JONES v. WAL-MART TRANSPORTATION, LLC et al

Filing 31

ORDER DENYING 30 MOTION FOR CLERK'S DEFAULT - Plaintiff, Angela Jones, has filed a motion for clerk's entry of default against Defendant Thomas B. Radey. Dkt. 30 . In support, she attaches a declaration of service and supporting do cuments showing that in June 2020, she served Mr. Radey with the initial complaint filed in this case. Dkt. 30 -1 at 1, 4, 7, 10-14; see Netzsch Premier Tech., LLC v. Puhler Feinmahltechnik GmbH, No. 1:16-cv-781-WTL-MPB, 2016 WL 6573886 at *2 (S.D. Ind. Nov. 7, 2016). The operative complaint, however, is Ms. Jones's First Amended Complaint, which she filed on December 17, 2020. Dkt. 1 -1. Because Ms. Jones has not shown that she served Mr. Radey with the operative complaint, h er motion for clerk's entry of default is DENIED without prejudice. Dkt. 30 ; see In re Kutrubis, 550 Fed. App'x 306, 309 (7th Cir. 2013) (explaining that the "failure to effectuate proper service" of the operative complaint under Federal Rules of Civil Procedure 4 and 5 "would... invalidate any resulting judgment"); Netzsch Premier Tech., 2016 WL 6573886 at *2. (See Order). Signed by Judge James Patrick Hanlon on 11/19/2021. (AKH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
ANGELA JONES as Special Administrator )
of the Estate of Suzanne Anderson,
)
)
Plaintiff,
)
)
v.
)
)
THOMAS B. RADEY,
)
)
Defendant.
)

No. 1:21-cv-00163-JPH-TAB

ORDER DENYING MOTION FOR CLERK'S DEFAULT
Plaintiff, Angela Jones, has filed a motion for clerk's entry of default
against Defendant Thomas B. Radey. Dkt. 30. In support, she attaches a
declaration of service and supporting documents showing that in June 2020,
she served Mr. Radey with the initial complaint filed in this case. Dkt. 30-1 at
1, 4, 7, 10–14; see Netzsch Premier Tech., LLC v. Puhler Feinmahltechnik GmbH,
No. 1:16-cv-781-WTL-MPB, 2016 WL 6573886 at *2 (S.D. Ind. Nov. 7, 2016).
The operative complaint, however, is Ms. Jones's First Amended Complaint,
which she filed on December 17, 2020. Dkt. 1-1; see Beal v. Beller, 847 F.3d
897, 901 (7th Cir. 2017) ("For pleading purposes, once an amended complaint
is filed, the original complaint drops out of the picture.").
Because Ms. Jones has not shown that she served Mr. Radey with the
operative complaint, her motion for clerk's entry of default is DENIED without
prejudice. Dkt. [30]; see In re Kutrubis, 550 Fed. App'x 306, 309 (7th Cir.
2013) (explaining that the "failure to effectuate proper service" of the operative

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complaint under Federal Rules of Civil Procedure 4 and 5 "would . . . invalidate
any resulting judgment"); Netzsch Premier Tech., 2016 WL 6573886 at *2.
SO ORDERED.
Date: 11/19/2021

Distribution:
Colin E. Flora
PAVLACK LAW, LLC
[e-mail]
Lance R. Ladendorf
PAVLACK LAW, LLC
[e-mail]
Eric S. Pavlack
PAVLACK LAW, LLC
[e-mail]

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