent is unnecessary because he 

is merely a nominal defendant in this case. Thus, the Defendant argues that all necessary 

elements were satisfied for removal and that this Court has proper jurisdiction. 

DISCUSSION

 The Plaintiff makes two arguments in support of his Motion to Remand. First, the 

Plaintiff argues that removal requires the consent of all defendants, making the lack of consent 

by Humphrey, whom the Plaintiff argues is not a nominal defendant, a procedural error requiring 
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remand. Second, the Plaintiff argues that the removal of this action was untimely. The Court will 

address these issues in reverse order. 

A. Timeliness of Removal 

 The basis of the Plaintiff’s timeliness argument centers on the so-called “first served 

defendant” rule, which held that a removal petition must be filed within 30 days of the service of 

the first defendant in multi-defendant litigation. Although this rule was once applied in a 

minority of jurisdictions, the Defendants correctly cite the Federal Courts Jurisdiction and Venue 

Clarification Act, which subsequently rewrote the language of 28 U.S.C. § 1446(b) with respect 

to the time to file a notice of removal. See Pub. L. No. 112–63, 125 Stat. 758 (2011). Section 

1446(b)(2)(B) and (C) provide: 

(B) Each defendant shall have 30 days after receipt by or service on that 

defendant of the initial pleading or summons described in paragraph (1) to file the 

notice of removal. 

(C) If defendants are served at different times, and a later-served defendant files a 

notice of removal, any earlier-served defendant may consent to the removal even 

though that earlier-served defendant did not previously initiate or consent to 

removal. 

Thus, the plain language of the statute allows each defendant 30 days after receipt of service to 

file a notice of removal. See also Pietrangelo v. Alvas Corp., 686 F.3d 62, 64 (2d Cir. 2012) 

(noting that the December 7, 2011, amendents to § 1446 codified the last-served defendant rule). 

Here, ANSC was the last-served defendant, with service completed on October 16, 2014. ANSC 

then filed its notice of removal on November 3, 2014, with the 30-day time period for doing so. 

28 U.S.C. § 1446(b). Therefore, removal of this action was timely (so long as all other 

requirements for removal are met, which the Court will now address). 
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B. Nominal Defendant 

 In order to effectively remove an action to federal court, “all defendants who have been 

properly joined and served must join in or consent to the removal of the action.” 28 U.S.C. 

§ 1446(b)(2)(A); MB Fin., N.A. v. Stevens, 678 F.3d 497, 499 (7th Cir. 2012) (“Removal requires 

the consent of all defendants.”). At issue is whether all defendants joined or consented to 

removal. In its Notice of Removal, Defendant ANSC explicitly indicated that co-Defendants 

Masco and Old Republic consented to the motion, and that ANSC did “not [seek] the consent of 

Humphrey, as he is a nominal defendant.” (ECF No. 1, at 5 (citing case law in support of the 

position that consent of a nominal defendant is not required for removal).) The parties do not 

dispute the relevant law; they agree that consent from a nominal defendant is unnecessary to 

satisfy the requirement that all defendants join or consent to removal. See, e.g., Benson v. 

Unilever U.S., Inc., 884 F. Supp. 2d 708, 714 (S.D. Ill. 2012) (“[R]emoval generally requires the 

consent of all defendants—but only indispensable defendants. The consent of so-called nominal 

or formal parties is not required.”) (citing Ryan v. State Bd. of Elections of the State of Ill., 661 

F.2d 1130, 1134 (7th Cir. 1981)). The issue is whether Humphrey is a nominal defendant. The 

Plaintiff argues that Humphrey is not a nominal defendant, meaning his lack of consent is fatal to 

the Defendants’ notice of removal. 

A defendant is nominal if there is “no reasonable basis for predicting it will be held 

liable.” Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir.1993) (citing 14A Charles Alan 

Wright, et al., Federal Practice and Procedure § 3731 n. 10 (1985)), overruled on other grounds, 

Carroll v. Stryker Corp., 658 F.3d 675, 680 n.1 (7th Cir. 2011). In determining the “real party in 

interest,” courts are to, “reference [ ] the essential nature and effect of the proceedings.” Adden v. 
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Middlebrooks, 688 F.2d 1147, 1150 (7th Cir. 1982). “It is appropriate for a federal court to 

consider state law as a factor in determining . . . the real party in interest.” Id. at 1152. 

The Defendants argue that Humphrey’s liability has already been established, as reflected 

in the state court’s default judgment in the amount of $372,543.41. Therefore, from the 

Defendantss perspective, Humphrey’s liability cannot be relitigated a second time. (Resp. 3, ECF 

No. 12 (citing Marrese v. Am. Acad. Of Orthopaedic Surgeons, 470 U.S. 373 (1985) (discussing 

claim preclusion)). Rather, the Defendants assert that this action is merely seeking a declaratory 

judgment as to the liability of the other defendants to pay the judgment already entered against 

Humphrey. 

The Plaintiff asserts that the “question in this action is whether Humphrey’s relationship 

to ANSC and Masco at the time of the collision gives rise to liability by ANSC or Masco, or Old 

Republic as their insurer.” Br. in Support of Mot. to Remand 4, ECF No. 10. Thus, Humphrey 

cannot be a nominal party because, the Plaintiff argues, “Humphrey needs to be named as a party 

for full liability to be apportioned, either on him alone or on some or all named defendants.” Id. 

The Plaintiff’s apportionment argument is unpersuasive, however, because as the 

Defendants have pointed out, Humphrey’s liability is already established for the full amount of 

the default judgment against him. In his Complaint, the Plaintiff asserts: 

After the judgment against Humphrey issued, a dispute arose between the parties 

to this action as to whether Plaintiff could collect the judgment from proceeds of 

the [insurance] Policy. Accordingly, Plaintiff has an interest under the written 

contract that is the Policy, and a declaration of this court is needed to determine 

coverage and declare the parties;’ respective rights and legal obligation relating to 

it. 

Compl. ¶ 13, ECF No. 1-1. Thus, the Plaintiff’s interest in the insurance policy as a means of 

satisfying the judgment against Humphrey is proper because “under federal and Indiana law . . . 

an injured party can have a legally protectable interest in an alleged tortfeasor’s insurance policy 
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sufficient to support Article III jurisdiction and the discretionary exercise of power under the 

Declaratory Judgments Act.” Nat’l Cas. Co. v. Floyd Cnty. Bd. of Comm’rs, No. NA 01-182-CH/K, 2002 WL 31045373, at *3 (S.D. Ind. Aug. 29, 2002) (citing Bankers Trust Co. v. Old 

Republic Ins. Co., 959 F.2d 677, 682 (7th Cir. 1992); Truck Ins. Exch. v. Ashland Oil, Inc., 951 

F.2d 787, 789 (7th Cir. 1992); Cmty. Action of Greater Indianapolis, Inc. v. Ind. Farmers Mutual 

Ins. Co., 708 N.E.2d 882, 885 (Ind. Ct. App. 1999)). However, the Plaintiff does not show how 

his interests are adverse to the interests of Humphrey in this action. Humphrey’s liability need 

not be apportioned, for it has already been established in full, and Humphrey’s interests in 

having the proceeds of the insurance policy satisfy as much of that judgment as possible is 

aligned with the Plaintiff’s interests. 

“[T]he parties must be aligned according to their ‘attitude towards the actual and 

substantial controversy.’” City of Indianapolis v. Chase Nat'l Bank, 314 U.S. 63, 75 (1941) 

(quoting Sutton v. English, 246 U.S. 199, 204 (1918)). “Realignment is proper when the court 

finds that no actual, substantial controversy exists between parties on one side of the dispute and 

their named opponents . . . .” Am. Motorists Ins. Co. v. Trane Co., 657 F.2d 146, 149 (7th Cir. 

1981); City of Indianapolis, 314 U.S. at 80 (“The doctrine of realignment permits and requires a 

nominal defendant to be treated as a plaintiff for the purpose of defining the real 

controversy . . . .”) (Jackson, J., dissenting). In deciding whether there is an actual, substantial 

controversy, the court may look beyond the pleadings. Fid. & Deposit Co. v. City of Sheboygan 

Falls, 713 F.2d 1261, 1264 (7th Cir. 1983); Am. Motorists, 657 F.2d at 149. The decision must 

be based on the facts as they existed at the time the action was commenced. See Am. Motorists, 

657 F.2d at 149. 
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 The “real controversy” in this action for declaratory judgment is whether ANSC, Masco, 

and/or Old Republic must use the proceeds of the insurance policy to satisfy the judgment 

against Humphrey. The Court finds that Defendant Humphrey is properly realigned as a plaintiff 

because no actual, substantial controversy exists between the Plaintiff and Humphrey. 

Humphrey’s interests are aligned with the Plaintiff’s interests. It is in Humphrey’s interest for the 

proceeds of the insurance policy to satisfy as much of the judgment against Humphrey as 

possible. Other cases have reached similar conclusions. See Truck Ins. Exch. v. Ashland Oil, Inc., 

951 F.2d 787, 788 (7th Cir. 1992) (concluding that insured and insured’s victims’ interests 

should be aligned in action by plaintiff insurer seeking declaratory judgment that it had no duty 

to defend or indemnify the insured or the insured’s victims); Davis v. Carey, 149 F. Supp. 2d 

593, 596 (S.D. Ind. 2001) (concluding that insured and insured’s victim’s interests should be 

aligned in action by plaintiff insured’s victim seeking declaratory judgment to satisfy judgment 

against insured through insurance policy and therefore denying motion to remand by plaintiff); 

Randolph v. Employers Mut. Liab. Ins. Co., 260 F.2d 461, 464 (8th Cir. 1958) (concluding 

insured should be aligned as a plaintiff because “it would be to [his] interest to have the 

judgment against him satisfied by his insurer.”). 

 The Plaintiff argues that Humphrey’s interest in the subject matter of this action is 

“‘substantial’ and ‘safeguards’ his rights as a person potentially covered by the policies at issue.” 

(Reply 2, ECF No. 13 (citing Lutheran Hosp. of Ft. Wayne, Inc. v. Dept. of Publ Welfare, 397 

N.E.2d 638, 646 (Ind. Ct. App. 1979) (stating that a party seeking to bring a declaratory 

judgment “must demonstrate a substantial present interest in the relief sought and that a question 

has arisen affecting their rights which ought to be decided in order to safeguard such rights”)).) 

The Plaintiff argues that because Humphrey’s interest is “substantial,” he cannot be a nominal 
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defendant. Indeed, the Plaintiff argues that “Humphrey would be entitled to bring this very action 

on his own.” (Reply 2, ECF No. 13.) That is correct. Humphrey could have brought an action 

seeking a declaratory judgment that the proceeds of the insurance policy be used to satisfy the 

judgment against him, and this fact provides further support that he should be realigned with the 

plaintiff and is merely a nominal defendant in this action. Humphrey and the Plaintiff share the 

same “attitude towards the actual and substantial controversy,” namely, whether the proceeds of 

the insurance policy should be used to satisfy the default judgment the Plaintiff obtained against 

Humphrey in state court. City of Indianapolis, 314 U.S. at 75. Therefore, the Court finds that 

realignment is proper, for no actual, substantial controversy exists between the Plaintiff and 

Humphrey in this action. See Am. Motorists, 657 F.2d at 149. 

 Co-Defendant ANSC’s timely notice of removal explicitly indicated that co-Defendants 

Masco and Old Republic consented to the motion, and that ANSC did “not [seek] the consent of 

Humphrey, as he is a nominal defendant.” (ECF No. 1, at 5.) The Court finds that Humphrey is a 

nominal defendant in this action. Therefore, all defendants have timely consented to the removal 

of this action before this Court. 

CONCLUSION

 For the foregoing reasons, the Court DENIES the Plaintiff’s Motion to Remand [ECF No. 

9]. 

SO ORDERED on February 18, 2015. 

 s/ Theresa L. Springmann 

 THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT 

 FORT WAYNE DIVISION