Butler v. Kidston et al

Filing 17

ORDER re 16 is DENIED without prejudice to refiling after having properly served the Amended Complaint on the Defendants. Signed by Judge Jon E DeGuilio on 11/5/14. (eml)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RONALD H. BUTLER
Plaintiff,
v.
SAMUEL A. KIDSTON, et al.,
Defendants.

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Case No. 2:14-CV-237 JD

OPINION AND ORDER
Now before the Court is Plaintiff Ronald H. Butler’s second motion for entry of default
against the Defendants. [DE 16]. The Court denied the first motion without prejudice because,
though the Defendants had not responded to the complaint as required, the complaint failed to
properly allege diversity jurisdiction, so the Court lacked subject matter jurisdiction. Plaintiff
then filed an Amended Complaint that cures the jurisdictional defect, and has now moved for
entry of default again, as the Defendants have yet to appear in this action.
However, there is no indication that the Amended Complaint was ever served on the
Defendants, so the Court cannot direct an entry of default. Under Rule 5(a)(2), “No service is
required on a party who is in default for failing to appear.” Plaintiff argues that because the
Defendants failed to respond to the initial complaint, they were in default, so no service of the
Amended Complaint was required.1 However, the Court denied Plaintiff’s motion to enter

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Rule 5(a)(2) also states that “a pleading that asserts a new claim for relief against such a party
must be served on that party under Rule 4.” Plaintiff argues that the Amended Complaint does
not assert a new claim because it only fixed the jurisdictional defects. However, if the Court had
no jurisdiction over the claims in the initial complaint but does have jurisdiction over the claims
in the Amended Complaint, those could plausibly be considered “new claims.” Thus, if Plaintiff
opts to serve the Amended Complaint pursuant to Rule 5 instead of Rule 4, he should be
prepared to establish why such service is sufficient should he again seek an entry of default.

default against the Defendants, so the Defendants were not yet in default. In addition, under Rule
15, the Defendants’ responses to the Amended Complaint are due “within 14 days after service
of the amended pleading.” Fed. R. Civ. P. 15(a)(3) (emphasis added). If the Defendants have not
been served with the Amended Complaint, then this 14-day period has not yet begun to run, so
the Defendants have not failed to respond to the Amended Complaint. And since the Defendants
have no continuing obligation to respond to the initial complaint, over which the Court did not
have subject matter jurisdiction and which the Court dismissed, entry of default is not justified
on that basis, either.
Accordingly, Plaintiff’s motion for entry of default [DE 16] is DENIED without
prejudice to refiling after having properly served the Amended Complaint on the Defendants.

SO ORDERED.
ENTERED: November 5, 2014

/s/ JON E. DEGUILIO
Judge
United States District Court

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