Brown v. Cox et al
Filing
21
OPINION AND ORDER that the Court hereby VACATES the Clerk's May 2,2011, Entry of Default as to Defendant Cox. Plaintiff is hereby ORDERED to serve the Amended Complaint on Defendant Cox within 45 days of the date of this Order. Signed by District Judge Robert G. Doumar and filed on 9/9/11. (jcow, )
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IN THE UNITED STATES DISTRICT COUR
FOR THE EASTERN DISTRICT OF VIRGINI
NORFOLK DIVISION
——
FILED
8EP "9 2011
CHK.
Ci.CH
U.S. PISTrtiCT COURT
ALAN J. BROWN,
Plaintiff,
v.
CIVIL NO. 2:llcvl84
STEVEN D. COX, et al
Defendants.
OPINION AND ORDER
In the instant action, Plaintiff Alan J. Brown ("Plaintiff) seeks to sue Defendants Steven
D. Cox, Shawn Norman, and David Browning ("Defendants"), over injuries he sustained as a
result of a boating accident on August 28,2010.
On March 29, 2011, Plaintiff filed a Complaint
alleging various causes of action against Defendants, each of whom were served with notice of the
Complaint on April 6,2011.
While Defendants Norman and Browning filed an Answer and
Motion to Dismiss within the 21-day period following service, Defendant Cox did not.
Plaintiff
moved for entry of default against Defendant Cox, and default was entered by the Clerk of this
Court on May 2,2011, pursuant to Federal Rule of Civil Procedure 55(a).
On July 27,2011, the
Court issued an Opinion and Order granting Defendants' Norman and Browning Motion to
Dismiss Plaintiffs Complaint, and granting Plaintiff leave to amend his Complaint.
On August
17,2011, Plaintiff filed an Amended Complaint.
An amended pleading supersedes the original and renders it of no legal effect.
City of Mount Ranier. 238 F.3d 567, 572 (4th Cir. 2001). Further, when a complaint is
Young v.
substantively amended following a default, it operates to reopen that default.
B.R. 751,754 (Bankr. N.D.I11. 1982).
In re Johnson. 24
Although Defendant Cox defaulted as to Plaintiffs
original Complaint, Plaintiff reopened that default by filing an Amended Complaint that addressed
the substance of the pleadings in this case.
Plaintiff is therefore required to serve his Amended
Complaint on Defendant Cox in conformance with Federal Rule of Civil Procedure 4.
Although
Plaintiffs 120-day service deadline under Rule 4(m) has expired, the Court finds good cause to
extend the time for service of the Amended Complaint.
Accordingly, the Court hereby VACATES the Clerk's May 2,2011, Entry of Default as to
Defendant Cox.
Plaintiff is hereby ORDERED to serve the Amended Complaint on Defendant
Cox within 45 days of the date of this Order.
The Clerk is DIRECTED to deliver a copy of this Opinion and Order to all Counsel of
Record in this case.
Mi
IT IS SO ORDERED.
V
lX8£S&M
UNITED STATES DISTRICT JUDGE
Norfolk, Virginia
September Q ,2011
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