Bey v. Myrick

Filing 10

ORDER denying without prejudice 8 motion for entry of Clerk's default. Signed by Magistrate Judge Amanda Arnold Sansone on 5/23/2018. (DMP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ALI TAJ BEY
Plaintiff,
v.

Case No. 8:18-cv-960-T-17AAS

CRAIG ALLEN MYRICK,
Defendant.
______________________________________/
ORDER
Ali Taj Bey moves for an entry of clerk’s default under Federal Rule of Civil Procedure
55(a). (Doc. 8). Mr. Bey claims Craig Myrick failed to respond to Mr. Bey’s complaint, which
he served on the defendant on April 20, 2018. (Docs. 6, 8).
Under Rule 55(a), when a defendant fails to “plead or otherwise defend, and that failure is
shown by affidavit or otherwise, the clerk must enter the party’s default.” Fed. R. Civ. P. 55(a).
Before directing the clerk to enter a default, however, the court must determine whether the party
requesting the default properly served the defendant. United States v. Donald, No. 3:09-CV-147J-32HTS, 2009 WL 1810357, at *1 (M.D. Fla. June 24, 2009) (citations omitted). The requesting
party’s proof of service should include enough information to show the opposing party was
properly served. 10 James Wm. Moore et al., Moore’s Federal Practice, § 4.103 (3d ed. 2017).
Mr. Bey’s proof of service is deficient. In the section indicating how Mr. Myrick was
served, server Arquella Howell selected the option for serving an organization. (Doc. 6). But, Mr.
Bey sued Mr. Myrick individually. (Doc. 7). Mr. Bey’s proof of service also fails to state where
Arquella Howell served Mr. Myrick. (Doc. 6).

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Since filing the original complaint, Mr. Bey amended his complaint. (Doc. 7). It does not
appear that he served the amended complaint. Amending a complaint does not affect service
requirements of the original complaint under Rule 4. McClenney v. Campellton-Graceville Hosp.,
No. 5:998CV125-SPM, 1999 WL 639815, at *3–4 (N.D. Fla. June 28, 1999) (citations omitted).
Mr. Bey must serve both the original complaint and the amended complaint on Mr. Myrick under
Federal Rules of Civil Procedure 4(c) and 5(a).
For these reasons, Mr. Bey’s motion for clerk’s default (Doc. 8) is DENIED without
prejudice. Mr. Bey may amend his proof of service under Federal Rule of Civil Procedure 4(l)(3).
Additionally, Mr. Bey must serve Mr. Myrick with the amended complaint.
ORDERED in Tampa, Florida on this 23rd day of May, 2018.

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