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refusing to enter default as to a defendant that was served with original complaint instead of the pleading that was amended before service occurred
Summary of this case from Adam Techs. v. Well Shin Tech.Opinion
CIVIL ACTION NO. 3:10-CV-2020.
December 20, 2010
MEMORANDUM ORDER
Presently before the court are Plaintiff PNC Bank's motions for default judgment against the defendants. (Docs. No. 12, 13, 14.) Because it appears that proper service was never effected, the motions will be denied.
PNC Bank amended its complaint twice before effecting service upon the defendants. However, its affidavits suggest that on November 19, 2010, the defendants were personally served with a copy of the original complaint and summons, even though by then PNC Bank had filed its second amended complaint with the court. On November 22, 2010, PNC Bank mailed a copy of the second amended complaint by first class mail to the defendants.
When a complaint is amended after the original complaint has been served on the defendant, the amended complaint must only be served in accordance with Federal Rule of Civil Procedure 5(b), and service by mail is valid. However, where the original complaint has been amended before service, the amended version must be served with the summons. 4A Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1093. "It is well settled that when a plaintiff files an amended petition the original petition is abandoned and becomes a mere 'scrap of paper' insofar as the case is concerned." Leis v. Mass. Bonding Ins. Co., 125 S.W.2d 906, 908 (Mo. Ct. App. 1939). The effect of filing an amended complaint is to withdraw the original complaint. See Phillips v. Murchison, 194 F. Supp. 620, 622 (D.C.N.Y. 1961) (internal citations omitted).
Federal Rule of Civil Procedure 4(c) provides that "[a] summons must be served with a copy of the complaint." Here, PNC Bank "did not serve the then-complaint upon the defendant[s] . . . but served a superseded complaint which was then no more than a mere 'scrap of paper' insofar as the case is concerned." Phillips, 194 F. Supp. at 622 (quoting Leis, 125 S.W.2d at 908). Thus, service in accordance with Rule 4 has not been effected and a default cannot be entered. See Wright Miller, supra, § 1093.
IT IS HEREBY ORDERED that PNC Bank's motions for entry of default and default judgment (Docs. No. 12, 13, 14) are DENIED. December 20, 2010 Date