Smallwood v. Irwin Mortgage Corporation et al

Filing 45

ORDER denying 40 Motion for Entry of Default and the clerk will reissue summons as to this defendant, Irwin Mortgage Corporation. Counsel is reminded to read the order in its entirety. Signed by Julie A. Richards, Clerk of Court on 4/12/2013. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-47-BO

CYNTHIA SMALL WOOD,

)

Plaintiff,

v.
IRWIN MORTGAGE CORPORATION, et al.,
Defendants.

)
)
)
)
)
)
)
)

ORDER

On February 28, 2013, Cynthia Smallwood ("plaintiff') filed a complaint against several
defendants including Irwin Mortgage Company ("Irwin") [D.E. 1]. In sum, this action relates to
foreclosure proceedings involving plaintiffs home. On September 4, 2012, plaintiff filed an amended
complaint [D.E. 26]. On February 27, 2013, plaintiff filed a motion for entry of default against Irwin
[D.E. 40]. For the reasons explained, plaintiffs motion for entry of default is denied.
According to plaintiff, Irwin was served with the summons and complaint through the office
ofthe Secretary of State on June 4, 2012. Plaintiff alleges that Irwin's answer or other response was
due on June 25,2012. Under Rule 55(a) ofthe Federal Rules of Civil Procedure, plaintiff seeks entry
of default against Irwin in light of its failure to file an answer or responsive pleading. However, it
appears that plaintiffs amended complaint contains allegations against Irwin that were not included
in the original complaint. Plaintiffs amended complaint failed to contain a certificate of service, and
plaintiff did not otherwise show that Irwin was served with the supplemental pleading.
Rule 5(a)(2) ofthe Federal Rules of Civil Procedure provides that "[n]o service is required on
a party who is in default for failing to appear. But a pleading that asserts a new claim for relief must
be served on that party under Rule 4."

Although Irwin had not appeared when plaintiff filed the

amended complaint, plaintiff had not yet moved for entry of default. Thus, Irwin was not technically
in default and should have been served with the new pleading. Accordingly, plaintiff's motion for entry
ofdefault against Irwin Mortgage Corporation is DENIED as moot as a result ofthe amended complaint
[D.E. 40], and the clerk will reissue summons as to this defendant.

~
SO ORDERED. This \'l-day of April2013.

2