Rogers v. Richard et al

Filing 20

ORDER signed by Magistrate Judge Gregory G. Hollows on 07/27/17 ORDERING that the 13 Clerk's Entry of Default is STRICKEN; the 14 Motion for Default Judgment is DISREGARDED AS MOOT and the 08/03/17 hearing is VACATED; Plaintiff, not the U nited States Marshal, must now serve defendants with theAmended Complaint in order to continue with this action; the following documents must be served on each defendant pursuant to FRCP 4(e): a. One summons for each defendant which plaintiff shall complete;b. The Amended Complaint; c. One copy of this court's 3 Order;d. One copy of this Order for each defendant. Plaintiff shall complete the service on all defendants and notify the court that service has been completed within 45 days. (Benson, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KIM EDWARD ROGERS,

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Plaintiff,

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M. RICHARD, et al.,

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No. 2:17-cv-00149 JAM GGH

ORDER

Defendants.

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Plaintiff, proceeding in this action pro se, has requested to have a default judgment

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entered against all named defendants for their failure either to challenge his request to have the

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Clerk of the Court enter default, ECF No. 12. The matter was scheduled for hearing on August 3,

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2017. ECF No. 17. On July 19, 2017, the named defendants filed an Opposition to the Motion

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for Default Judgment, ECF No. 18. The court will determine the matter without the need for a

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hearing by this Order.
PROCEDURAL BACKGROUND

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Plaintiff filed his original Complaint on January 24, 2017, ECF No. 1, and sought in

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forma pauperis status om the same date. ECF No. 2. On February 2, 2017 this court granted

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plaintiff in pauperis status and directed that the United States Marshal should serve process within

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90 days of the time he received documents the plaintiff was directed to complete. ECF

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No. 3.

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Sumonses were issued by the Clerk of the Court for all of the named defendants on
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February 2, 2017 and served on plaintiff by mail together with additional documents the court

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required be served with the complaint.. ECF Nos. 3, 4 and 6.

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Plaintiff gave notice he had submitted the completed summonses and ancillary documents

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to the United States Marshal to effect service on February 9, 2017. ECF No. 6. On March 2,

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2017 defendants Jeffrey A. Nichols, Justin A. Thompson and Phillip A. Williams returned a

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waiver of service through counsel as a result of which these plaintiffs had 60 days from the date

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of waiver to respond to the Complaint. ECF No. 7.

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On March 17, 2017, plaintiff filed a First Amended Complaint against all of the
defendants. ECF No. 8. Since none of the defendants had yet responded to the Complaint served

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on them, plaintiff was permitted to do this without seeking court permission pursuant to Federal

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Rule of Civil Procedure 15(a). The terms of the Rule indicate that it is expected any such pre-

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response amendment will be duly served on the defendants thereby triggering their duty to

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respond. 15(a)(1). The terms of the Rule indicate that it is expected any such pre-response

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amendment will be duly served on the defendants thereby triggering their duty to respond. Id. at

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(a)(1)(B) .

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On May 4, 2017 the Marshal returned the summonses1 served on named defendants Sean

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D. Kent, M. Richard, Wesley J. Fish and M. Richard. ECF Nos. 9, 10. Thus, it was not until this

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date that all defendants had been served with the original Complaint. None of them, however,

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had been served with the Amended Complaint.

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On June 22, 2017 plaintiff requested that the Clerk of the Court enter default against all

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defendants for failure to timely respond to his complaint, ECF No. 12, and the Clerk performed

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this ministerial duty on June 26, 2017. ECF No. 13. The plaintiff’s request indicates that he is

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seeking entry of judgment on the originally filed complaint insofar as he refers to the failure of

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the defendants to “[make] any denials or affirmative defenses of the original pleading brought by

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plaintiff.” (Emphasis added.) ECF No. 12 at 2:5-8. The plaintiff thereafter filed his Motion for

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Most defendants had acknowledged service of the Complaint; however, because the Complaint
become inoperative by virtue of the filing of the Amended Complaint, these facts about
acknowledgement of not are irrelevant. See text infra.
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Default Judgment, together with a Memorandum of Points and Authorities seeking damages of

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$250,000 plus actual damages to be proved to the court, against the defendants and stating the

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ground for the action was that all of the defendants had been duly served by the United States

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Marshal, the time for Answer had elapsed, and none of the defendants had answered. ECF No.

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15.

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DISCUSSION

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Without addressing all the arguments raised by the defendants formally opposing the

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Motion for Entry of Default Judgment, the court notes that, at this point, no defendant has been

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served with a complaint as to which a response is due. This is because when plaintiff filed his

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First Amended Complaint, the Complaint originally filed, and with which the defendants were

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served, was superseded by the amendment and thereafter is inoperative. See. e.g., Pack v.

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McCausland, 300 Fed.Appx. 541, 2008 WL 4827349 (9th Cir. 2008) . Bullen v. De Bretteville,

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239 F.2d 824, 833 (9th Cir. 1956); McCausland v. Stevens, 224 F.2d 66 *1 (7th Cir. 1955);

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Ericson v. Slomer, 94 F.2d 437 (7th Cir. 1938); Meyer v. State Board of Equalization, 42 Cal.2d

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376 (1954). Since defendants were served with the original, then superseded and inoperative

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original Complaint, plaintiff’s request for entry of default and motion for default judgment could

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only be brought on the Amended Complaint as it was the only operative pleading, but as to which

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the defendants had no notice.2

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The situation as it now stands is that no defendant has been served with the operative

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Amended Complaint in this action. For this reason IT IS THEREFORE ORDERED THAT:

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1.

The Entry of Default, ECF No. 13, is stricken as improvidently entered; The

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Motion for Default Judgment is disregarded as moot; the hearing set for August 3,

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2017 on the Motion for Default Judgment is vacated;

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2.

Amended Complaint in order to continue with this action;

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Plaintiff, not the United States Marshal, must now serve defendants with the

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Plaintiff shall acquire from the Clerk of the Court, located at 501 I Street, Fourth

Parties do not get electronic notice of filings through the Court’s electronic filing system until
they have filed a document with the court.
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Floor, Sacramento, CA 95814, the following documents all of which must be served on each

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defendant pursuant to Federal Rule of Civil Procedure 4(e):

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a.

One summons for each defendant which plaintiff shall complete;

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b.

The Amended Complaint;

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c.

On copy of this court’s Order found at ECF No. 3;

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d.

One copy of this Order for each defendant.

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4.

Plaintiff shall complete the service on all defendants and notify the court that

service has been completed within 45 days of the issuance of this Order;
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Failure to comply with this Order will result in a recommendation that this action

be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and Local Rules 110 and 183(a).
IT IS SO ORDERED.
Dated: July 27, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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