York, et al v. American Savings Network Inc., et al

Filing 45

ORDER signed by Magistrate Judge Kendall J. Newman on 4/21/2016 ORDERING the hearing on 44 MOTION for DEFAULT JUDGMENT CONTINUED to 6/16/2016 at 10:00 AM in Courtroom 25 (KJN) before Magistrate Judge Kendall J. Newman. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHYLLIS L. YORK, and JAMES B.
CARR,
Plaintiffs,

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v.

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No. 2:15-cv-0563 KJM KJN (TEMP)

ORDER

AMERICAN SAVINGS NETWORK,
INC., also known as AMERICAN
SAVINGS NETWORK, LLC; ANTHONY
DIEHL; and ROGER S. MORAN,

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Defendants.

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Plaintiffs have twice previously moved for default judgement and each motion has been

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denied. (Dkt. Nos. 12, 25, 30, 35.) Both at the hearings and in the orders denying the motions,

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plaintiffs have been repeatedly advised of the “impediments to the granting of plaintiffs’

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motion[s].” (Dkt. No. 25 at 1.) In this regard, one of these impediments has been plaintiffs’

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failure to serve their motions for default judgment on the defendants. On April 6, 2016, plaintiffs

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filed a third motion for default judgment, setting the matter for hearing before the undersigned on

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May 5, 2016. Plaintiffs, however, have yet again failed to file proof of service of notice of the

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motion for default judgment on the defendants.

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Moreover, plaintiffs’ original complaint lacked any factual allegations concerning

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defendant Anthony Diehl and defendant Roger S. Moran. Plaintiffs are now proceeding on an

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amended complaint, which plaintiffs assert contains factual allegations against defendant Diehl

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and defendant Moran. (Dkt. No. 40 at 2-3.) Plaintiffs, however, have not provided proof of

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service of the amended complaint on either defendant Diehl or defendant Moran. See, e.g., FED.

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R. CIV. PRO. 5(a)(2) (“No service is required on a party who is in default for failing to appear.

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But a pleading that asserts a new claim for relief against such a party must be served on that party

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under Rule 4.”); Varnes v. Local 91, Glass Bottle Blowers Ass’n of U.S. and Canada, 674 F.2d

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1365, 1368 (11th Cir. 1982) (“Rule 4, and Rule 5(a) as it applies to parties in default for failure to

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appear, reflect a policy that a defendant should receive notice of all claims for relief upon which a

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court may enter judgment against him.”); Montgomery Bank, N.A. v. Alico Road Business Park,

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LP, No. 2:13-cv-802-FtM-29CM, 2014 WL 757994, at *2 (M.D. Fla. Feb. 26, 2014) (“The filing

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of an amended complaint similarly cures a party’s default as to the superseded original

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complaint.”); Best Western Intern., Inc. v. Melbourne Hotel Investors, LLC, No. CV 06-2276-

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PHX-MHM, 2007 WL 2990132, at *1 (D. Ariz. Oct. 11, 2007) (“Plaintiff has not demonstrated

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service of the Amended Complaint upon Defendant Melbourne, which is required for an entry of

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default pursuant to Rule 55(a) entered by the Clerk”); In re Crazy Eddie Securities Litigation, 948

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F. Supp. 1154, 1164 (E.D. N.Y. 1996) (“Courts have refused to give effect to amended

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complaints not properly served in accordance with Rule 5(a).”); Vanguard Fin. Serv. Corp. v.

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Johnson, 736 F. Supp. 832, 835 (N.D. Ill. 1990) (striking motion for default judgment as moot

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upon filing of amended complaint).1

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Accordingly, IT IS HEREBY ORDERED that:

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1. The May 5, 2016 hearing of plaintiffs’ motion for default judgment is continued to

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June 16, 2016, at 10:00 a.m., in Courtroom No. 25;

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Plaintiffs’ amended complaint alleges that defendant Diehl and defendant Moran are citizens of
Nevada. Plaintiffs are advised that, under California law, when serving a nonresident, “proof of
service shall include evidence satisfactory to the court establishing actual delivery to the person to
be served, by a signed return receipt or other evidence.” CAL. CODE CIV. PRO. 417.20(a).
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2. Within twenty-one days of the date of this order plaintiffs shall properly serve each

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defendant with plaintiffs’ amended complaint, notice of plaintiffs’ motion for default judgment

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and a copy of this order; and

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3. Within seven days of completing service on the defendants, plaintiffs shall file proof of

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such service with the court.

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Dated: April 21, 2016

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