United States et al v. Travelers Casualty and Surety Company of America et al

Filing 50

ORDER denying as Moot 24 Motion for Default Judgment; Denying Without Prejudice 46 Supplemental Motion for Default Judgment Signed by Honorable David C. Bramlette, III on 12/21/2012 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
UNITED STATES FOR THE USE AND
BENEFIT OF MID STATE
CONSTRUCTION COMPANY, INC.
AND MID STATE CONSTRUCTION
COMPANY, INC.
VS.

PLAINTIFFS

CIVIL ACTION NO. 5:11-cv-169(DCB)(JMR)

TRAVELERS CASUALTY AND
SURETY COMPANY OF AMERICA; US
COATING SPECIALTIES & SUPPLIES,
LLC; AND EARL WASHINGTON

DEFENDANTS

ORDER
This cause is before the Court on the plaintiff Mid State
Construction Company, Inc. (“Mid State”)’s Motion for Default
Judgment

and

Other

Relief

(docket

entry

24)

against

Earl

Washington, and Supplemental Motion for Default Judgment (docket
entry 46) against Earl Washington. Having carefully considered the
motions and the record in this case, and being fully advised in the
premises, the Court finds as follows:
The Complaint in this action was filed on November 30, 2011.
Mid State served Washington with a Summons and a copy of the
Complaint on December 9, 2011.

At the request of Mid State, the

clerk entered an Entry of Default against Washington on January 5,
2012.

On August 15, 2012, Mid State filed its Motion for Default

Judgment

and

Other

Relief

against

defendant

Earl

Washington.

However, no further action was taken on the motion pending the

bankruptcy proceedings of US Coating Specialties & Supplies, LLC
(“US Coating”).
On October 10, 2012, Mid State filed a First Amended Complaint
seeking a judgment for monetary sums awarded Mid State in an
Arbitration

Award,

Arbitration Award.

and

injunctive

relief

as

provided

in

the

Mid State served Washington with a Summons and

a copy of the First Amended Complaint on October 31, 2012.

On

November 1, 2012, the Bankruptcy Court dismissed US Coating’s
bankruptcy case.
On November 8, 2012, Mid State filed its Supplemental Motion
for Default Judgment against Washington, showing that there is no
longer any potential conflict with the bankruptcy proceedings.
More than 21 days have passed since the Summons and First Amended
Complaint were served on Washington, and he has not answered nor
otherwise defended against the plaintiff’s First Amended Complaint.
However, the plaintiff has not obtained an Entry of Default against
Washington as to the First Amended Complaint.

The filing of an

amended complaint supersedes an original complaint, renders the
original complaint of no legal effect, and moots the clerk’s entry
of default as to the original complaint.

Winston v. City of

Laurel, 2012 WL 5381346 *1 (S.D. Miss. Oct. 31, 2012)(citing Canal
Ins. Co. v. Coleman, 625 F.3d 244, 246 n.2 (5th Cir. 2010)).
The Court therefore finds that the clerk’s Entry of Default
and the plaintiff’s original Motion for Default Judgment and Other

2

Relief (docket entry 24) are moot.

The plaintiff’s Supplemental

Motion for Default Judgment (docket entry 46) shall be denied
without prejudice, and the plaintiff may move for a default
judgment following an entry of default as to the First Amended
Complaint.

Accordingly,

IT IS HEREBY ORDERED that the clerk’s Entry of Default of
January 5, 2012, is MOOT;
FURTHER ORDERED that the plaintiff Mid State Construction
Company, Inc.’s Motion for Default Judgment and Other Relief
(docket entry 24) against Earl Washington is DENIED AS MOOT;
FURTHER ORDERED that the plaintiff Mid State Construction
Company, Inc.’s Supplemental Motion for Default Judgment (docket
entry 46) against Earl Washington is DENIED WITHOUT PREJUDICE, and
the plaintiff may move for a default judgment following an entry of
default as to the First Amended Complaint.
SO ORDERED, this the

21st

day of December, 2012.

s/ David Bramlette
UNITED STATES DISTRICT JUDGE

3