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Case 4:11-cv-00239-RP -TJS Document 9

Filed 06/20/11 Page 1 of 2


MICHAEL P. GIROUARD, Plaintiff, v. PLASMERG, INC., Defendant.

4:11-cv-239 RP-TJS


Michael P. Girouard (Plaintiff) filed a complaint on May 24, 2011 (hereinafter the Original Complaint). Clerks No. 1. In the Original Complaint, Plaintiff asserted that this Court had diversity jurisdiction, but failed to properly allege the citizenship of PlasmERG, Inc. (Defendant). On May 25, 2011, the Court ordered Plaintiff to amend its complaint because the allegations of the Original Complaint were not sufficient to confer jurisdiction. See Clerks No. 4. Defendant was served with the Original Complaint that same day. Clerks No. 6. Plaintiff filed a First Amended Complaint on May 26, 2011 (hereinafter the Amended Complaint). Clerks No. 5. Plaintiff now seeks entry of default against Defendant. Clerks No. 7. The apparent basis of Plaintiffs motion1 is that more than 21 days have passed since Defendant was served the Original Complaint. See Aff. in Supp. of Request for Entry of Default J. (hereinafter Konchar Aff.) 3 (Clerks No. 8). It is true that [a] defendant must serve an answer . . . within 21 days after being served with the summons and complaint. Fed. R. Civ. P. 12(a)(1)(A)(I). It is also

Plaintiff has not filed a brief in support of his motion, as required by Local Rule 7(d). That failure constitutes sufficient grounds to deny Plaintiffs motion.

Case 4:11-cv-00239-RP -TJS Document 9

Filed 06/20/11 Page 2 of 2

true that [w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the partys default. Fed. R. Civ. P. 55(a). However, contrary to Plaintiffs suggestion, Plaintiff is not entitled to an entry of default on the Original Complaint. Since the filing of the Amended Complaint, the Original Complaint is no longer the operative complaint in this case. See In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928 (8th Cir. 2005) (It is well-established that an amended complaint supercedes an original complaint and renders the original complaint without legal effect. (emphasis added)). Indeed, there is no indication in the record that Defendant has even been served with the operative complainti.e., the Amended Complaint. See generally Fed. R. Civ. P. 5(a)(1)(B) ([E]ach of the following papers must be served on every party . . . a pleading filed after the original complaint . . . .); see also Konchar Aff. 13 (making no mention of service of the Amended Complaint). Therefore, Plaintiff is not entitled to entry of default. See Fed. R. Civ. P. 12(a)(1)(A)(I) (indicating that a responsive pleading is due within 21 days after being served with the . . . complaint); see also 10A Charles Alan Wright et al. FED . PRAC. & PROC. CIV . 2682 (3d ed.) (Before a default can be entered, the court must have jurisdiction over the party against whom the judgment is sought, which also means that the party must have been effectively served with process. (footnote omitted)). Accordingly, Plaintiffs Request for Entry of Default (Clerks No. 7) is DENIED. IT IS SO ORDERED. Dated this ___20th___ day of June, 2011.