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Ferraro v. Humphrey

United States District Court, N.D. Indiana

February 18, 2015




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.


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 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.


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 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).

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.") ...

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