UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

VALLEY FORGE INSURANCE

COMPANY, 

 PLAINTIFF, 

 VS. 

HARTFORD IRON & METAL, INC.

AND ALAN B. GOLDBERG (DBA

HARTFORD METAL & IRON), 

 DEFENDANTS. 

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CAUSE NO. 1:14-CV-6-RLM-SLC

OPINION and ORDER 

 Defendant and counterclaim plaintiff Hartford Iron moves for a declaration 

of rights and asks the court to “fashion remedies” implementing the court’s 

December 2015 order denying Valley Forge’s motion for partial summary 

judgment. 

Hartford Iron’s motion chiefly concerns the storm water control system 

environmental contractor Keramida, Inc. has proposed. Keramida developed 

plans for a storm water control basin to resolve the ongoing environmental 

violations at Hartford Iron’s scrap yard, and the Indiana Department of 

Environmental Management approved the Keramida plan. Hartford Iron 

negotiated payment and work terms with Keramida, and submitted those terms 

to its insurer Valley Forge. Hartford Iron demands that Valley Forge immediately 

fund the Keramida system on the terms that Keramida and Hartford Iron 

reached. Valley Forge concedes that the Keramida plan might be an appropriate 
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remediation measure, and accepts that it has the obligation to fund the 

Keramida system on commercially reasonable terms. But Valley Forge objects to 

several of the payment terms Hartford Iron and Keramida propose, and wants to 

add additional terms (such as mandatory arbitration of disputes and the work 

proceeding on a “cost-not-to-exceed” basis) before paying for the system. 

This is the third time Hartford Iron has asked the court to step in and 

declare the parties’ rights regarding site remediation projects. In February 2015, 

Hartford Iron responded to Valley Forge’s motion for a preliminary injunction by 

filing a “cross-motion for declaration of defense rights” asking the court to 

declare that Hartford Iron had the right to direct the site remediation – including 

the Keramida plan. That motion didn’t specify a legal basis for the court to grant 

the relief Hartford Iron sought, so the court struck the motion on its own motion. 

The court noted that while the Declaratory Judgment Act permits a court to 

declare the rights of interested parties upon “an appropriate pleading,” Hartford 

Iron’s cross-motion wasn’t a pleading under the Federal Rules of Civil Procedure 

and the issues it raised were outside the scope of the preliminary injunction 

hearing. 

Hartford Iron tried again in September 2015, filing an emergency motion 

for declaratory judgment regarding the Keramida system and asking for a 

hearing. The court held a hearing on October 22, but didn’t reach the merits of 

Hartford Iron’s request for declaratory judgment because the request was 

procedurally improper. Hartford Iron suggested that the Declaratory Judgment 
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Act gave the court freestanding authority to declare the rights of the parties 

outside a summary judgment or preliminary injunction context, but the court 

disagreed and noted that Hartford Iron hadn’t identified any procedural 

framework or legal standard that the court could apply in resolving a declaratory 

judgment claim prior to trial. 

Now Hartford Iron is back for a third try, again asking that the court order 

Valley Forge to immediately fund the Keramida system on Hartford Iron’s 

preferred terms. After denying Hartford Iron’s last motion for declaratory relief, 

the court denied Valley Forge’s motion for summary judgment and held that a 

conflict of interest prevents Valley Forge from controlling the defense or 

remediation of the scrap yard as a matter of law. Hartford Iron points to this 

ruling as a basis for the court to resolve the Kermida dispute once and for all: 

because Valley Forge can’t control the remediation, Hartford Iron must have the 

right to pursue remediation on its own at Valley Forge’s expense. So Hartford 

Iron seeks a declaration that: (1) it may take commercially reasonable steps to 

implement the Keramida system at Valley Forge’s expense; (2) it may enter into 

a second Agreed Order with IDEM to resolve the enforcement actions related to 

the most recent stormwater discharges; and (3) Valley Forge must set up an 

ethical wall to separate staff paying for the Keramida system from anyone 

involved in this litigation (and anyone who has communicated with anyone 

involved in this litigation). Because the court’s summary judgment order found 

that a conflict of interest prevents Valley Forge from controlling the remediation, 
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Hartford Iron argues, the right to make decisions about the Keramida system 

falls to Hartford Iron by default and further declaratory relief is needed to 

effectuate that right. 

As with its prior two motions seeking declaratory judgment, Hartford Iron’s 

new motion doesn’t clearly identify a legal basis for the relief it requests. Instead 

of moving for summary judgment, seeking a preliminary injunction, or taking 

some other procedurally familiar step to secure the relief it wants, Hartford Iron 

simply asks for relief and suggests three alternative “lights” in which the court 

could consider its motion: as a request for the court to “fashion remedies” as 

permitted by the Declaratory Judgment Act, as a motion for partial summary 

judgment on portions of Hartford Iron’s declaratory judgment counterclaims, or 

as a motion for clarification of the parties’ legal standing brought with Valley 

Forge’s consent. Rather than responding to the motion directly, Valley Forge 

opposed Hartford Iron’s request by filing two motions of its own. The first Valley 

Forge motion asks the court to strike Hartford Iron’s motion. The second asks 

the court to deny Hartford Iron’s motion or, if the court construes Hartford Iron’s 

motion as a motion for partial summary judgment, to give Valley Forge time to 

conduct additional discovery under Rule 56(d). 

 Hartford Iron’s motion is procedurally improper. Hartford Iron asks for 

relief without clearly identifying a legal basis for the court to grant that relief, 

leaving the court without an articulated standard to apply in considering the 

motion. Suggesting three legal “lights” in which the court might construe a 
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motion and then making general arguments without reference to any particular 

standard is as unhelpful as suggesting no basis for decision at all.1 A party can’t 

be permitted to simply throw standards at the wall to see what sticks, because 

doing so forces the court and the opposing party to litigate a movant’s case for 

him in wrestling an amorphous bundle of facts and arguments into a precise 

legal question. Such a strategy is particularly unacceptable here: the court has 

previously denied Hartford Iron’s procedurally improper motions and 

admonished Hartford Iron’s counsel for failing to litigate within the framework 

recognized by the Federal Rules of Civil Procedure. 

That fact alone justifies striking or denying Hartford Iron’s motion. Even if 

the court were to consider each of the three “lights” in the alternative, none of 

them gives the court the authority to provide the relief Hartford Iron seeks. The 

first “light” suggests that the court should exercise its discretion to “fashion a 

remedy” that gives effect to the summary judgment order, as permitted under 

the Declaratory Judgment Act. That statute provides that “any court of the 

United States, upon the filing of an appropriate pleading, may declare the rights 

and other legal relations of any interested party seeking such declaration.” 28 

U.S.C. § 2201(a). 

 

1 Compounding the confusion, Hartford Iron suggests that because it requests three 

different declarations, “the Court may reasonably find it appropriate to apply different 

standards to them” – considering one of the three under the summary judgment 

standard but another under a more lenient discretionary standard for declaratory relief, 

for example. Hartford Iron offers no examples of a court taking this novel approach, and 

the court declines to blaze that trail. 
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Hartford Iron doesn’t suggest what standard the court could apply in 

entertaining a freestanding motion for declaratory relief – aside from insisting 

that the court “may consider all evidence, disputed or not, in the discretionary 

fashioning of remedies to implement the Opinion and Order.” Who bears the 

burden of proof? What forms of evidence may the court consider? Must Hartford 

Iron show entitlement to relief by clear and convincing evidence, a 

preponderance standard, or something else? That Hartford Iron’s motion leaves 

all these questions unanswered is a powerful indication that the motion rests on 

treacherous legal footing. 

Even had Hartford Iron adequately articulated a workable standard the 

court could apply, the Declaratory Judgment Act simply doesn’t empower the 

court to take the action Hartford Iron seeks. As explained in the denials of 

Hartford Iron’s previous two requests for declaratory relief, the plain language of 

the statute provides for a declaration of rights only upon the filing of an 

appropriate pleading. Federal Rule of Civil Procedure 7 defines “pleading” to 

include exclusively complaints, third-party complaints, counterclaims, and 

responses or answers to those filings; independent motions for declaratory 

judgment aren’t contemplated by the Rules. Read in the context of Rule 7, the 

Declaratory Judgment Act doesn’t create a new procedural vehicle through 

which judges can unilaterally declare the rights of parties. Instead it merely 

makes declarations of rights an available form of relief, like money damages or 

injunctions. And like a claim for money damages or injunctive relief, a claim for 
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declaratory judgment must follow the familiar adversarial procedures beginning 

with a well-pleaded complaint and continuing through summary judgment and 

trial – including a right to a jury determination of disputed facts. See Beacon 

Theatres, Inc. v. Westover, 359 U.S. 500, 504 (1959) (noting that 28 U.S.C. § 

2201(a) “while allowing prospective defendants to sue to establish their 

nonliability, specifically preserves the right to jury trial for both parties.”). A 

freestanding motion for a judicial declaration of rights unmoored to any 

procedure recognized by the Federal Rules – whether styled as a motion for 

declaratory judgment or a motion “to fashion remedies” – isn’t available. See 10B 

WRIGHT, MILLER & KANE, FED. PRAC. AND PROC. CIV. § 2768 (3d ed. 1998) (noting 

that “the requirements of pleading and practice in actions for declaratory relief 

are exactly the same as in other civil actions”). 

Hartford Iron identifies no case in which a court has taken the usual 

procedural step it requests. The two cases it relies on for the proposition that a 

district court has discretion to “fashion remedies” under the Declaratory 

Judgment Act don’t support Hartford Iron’s position. In the first, Allstate Ins. Co. 

v. Das, 86 F. Supp. 3d 716 (E.D. Mich. 2015), a court granted declaratory relief 

on a motion for summary judgment – not as part of a freestanding proceeding to 

“fashion a remedy.” The second, Cincinnati Ins. Co. v. AMSCO Windows, 921 F. 

Supp. 2d 1226 (D. Utah 2013) also employed the familiar summary judgment 

framework; the court’s language about fashioning a remedy referred to the 

court’s discretion as to the precise form a declaration takes, not flexibility in the 
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procedural mechanisms or legal standard the court applied. In any case, the law 

is clear that declaratory relief is available only through the usual procedural 

vehicles, not on a freestanding motion by a party. See Centrifugal Acquisition 

Corp. v. Moon, No. 09-C-327, 2010 WL 152074, at *1 (E.D. Wis. Jan. 14, 2010) 

(denying motion for declaratory relief and explaining that “the motion is 

procedurally improper because there is no such thing as a motion for declaratory 

relief.”); see also Kam–Ko Bio–Pharm Trading Co., Ltd. v. Mayne Pharma (USA) 

Inc., 560 F.3d 935, 943 (9th Cir. 2009) (“A party may not make a motion for 

declaratory relief, but rather, the party must bring an action for a declaratory 

judgment.”) (emphasis in original). 

Hartford Iron seems to want the court to simply halt a case in the middle 

of discovery and resolve one or more of the claims from Hartford Iron’s 

countercomplaint. The Rules provide two mechanisms for doing exactly that: 

summary judgment or a preliminary injunction. Hartford Iron’s motion seeks to 

attain a similar result without having to show that no disputed facts exist, or 

that the stringent standards governing preliminary injunctions apply. Such a 

procedure isn’t authorized by statute, and it would almost certainly be reversible 

error for the court to employ it. See Saudi Basic Indus. Corp. v. Exxon Corp., 

364 F.3d 106, 110-113 (3d Cir. 2004) (referring to the district court’s order 

enforcing a stipulation in a declaratory judgment action as “effectively an 

injunction” and holding that “it was a clear mistake for the District Court not to 
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have required ExxonMobil, the moving party, to prove the requisites for granting 

an injunction.”) (internal quotation marks omitted). 

The other two “lights” Hartford Iron suggests for its motion are no better. 

Hartford Iron states in conclusory fashion that there are no material facts in 

dispute, and therefore “[b]eyond a fashioning of remedies, the present motion 

thus may also be considered as a further motion in this case for a declaration of 

rights on partial summary judgment.” Hartford Iron’s motion makes no further 

mention of the summary judgment standard, which requires a movant to show 

“that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. In fact, the motion 

explicitly disclaims reliance on a summary judgment standard by insisting that 

the court “may consider all evidence, disputed or not.” Hartford Iron’s statement 

of facts doesn’t differentiate between facts that Hartford Iron contends are 

undisputed and factual disputes it concedes exist but believes the court should 

resolve in its favor. As such, to the extent the court construes the motion as one 

for partial summary judgment, it fails to satisfy Hartford Iron’s obligations under 

the Local Rules. See N.D. Ind. Local Rule 56.1 (requiring that a brief supporting 

a summary judgment motion “identif[y] the facts that the moving party contends 

are not genuinely disputed”). 

To the extent that the court might construe the motion as one for summary 

judgment and overlook the motion’s noncompliance with the Local Rules, it can 

be quickly denied on the merits. The court’s earlier order denying partial 
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summary judgment to Valley Forge represented a limited holding that Valley 

Forge can’t exercise control over the defense or remediation. Despite Hartford 

Iron’s protestations to the contrary, it doesn’t necessarily follow that Hartford 

Iron inherits that control, and it doesn’t empower Hartford Iron to demand any 

specific action on Valley Forge’s part; Valley Forge could comply with the court’s 

ruling, for example, by arranging for a truly independent third party to manage 

the defense and remediation at Valley Forge’s expense rather than accepting 

Hartford Iron as sole decisionmaker. Accordingly, it is far from undisputed that 

Hartford Iron is entitled to the specific billing procedures it demands. Moreover, 

even if Valley Forge is obligated to fund the Keramida plan specifically, that 

obligation only extends to commercially reasonable terms. There remain material 

disputes about whether the terms Hartford Iron negotiated with Keramida are 

commercially reasonable – and, if so, whether the additional terms Valley Forge 

wants added to the contract are commercially unreasonable. 

Finally, Hartford Iron’s third “light” involves Valley Forge’s consent. 

Hartford Iron suggests that Valley Forge already agreed that the court should 

declare the rights of the parties when it sought the court’s guidance in the course 

of the prior preliminary injunction and summary judgment proceedings. There 

are three problems with this suggestion. First, Valley Forge doesn’t consent; it 

has vigorously opposed Hartford Iron’s repeated motions seeking declaratory 

judgment and consistently argued that the court has no authority to grant the 

relief Hartford Iron seeks. The fact that Valley Forge previously asked the court 
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to resolve other declaratory relief claims through a recognized procedural 

framework doesn’t mean Valley Forge consents to the court making further 

rulings outside such a framework. Hartford Iron cites no authority for the 

proposition that once a party has asked a court to rule on a claim for declaratory 

relief, it has irrevocably consented to any further declaratory relief proceedings 

even if procedurally improper. Second, even if Valley Forge consented, it wouldn’t 

matter – such consent couldn’t expand a court’s powers beyond what federal law 

permits. Hartford Iron has cited no statute or case to suggest that a court can 

adjudicate claims outside the procedures contemplated by the Federal Rules, 

even by agreement of the parties. Third, even if the court were empowered to 

adjudicate these issues it couldn’t do so without a workable standard to apply. 

Hartford Iron’s motion argues that the court can resolve these issues by consent 

of the parties but gives no hint what standard would apply were the court to do 

so. 

Accordingly, none of the three “lights” Hartford Iron suggests for its motion 

provides a procedurally proper mechanism for the court to grant Hartford Iron 

the relief it seeks. Because the court denies Hartford Iron’s motion as 

procedurally improper, Valley Forge’s two responsive motions – a motion to strike 

Hartford Iron’s motion and a motion asking for additional time to complete 

discovery if the court construes Hartford Iron’s motion as one for partial 

summary judgment – are moot. The court has already admonished Hartford Iron 

about bringing motions without identifying a recognized legal basis for them, and 
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won’t do so again. Any future motions by Hartford Iron must clearly identify a 

recognized procedural basis for the motion and the specific legal standard it asks 

the court to apply. Motions that don’t do so will be summarily stricken and 

Hartford Iron’s counsel will be given an opportunity to show cause why sanctions 

shouldn’t be imposed. 

 For the reasons stated above, the court DENIES Hartford Iron’s motion to 

declare rights and fashion remedies (Doc. No. 372) and DENIES AS MOOT Valley 

Forge’s motion to strike (Doc. No. 379) and motion under Rule 56(d) (Doc. No. 

380). 

 SO ORDERED. 

 ENTERED: April 19, 2016 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court