UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

NATHAN KRAS, )

Plaintiff/Judgment Creditor, )

)

v. ) CAUSE NO.: 2:16-CV-224-JEM

)

CONIFER INSURANCE COMPANY, )

Garnishee-Defendant, )

____________________________________)

)

CONIFER INSURANCE COMPANY, )

Counter-Claim Plaintiff, )

)

v. )

)

 NATHAN KRAS, )

Counterclaim Defendant. )

OPINION AND ORDER

This matter is before the Court on a Motion to Set Status Conference [DE 77], filed by

Plaintiff Nathan Kras on September 5, 2018. Kras requests that the Court set this matter for a status

conference to set deadlines in this case. On September 12, 2018, Defendant Conifer Insurance

Company filed a response agreeing to a status conference but requesting that the Court first allow

it to amend its counterclaim. The parties had previously filed briefing addressing the possible joinder

of additional parties and how the claims in this Court should proceed as related to the state court

proceedings.

I. Background 

In September 2013, Nathan Kras was shot in the leg and abdomen outside a Hammond,

Indiana nightclub. Two years later, in September 2015, Kras sued the nightclub and its owners in

state court, alleging negligence. The nightclub owners had insurance with Conifer Insurance

Company, but Conifer denied the nightclub defendants’ request for coverage for the attack. In
Conifer’s view, the policy provided coverage for the nightclub property only, not for the adjoining

gravel parking lot where Conifer said the attack occurred. Conifer did not move for a declaratory

judgment in the state court, and the state court litigation between Kras and the nightclub defendants

proceeded without Conifer’s involvement. 

 In March 2016, Kras served 28 admissions requests on the nightclub defendants regarding

the nature, extent, and amount of Kras’s injuries and damages, the location of the attack, and the

owners’ fault with respect to the attack. In April 2016, Kras and the owners entered into a consent

judgment by which the owners admitted negligence and admitted to all 28 admissions requests, and

the state court entered judgment against them for $2,955,056—the amount of damages identified in

the consent judgment and in the admissions requests. The consent judgment included a clause in

which Kras agreed not to execute against the judgment debtors.

Having received judgment in his favor, in April 2016 Kras filed a motion for a proceeding

supplemental. Kras sought to garnish $2,955,056 from Conifer in satisfaction of the state court

judgment against the judgment debtors. Conifer removed the case to federal court on June 13, 2016,

and thereafter filed a counterclaim for declaratory judgment on the grounds that it did not owe

coverage to the judgment debtors.

Kras then moved to join as defendants in the garnishment proceedings the entities who were 

defendants/judgment debtors in the underlying state court proceedings. The Court denied that

Motion but ordered the parties to file additional briefing regarding whether the judgment debtors are

required parties to Conifer’s counterclaim for declaratory judgment.

On February 14, 2018, before filing that briefing, Kras filed a notice with the Court reporting

that he had filed a motion in the state court to reopen that proceeding, rescind the consent judgment,

2
and vacate the judgment in that case. He represents that his claim for garnishment would then be

made moot, and requests that the Court dismiss the declaratory judgment counterclaim because, once

the case was reopened, there would be parallel proceedings in the state court. Kras agrees, however,

that to the extent that the action for declaratory judgment continues in this case, the judgment

debtors are required parties to that counterclaim.

Conifer objects to dismissal of the declaratory judgment, and in its briefing regarding joinder

of parties, requests leave of Court to file an amended counterclaim adding the judgment debtors as

counterclaim defendants. 

As part of his Motion for Status Conference, Kras attached a state court order dated June 14,

2018, finding that the state court did not have jurisdiction over this matter and declining to rule on

the motion to reopen cause, rescind the consent judgment, and vacate the judgment. In response,

Conifer asserts that the consent judgment is therefore still in effect and enforceable, so that the

proceedings should proceed, with the addition of the judgment debtors as counterclaim defendants.

The parties have filed forms of consent to have this case assigned to a United States

Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this

case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

II. Analysis

Kras initially requested that the Court determine that the garnishment proceeding would be

moot and abstain from exercising jurisdiction over the declaratory judgment action because of his

request to reopen the state court proceedings. However, since the state court found that it did not

have jurisdiction over the matter, the case will not be reopened and the consent judgment remains

in place. Accordingly, there is no pending state court proceeding, the garnishment proceeding is not

3
moot, and there is no pending state court proceeding requiring abstention from this Court. The Court

therefore turns to the request to amend and add parties to the counterclaim for declaratory judgment.

Conifer requests leave of Court to amend its counterclaim for declaratory judgment to add

the judgment debtors as counterclaim defendants. Kras does not object. Federal Rule of Civil

Federal Rule of Civil Procedure 15(a) provides that, when a party seeks leave to amend a pleading,

the “court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Rule 19

governs joinder of necessary parties and provides:

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of

process and whose joinder will not deprive the court of

subject-matter jurisdiction must be joined as a party if:

(A) in that person’s absence, the court cannot accord

complete relief among existing parties; or

(B) that person claims an interest relating to the

subject of the action and is so situated that disposing

of the action in the person’s absence may:

(i) as a practical matter impair or impede the

person’s ability to protect the interest; or

(ii) leave an existing party subject to a

substantial risk of incurring double, multiple,

or otherwise inconsistent obligations because

of the interest.

(2) Joinder by Court Order. If a person has not been joined

as required, the court must order that the person be made a

party. A person who refuses to join as a plaintiff may be made

either a defendant or, in a proper case, an involuntary

plaintiff.

Fed. R. Civ. P. 19(a)(1), (2).

Conifer argues that the judgment debtors are necessary parties to its counter claim for

declaratory judgment because, without their presence, Conifer could be subjected to a substantial

risk of incurring multiple or conflicting legal obligations, as they would not be bound by judgment

entered in this Court and could initiate new claims against Conifer arising out of the same coverage

4
issues, leading to duplicate legal costs and the possibility of conflicting judgments. Kras agrees that

the judgment debtors are necessary parties, and neither party provides any reason why joinder is not

feasible. Based on the pleadings and representations submitted to the Court to this point, it appears

that diversity between the parties will not be destroyed if the judgment debtors are added as

counterclaim defendants. Accordingly, it is appropriate for Conifer to amend its counterclaim for

declaratory judgment and add the judgment debtors as counterclaim defendants.

III. CONCLUSION

For the foregoing reasons, the Court hereby GRANTS Conifer’s request to amend its

counterclaim and ORDERS Conifer Insurance Company to file its Amended Counterclaim for

Declaratory Judgment, currently on the docket as an attachment to its briefing, on or before October

12, 2018, and to properly serve it on all counterclaim defendants as required by the Federal Rules

of Civil Procedure. The Court GRANTS the Motion to Set Status Conference [DE 77] and will set

this matter for a status conference after the judgment debtors have been added to this case.

SO ORDERED this 3rd day of October, 2018. 

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

5