Opinion
Civil Action No. 08-cv-02421-CMA-CBS.
November 20, 2008
ORDER
This civil action comes before the court on Mr. Marotta's "Motion for Reconsideration of Order" (filed November 19, 2008) (doc. # 18). Pursuant to the Order of Reference dated November 12, 2008 (doc. # 10) and the memorandum dated November 20, 2008 (doc. # 19), this matter was referred to the Magistrate Judge. The court has reviewed the matter, the entire case file and the applicable law and is sufficiently advised in the premises.
Mr. Marotta argues that the court's Order dated November 17, 2008 (doc. # 16) is incorrect for two reasons. First, Mr. Marotta argues that the correct deadline for Defendants to answer or otherwise respond to the Amended Complaint is November 28, 2008. However, Fed.R.Civ.P. 15(a)(3) permits the court in its discretion to establish the time to respond to the Amended Complaint. Thus, the court was within its authority to set December 8, 2008 as the deadline for Defendants to answer or otherwise respond to the Amended Complaint.
Second, Mr. Marotta argues that the court should not have extended the deadline to answer for Defendant Cortez because Mr. Marotta filed a Motion for Judgment by Default against Defendant Cortez on November 4, 2008, prior to the removal of this action from state court. ( See doc. # 6 at pp. 8-9 of 12). Mr. Marotta filed his Amended Complaint on November 13, 2008. ( See doc. # 12). An amended complaint supersedes the original complaint, rendering it of no legal effect and waiving all causes of action alleged in the original complaint but not alleged or incorporated into the amended complaint. See Rockwell Int'l Corp. v. US, 549 U.S. 457, 127 S.Ct. 1397, 1409 (2007) (holding that "when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction") (citation omitted), reh'g denied, 127 S.Ct. 2300 (U.S. May 14, 2007); Dresdner Bank AG v. M/V Olympia Voyar, 463 F.3d 1210 (11th Cir. 2006) (holding generally that where court granted motion to amend the complaint to conform to the evidence, the amended pleading supercedes the former pleading); Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("an amended pleading ordinarily supersedes the original and renders it of no legal effect") (internal quotation marks and citation omitted); Davis v. TXO Production Corp., 929 F.2d 1515, 1517 (10th Cir. 1991) ("[i]t is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect") (internal quotations marks and citations omitted); 6 Charles Alan Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure § 1476 (2d ed. 1990) ("A pleading that has been amended .^.^. supersedes the pleading it modifies.^.^.^. Once an amended pleading is interposed, the original pleading no longer performs any function in the case.^.^.^."). Mr. Marotta's Motion for Default may therefore be denied or stricken as moot on the grounds that it was rendered null by the filing of his Amended Complaint. See, e.g., Vanguard Fin. Serv. Corp. v. Johnson, 736 F. Supp. 832, 835 (N.D. Ill. 1990) (striking motion for default judgment as moot upon filing of amended complaint); Best Western Int'l, Inc. v. Melbourne Hotel Investors, LLC, 2007 WL 2990132, *2 (D. Ariz. Oct. 11, 2007) (denying as moot motions for default judgment due to filing of amended complaint).
Accordingly,
A copy of this unpublished case is attached to this Order.
IT IS ORDERED that Mr. Marotta's "Motion for Reconsideration of Order" (filed November 19, 2008) (doc. # 18) is DENIED.
Westlaw.
Not Reported in F.Supp.2d
Not Reported in F.Supp.2d, 2007 WL 2990132 (D. Ariz.)
(Cite as: 2007 WL 2990132 (D. Ariz.))
H
Only the Westlaw citation is currently available. United States District Court, D. Arizona. BEST WESTERN INTERNATIONAL, INC., an Arizona non-profit corporation, Plaintiff, v. MELBOURNE HOTEL INVESTORS, LLC, and Robert D. Falor, Defendants. No. CV 06-2276-PHX-MHM. Oct. 10, 2007. Michael G. Helms, Kothe Helms PC, Phoenix, AZ, for Plaintiff.ORDER
MARY H. MURGUIA, United States District Judge.
* 1 Currently before the Court is Plaintiff Best Western International, Inc.'s ("Plaintiff") Amended Motion for Default Judgment against Defendant Melbourne Hotel Investors, LLC. ("Defendant Melbourne") (Dkt.# 18).
By way of background, on September 22, 2006, Plaintiff filed its initial complaint in this matter naming Defendant Melbourne and Defendant Robert Falor. (Dkt.# 1). Plaintiff sought damages amounting to $130,000 plus an award of attorney's fees and costs. (Id.). On December 27, 2006, based upon Defendant Melbourne's failure to respond to Plaintiffs complaint, Plaintiff applied for entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure with the Clerk of the Court. (Dkt.# 7). The Clerk of the Court granted the application on December 28, 2006. (Dkt.# 9). On December 29, 2006, Plaintiff filed its original motion for default judgment pursuant to Rule 55(b)(2) Fed.R.Civ.P. (Dkt.# 10). However, before the Court could rule on the original motion, Plaintiff, pursuant to Rule 15(a) Fed.R.Civ.P., filed the instant Amended Complaint against Defendants Melbourne and Falor seeking damages in the excess of $343,000 as well as attorney's fees and costs. (Dkt. # 13). The significance of the filing of the Amended Complaint for purposes of Plaintiff's original motion for default judgment is that it mooted the request. Notably, an "amended complaint supersedes the original, the latter being treated thereafter as non-existent." Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967); see also Vanguard Financial Service Corp. v. Johnson, 736 F.Supp. 832, 835 (N.D.Ill. 1990) (denying as moot plaintiff's motion for default judgment where amended complaint subsequently filed); Nelson v. Nationwide Mortg. Corp., 659 F.Supp. 611, 615 (D.D.C. 1987) (same).
The Court advised Plaintiff's counsel of the significance of the Amended Complaint as to the original motion for default judgment at the August 20, 2007, order to show cause hearing. (Dkt.# 17). Specifically, the Court directed Plaintiff's counsel to verify whether the motion for default judgment was based upon the original complaint or now viable Amended Complaint. The Court further instructed that "[i]f the Motion was based upon the original complaint [Plaintiff] shall request entry of default as to the amended complaint if appropriate."( Id.). After reviewing the record, Plaintiff filed the instant Amended Motion for default judgment on August 27, 2007. (Dkt.# 18). However, Plaintiff has failed to properly comply with the Court's order and the requirements of Rule 55 with its instant Amended Motion. Notably, instead of following the sequential two-step process of first obtaining entry of default by the Clerk of the Court pursuant to Rule 55(a) and then moving for default judgment pursuant to Rule 55(b)(2) Fed.R.Civ.P., Plaintiff has skipped the first step and simply moved for default judgment. See Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (discussing two-step process). Such practice is deficient because Plaintiff has not demonstrated service of the Amended Complaint upon Defendant Melbourne, which is required for an entry of default pursuant to Rule 55(a) entered by the Clerk.FN1 As such, the Court will deny Plaintiff's Motion without prejudice to be refiled after proper compliance with Rule 55 Fed.R.Civ.P.
FN1. Plaintiff's instant Amended Motion states that Plaintiff has served the original complaint, but does not indicate whether the Amended Complaint has been served. (Dkt.# 18).
* 2 Accordingly,
IT IS HEREBY ORDERED denying without prejudice Plaintiff's Amended Motion for default judgment. (Dkt.# 18).
D. Ariz., 2007.
Best Western Intern., Inc. v. Melbourne Hotel Investors, LLC
Not Reported in F.Supp.2d, 2007 WL 2990132 (D. Ariz.)
END OF DOCUMENT