Case 1:22-cv-24013-RNS Document 123 Entered on FLSD Docket 06/23/2023 Page 1 of 9

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

CASE NO. 22-CV-24013-SCOLA/GOODMAN

CHENMING ZHOU,

Plaintiff,

v.

THE INDIVIDUALS, PARTNERSHIPS AND

UNINCORPORATED ASSOCIATIONS IDENTIFIED
ON SCHEDULE “A”,

Defendants.
____________________________________________/

ORDER DENYING WITHOUT PREJUDICE (AND WITH LEAVE TO REFILE)

PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

In this patent infringement action, Chenming Zhou (“Plaintiff”) filed a motion for

default judgment against some (but not all) defaulted defendants (collectively,

“Defendants”). 1 [ECF No. 117]. Defendants have not filed a response to Plaintiff’s motion

(or otherwise participated in this lawsuit), and the response deadline has now expired.

United States District Judge Robert N. Scola, Jr. referred this motion to the

Undersigned. [ECF No. 119]. As explained below, Plaintiff’s motion for default judgment

[ECF No. 117] is denied without prejudice (and with leave to refile).

1 In this Order, the term “Defendants” will refer to only those defendants who are
the subject of Plaintiff’s default judgment motion.
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The record reflects that Plaintiff filed both a Complaint [ECF No. 1] and an

Amended Complaint [ECF No. 10]. To date, Plaintiff has filed four (4) proofs of service

or corrected proofs of service. [ECF Nos. 38; 42; 72; 75]. 2 All four proofs of service or

corrected proofs of service refer to only the Complaint (and make no reference to the

Amended Complaint). See [ECF Nos. 38 (“[T]he Law Firm of Rubio & Associates PA

effectuated service of process on the Defendants by emailing copy [sic] of the Complaint,

Issued Summons and Sealed Temporary Restraining Order.” (emphasis added; footnote

omitted)); 42 (same); 72 (“[T]he Law Firm of Rubio & Associates PA effectuated service

of process on the Defendants identified in Schedule A herein enclosed, by emailing copy

[sic] of the Complaint, Issued Summons and Sealed Temporary Restraining Order.”

(emphasis added; footnote omitted); 75 (same)]. 3

Plaintiff filed three (3) motions for entry of clerk’s defaults. [ECF Nos. 60; 73; 115].

All three motions for entry of a clerk’s default referenced only the Complaint (and not

2 There is one earlier proof of service [ECF No. 28], which also refers to only the
Complaint (not the Amended Complaint). See [ECF No. 28 (“[O]n January 13, 2023 (after
having received e-mail contact information for Defendants), the Law Firm of Rubio &
Associates PA effectuated service of process on the Defendants by emailing copy [sic] of
the Complaint, Issued Summons and Sealed Temporary Restraining Order.” (emphasis
added; footnote omitted))]. But that document was stricken by Plaintiff, see [ECF No 37],
and will not be considered here.

3 While it is certainly possible that Plaintiff served a copy of the Amended Complaint
on Defendants, the Undersigned was unable to locate ether a return of service or a
certificate of service for the Amended Complaint.
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the Amended Complaint).

The Clerk did not enter a clerk’s default on the first motion because there was no

return of summons or a waiver of service. [ECF No. 61 (“Summons (Affidavit) Returned

Executed OR Waiver of Service Executed - has NOT been entered on docket showing

which individual defendants were served.” (capitalization in original)].

Plaintiff obtained Clerk’s Defaults on the second and third motions. [ECF Nos. 73;

76; 115; 116]. Both these motions refer to only the Complaint (as opposed to the Amended

Complaint). See, e.g., [ECF No. 73, p. 2 (“Defendants have failed to answer or otherwise

respond to the Complaint, or serve a copy of any Answer or other response upon

Plaintiff’s attorneys of record.” (emphasis added)); ECF No. 115, p. 2 (“Defendants have

failed to answer or otherwise respond to the Complaint, or serve a copy of any Answer

or other response upon Plaintiff’s attorneys of record.” (emphasis added))]. Because

Plaintiff’s motions for clerk’s default [ECF Nos. 73; 115] referenced only the Complaint

and made no reference to the Amended Complaint, Plaintiff obtained Clerk’s Defaults

against Defendants based solely on the Complaint.

Federal Rule of Civil Procedure 5(a)(2) states 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 against such a party must be served on that party under Rule 4.” Fed. R. Civ. P.

5(a)(2) (emphasis added). Here, at the time the Amended Complaint [ECF No. 10] was

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filed, December 5, 2022, no Defendant was yet in default. In fact, no Defendant had yet

been served. 4 Therefore, Plaintiff was required to serve the Amended Complaint on

Defendants under Rule 5.

Defendants should have been served with a copy of the Amended Complaint but

all of Plaintiff’s proofs of service or corrected proofs of service [ECF Nos. 38; 42; 72; 75]

make reference to only the Complaint (and no reference to the Amended Complaint). 5

On June 7, 2023, Plaintiff filed the instant motion seeking the entry of a final default

judgment. [ECF No. 117]. Plaintiff’s motion is replete with references to both the

Complaint and the Amended Complaint and seeks to rely on allegations made in both

documents. See, e.g., id. at 2 (“The time for Defaulting Defendants to respond to the

4 Judge Scola did not authorize alternative service of process on Defendants until
December 22, 2022. [ECF No. 17]. By then, the Amended Complaint had already been
filed and was the operative pleading in the case.

5 The earliest (not-stricken) proof of service was filed by Plaintiff on January 23,
2023. [ECF No. 38]. It states, in part, as follows:

As related to the summons in this case issued for Gearking and all other
Defendants identified in Schedule ‘A’ of the Complaint, on January 13, 2023
(after having received e-mail contact information for Defendants), the Law
Firm of Rubio & Associates PA effectuated service of process on the
Defendants by emailing [a] copy of the Complaint, Issued Summons and
Sealed Temporary Restraining Order.

Id. at 1 (emphasis added; footnote omitted). By that date, the Amended Complaint had
already been filed and Defendants should have been served with it (not the Complaint).
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Complaint/Amended Complaint (hereinafter ‘Complaint’ / ‘Amended Complaint’) has

expired.” (emphasis added)); id. at 3 (“Plaintiff has expended a significant amount of

resources in connection with intellectual property enforcement efforts, including legal

fees and investigative fees to protect its patent against counterfeit actions. See Pl.’s Am.

Compl. (ECF No. [sic] 11).” (emphasis added)); id. at 5 (“[T]he goodwill associated with

Plaintiff’s 664 Patent is being harmed and if Defendants’ willful and intentional infringing

activities are not preliminarily and permanently enjoined by this Court, Plaintiff and the

consuming public will continue to be harmed. See Zhou Decl. at ¶¶ 16-20 (ECF No. 11);

see also Pl.’s Am. Compl. at ¶ 27 (ECF No. 10).” (emphasis added)).

To confuse matters further, attorney Humberto Rubio’s declaration refers to the

Complaint and the Amended Complaint collectively as the “Complaint.” [ECF No. 117-

1, ¶ 3 (“On December 12, 2022, Plaintiff filed its Complaint (ECF No. 1) later amended

and filed on December 20, 2022 (ECF No. 10) (collectively ‘Complaint’) against

Defendants, the Individuals, Partnerships and Unincorporated Associations identified on

Schedule ‘A’ (collectively, ‘Defendants’).”)]. But there is no such thing as a combined,

“collective” pleading.

There can be only one operative complaint. See Walker v. United Parcel Serv., Inc.,

No. 18-CIV-61155-CV, 2018 WL 5017783, at *1 (S.D. Fla. May 31, 2018) (“An amended

complaint operates as a complete substitute for (rather than a mere supplement to) the

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present complaint. In other words, an amended complaint supersedes the original in its

entirety, making the original as if it never existed. Therefore, reference to a prior

pleading or another document is unacceptable -- once Plaintiff files an amended

complaint, the original pleading or pleadings will no longer serve any function in this

case.” (quoting Vasquez v. Pierce Cnty. Jail, No. 12-5268 BHS/KLS, 2012 WL 1377098, at *5

(W.D. Wash. Apr. 18, 2012) (emphasis added)).

The Undersigned acknowledges that there is significant overlap between the

allegations in the Complaint [ECF No. 1] and the Amended Complaint [ECF No. 10] and

that both pleadings consist of one count of patent infringement pursuant to 35 U.S.C. §

271. But “[b]ecause default judgments are ‘disfavored,’ they require ‘strict compliance

with the legal prerequisites establishing the court’s power to render the judgment.’”

Oxebridge Quality Res. Int’l, LLC v. LaBelle, No. 8:20-CV-2176-CEH-SPF, 2023 WL 3227154,

at *2 (M.D. Fla. May 3, 2023) (quoting Varnes v. Local 91, Glass Bottle Blowers Ass’n, 674 F.2d

1365, 1369 (11th Cir. 1982)). Based on this record, the Undersigned cannot conclude that

Defendants have been served with the operative complaint (the Amended Complaint) or

that Plaintiff has obtained a Clerk’s Default based on the Amended Complaint.

If Plaintiff is going to move for default judgment based on allegations in the

Amended Complaint, then Plaintiff first needs to show proof of service for the Amended

Complaint and the entry of a Clerk’s Default on the Amended Complaint. Alternatively,

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(assuming arguendo that the strategy is even legally permissible) if Plaintiff could

proceed on the original Complaint (the only pleading which the record reflects has been

served on Defendants and for which Plaintiff has obtained two Clerk’s Defaults), then

Plaintiff’s motion, proposed order, and supporting exhibits should not include any

references to the Amended Complaint. In either case, it is procedurally improper for

Plaintiff to do what it has done here: proceed (against the same Defendants) on both the

Complaint and Amended Complaint.

For the reasons stated above, Plaintiff’s default judgment motion is denied

without prejudice and with leave to refile (if appropriate). The evidentiary hearing

previously set for July 7, 2023 before the Undersigned is cancelled.

Any re-filed default judgment motion must cite to specific paragraphs of the

operative complaint and/or declaration(s) and may not cite to the entire pleading or

declaration to support singular facts. Moreover, any refiled motion will identify the

elements of a patent infringement claim and identify (by paragraph number) those factual

allegations in the operative pleading which support those elements.

If any renewed motion seeks to proceed on the Amended Complaint, then Plaintiff

will need to show both proof of service of the Amended Complaint and the entry of a

Clerk’s Default based on the Amended Complaint. If Plaintiff intends to proceed on the

original Complaint, then Plaintiff will cite legal authority to support the reliance on the

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original Complaint when an amended pleading has been filed on the docket and will

identify as to each Defendant that is the subject of Plaintiff’s renewed motion, the

corresponding return of summons (ECF Nos. 38; 42; 72 or 75) and the corresponding

Clerk’s Default (ECF Nos. 76 or 116). The memorandum will, if legally correct, explain

how a default judgment can be obtained on the original Complaint when an Amended

Complaint was filed (and superseded the initial Complaint).

Lastly, Plaintiff’s motion asks the Court to compare Defendants’ infringing goods

with Plaintiff’s patents:

A simple comparison of Defendants’ infringing goods with Plaintiff’s 664

Patent and any layman can observe Defendants’ blatant infringement of
Plaintiff’s exclusive patent as the images that depict the design are virtually
exact duplicates or substantially similar images to Plaintiff’s 664 Patent. See
Plaintiff’s 664 Patent (Pl.’s Am. Compl. at Ex. 1 (ECF No. 10-1) against
screenshots of Defendants’ products on their e-commerce stores. See
Schedule B (ECF No. 12 1-9), Rubio TRO Decl. at ¶ 5 (ECF No. 12) and Zhou
Decl. at ¶¶ 12-14 (ECF No. 11).

[ECF No. 117, p. 5]. But Schedule “B” in ECF No. 12 is more than 1,400 pages. Therefore,

Plaintiff’s renewed motion (or supporting exhibit) (whether it is based on the Complaint

or the Amended Complaint) will cite by page number the corresponding representative

web page captures and order samples in Schedule “B” of ECF No. 12 on a defendant-by-

defendant basis.

Plaintiff will provide a copy of this Order to those Defendants who are the subject

of its motion in the same manner in which the Court authorized alternative service of
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process on Defendants. [ECF No. 22]. Plaintiff will file a notice of compliance on CM/ECF

by no later than Friday, June 30, 2023.

DONE AND ORDERED in Chambers, in Miami, Florida, on June 23, 2023.

Copies furnished to:

The Honorable Robert N. Scola, Jr.
All Counsel of Record