Gateway One Lending & Finance, LLC v. Golden Auto Brokers Incorporated et al

Filing 11

OPINION AND ORDER vacating the Clerk's Entry of Default. Plaintiff Gateway One Lending & Finance, LLCs Motion for Entry of Default Judgment 10 is denied without prejudice. It is further ordered that Plaintiff shall, on or before March 24, 2017 , serve, pursuant to Federal Rule of Civil Procedure 5, its Amended Complaint on Defendants and file with the Court its proof of service. Defendants shall, pursuant to Rule 15 of the Federal Rules of Civil Procedure, have fourteen (14) days after ser vice of the Amended Complaint within which to respond to it. If Defendants fail to respond within the time period allowed, Plaintiff may, within twenty one (21) days of Defendants failure to respond, file its motion for default judgment. The Court will not allow Plaintiff any further opportunities to follow the proper procedure to obtain the default judgment it seeks. Signed by Judge William S. Duffey, Jr on 3/10/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GATEWAY ONE LENDING &
FINANCE, LLC,
Plaintiff,
v.

1:15-cv-1808-WSD

GOLDEN AUTO BROKERS
INCORPORATED, a/k/a Golden
Auto Brokers, Inc. and RAY
MAURICE HAMILTON,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Gateway One Lending &
Finance, LLC’s (“Plaintiff”) Motion for Entry of Default Judgment [10]
(“Renewed Motion for Default Judgment”).
I.

BACKGROUND
On May 20, 2015, Plaintiff filed its Complaint [1]. On June 4, 2015,

Plaintiff filed returns of service on Defendants Golden Auto Brokers Incorporated
(“Golden Auto”) and Ray Maurice Hamilton (“Hamilton”) (together,
“Defendants”). ([4], [5]). On August 14, 2015, Plaintiff filed its Motion for
Clerk’s Entry of Default [6], and, the same day, the Clerk entered default as to

Golden Auto and Hamilton. On May 31, 2016, Plaintiff filed its Motion for
Default Judgment [7].
Because Plaintiff’s Complaint did not adequately show that the Court has
diversity jurisdiction over this action, on September 22, 2016, the Court issued an
Order [8] requiring Plaintiff to file an amended complaint adequately alleging the
citizenship of the parties. On September 28, 2016, Plaintiff filed its Amended
Complaint, which adequately alleges the parties’ citizenship. In view of the
Amended Complaint, on September 29, 2016, the Court issued an order denying,
as moot, Plaintiff’s Motion for Default Judgment. On December 28, 2016,
Plaintiff filed its Renewed Motion for Default Judgment.
II.

DISCUSSION
Because Plaintiff failed to properly allege diversity jurisdiction, the Court

required it to file an Amended Complaint. Because Plaintiff filed an Amended
Complaint, the Clerk’s entry of default is required to be vacated. See Heritage
Bank v. Quinnco Hinesville, LLC, No. CV414-268, 2016 WL 8200941, at *1 (S.D.
Ga. Jan. 20, 2016).
Plaintiff’s Renewed Motion for Default Judgment is required to be denied
without prejudice, because Plaintiff failed to serve Defendants with its Amended
Complaint. Service under Rule 5 applies where, as here, the amended complaint

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does not assert new claims for relief. U.S. Bank Nat’l Ass’n v. Sararo, No. 2:16CV-733-FTM-99CM, 2016 WL 7157521, at *2 (M.D. Fla. Dec. 8, 2016). Rule
5(a)(1)(B) of the Federal Rules of Civil Procedure states that a pleading filed after
the original complaint must be served on every party unless ordered otherwise by
the Court. Fed. R. Civ. P. 5(a)(1)(B). Plaintiff did not include any certificate of
service or otherwise indicate that it served Defendants with the Amended
Complaint upon which it seeks default judgment, and Plaintiff’s Motion for
Default Judgment is denied without prejudice.
Plaintiff shall, on or before March 24, 2017, serve, pursuant to Federal
Rule of Civil Procedure 5, its Amended Complaint on Defendants and file with the
Court its proof of service. Defendants shall, pursuant to Rule 15 of the Federal
Rules of Civil Procedure, have fourteen (14) days after service of the Amended
Complaint within which to respond to it. If Defendants do not file any response
within the time period allowed, Plaintiff may, within twenty one (21) days of
Defendants’ failure to respond, file its motion for default judgment. The Court will
not allow Plaintiff any further opportunities to follow the proper procedure to
obtain the default judgment it seeks.

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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Clerk’s Entry of Default is

VACATED.
IT IS FURTHER ORDERED that Plaintiff Gateway One Lending &
Finance, LLC’s Motion for Entry of Default Judgment [10] is DENIED
WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff shall, on or before
March 24, 2017, serve, pursuant to Federal Rule of Civil Procedure 5, its Amended
Complaint on Defendants and file with the Court its proof of service. Defendants
shall, pursuant to Rule 15 of the Federal Rules of Civil Procedure, have fourteen
(14) days after service of the Amended Complaint within which to respond to it. If
Defendants fail to respond within the time period allowed, Plaintiff may, within
twenty one (21) days of Defendants’ failure to respond, file its motion for default
judgment. The Court will not allow Plaintiff any further opportunities to follow
the proper procedure to obtain the default judgment it seeks.
SO ORDERED this 10th day of March, 2017.

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