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Lucas v. Desilva Automotive Services, LLC

United States District Court, S.D. Ohio, Western Division

March 31, 2018

VINCENT LUCAS, Plaintiff,
v.
DESILVA AUTOMOTIVE SERVICES, et al., Defendants.

          BOWMAN, M.J.

          ORDER

          Hon. Michael R. Barrett, United States District Judge.

         Plaintiff Vincent Lucas - who is proceeding pro se - alleges that Defendants violated federal law by engaging in illegal telemarketing practices.

         This matter is before the Court on Plaintiff's November 2, 2017 objections (Doc. 123) to the magistrate judge's report and recommendation (Doc. 122), which objections challenge the recommended disposition of the following motions: (1) Plaintiff's Motion for Default Judgment against NexInteractive Inc. and 310 Network, Inc. (Doc. 68); (2) “Plaintiff's Motion for Judgment on the Pleadings or Default and Default Judgment Against Rodolfo Salazar” (Doc. 68); (3) Plaintiff's Motion for Rule 11 Sanctions Against Rodolfo Salazar (Doc. 87); (4) Plaintiff's Motion for Default Judgment Against Callvation, LLC and Jeffrey Torres and Entry of Final Judgment under Rule 54(b) (Doc. 93); and (5) Plaintiff's Motion to Strike (Doc. 115).[1]

         Defendants 310 Network Inc., NexInteractive Inc., and Rodolfo Salazar filed a response (Doc. 125) to the objections on November 16, 2017. This matter is ripe for review.

         I. BACKGROUND

         The magistrate judge accurately described this case's procedural history (Doc. 122), which will not be summarized here except to state the following:

         The undersigned agrees with the magistrate judge's recent description of this case's procedural history as “long and troubled, ” requiring “the Court's attention more than most.” (Doc. 138; PageID 890). Plaintiff alone has filed approximately 30 motions. The magistrate judge recently warned the Parties of the Court's dislike for gamesmanship. (Id. at 891). The Parties should proceed in accordance with the foregoing admonition from the magistrate judge, which admonition the undersigned echoes entirely.

         With that, the Court will turn to Plaintiff's objections.

         II. ANALYSIS

         This Court shall consider objections to a magistrate judge's order on a non-dispositive matter and “shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).

         The Court addresses Plaintiff's objections below, but not necessarily in the Order in which he presents them.

         A. “The Magistrate [Judge] should have recommended granting the Motion for Default Judgment against Callvation and Jeffrey Torres and entry of final judgment against them under Rule 54(b).” (Plaintiff's Objection II)

         Plaintiff argues that the magistrate judge should have granted his motion for default judgment against Defendants Callvation LLC and Jeffrey Torres, specifically objecting to the magistrate judge's conclusion that his “second amended complaint render[ed] moot the prior entries of default against both Defendants on Plaintiff's first amended complaint.” (Doc. 122; PageID 751). Plaintiff argues that the second amended complaint cannot render moot the prior entries of default, because the second amended complaint never became “operative.” He offers the following logic: his second amended complaint added no new claims against Defendants Callvation LLC and Torres; thus, he was not required to serve his second amended complaint on Defendants Callvation LLC and Torres, pursuant to Rule 5(a)(2); thus, he never served the second amended complaint, consistent with Rule 5(a)(2); thus, it never became operative against Defendants Callvation LLC and Torres; thus, it cannot render moot the prior entries of default.

         Rule 5(a)(2) states: “No 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.” According to Plaintiff, Rule 5(a)(2) requires this Court to treat his second amended complaint as operative upon service, not filing. For the reasons stated below, this argument fails.

         Numerous courts have held that an amended complaint becomes operative upon filing, thus mooting a clerk's prior entry of default. Johnson v. Mahlman, No. 1:16-cv-503, 2016 U.S. Dist. LEXIS 167377, at *2 (S.D. Ohio Nov. 3, 2106) (citing Mercer v. Csiky, No. 08-11443, 2010 U.S. Dist. LEXIS 64777 (E.D.Mich. June 30, 2010)(collecting cases)). Accord: Ross v. Teleperformance USA, Inc., No. 3:13-cv-00038, 2013 U.S. Dist. LEXIS 69595, at *3 (S.D.Ohio May 16, 2013); Saint-Gobain Autover, USA, Inc. v. Fuyao Glass Indus. Group Co., No. 05-71079, 2005 U.S. Dist. LEXIS 38111, *4-*5 (E.D. Mich. Dec. 16, 2005); United States ex rel. Simplex Grinnell, LP v. Aegis Ins. Co., No. 1:08-cv-01728, 2009 U.S. Dist. LEXIS 18707, *4 (M.D. Penn. March 5, 2009); Rock v. Am. Express Travel Related Servs. Co., No. 1:08-CV-0853, 2008 U.S. Dist. LEXIS 101909, *4-*5 (N.D.NY Dec. 17, 2008). Plaintiff does not entirely disagree with the foregoing rule. Indeed, he appears to concede that an amended complaint can moot a clerk's prior entry of default, but argues that the entry becomes moot only once the amended complaint is served, because until then the amended complaint is not “operative.” (Doc. 123-1; PageID 765). Plaintiff relies on a non-binding Second Circuit case to support the foregoing proposition of law. Intern. Controls Corp. v. Vesco, 556 F.2d 665, 669 (2nd Cir. 1977). However, Plaintiff misconstrues Vesco, and ignores later caselaw interpreting it.

         In Vesco, the Second Circuit considered "the point in time" at which an amended pleading becomes operative. Id. at 669. Initially, the Second Circuit recognized the “well established” rule that “an amended complaint ordinarily supersedes the original and renders it of no legal effect.” Id. at 668. Tacitly recognizing that the filing of the amended complaint is usually the point at which the amended complaint becomes operative, Vesco created one exception: where the amended complaint must be personally served on a particular defendant pursuant to Rule 5(a)(2), the amended complaint does not supersede the original complaint as to that defendant until personal service is effected. Id. at 669 (“We agree with the court below [that the original complaint is not superseded until the amended complaint is served], at least where, as here, the amended complaint is required to be served under Rule 5(a).”) (emphasis added). In this limited situation, a prior entry of default relating to the original complaint is not automatically mooted by the filing of an amended complaint. The Second Circuit articulated the following rationale:

If it appeared that . . . [obtaining personal] service [a second time] on even one defendant would be difficult . . . the plaintiff might well have to decide not to file an amended complaint, since failure to serve it would, under the rule urged by appellant, leave the plaintiff, which had once had an effective complaint (the original), without any remaining effective complaint on which it could obtain judgment.

Id. In other words, under Vesco, a plaintiff who has personally served a defendant once should not be placed in a worse position if he is unable to personally serve the same defendant a second time. For example, in Vesco, the plaintiff was never able to effect personal service of the amended complaint, which added a new claim against a defendant who had already defaulted on the original complaint. To avoid unfairness to the plaintiff, the district court entered default judgment on the original complaint. Id. at 670. The Second Circuit affirmed. Id. (“Accordingly, in the circumstances of this case, we cannot hold void the judgment entered on the original complaint.”).

         But Vesco creates an exception, not a rule, because the vast majority of amended complaints are excused from personal service. Where an amended pleading is excused from personal service on a defaulting defendant - like Plaintiff's second amended complaint - the “logical extension of Vesco is that [such a] pleading . . . becomes the operative document on filing, not on service.” Allstate Ins. Co. v. Yadgarov, No. 11 Civ. 6187, 2014 U.S. Dist. LEXIS 30068, at *15 (E.D.N.Y. Feb. 10, 2014) (emphasis added).[2]

         The Court recognizes that this principle may be confusing. To make this Court's interpretation of Vesco perfectly clear - and to illustrate why Vesco's default rule operates fairly in the majority of situations, and why its exception rectifies potential unfairness in the minority of situations - the undersigned will offer the below (perhaps overly exhaustive) explanation of the interplay between Vesco's default rule and its single exception.

         1. In the Majority of Situations, Treating an Amended Complaint as Operative Upon Filing Does Not Trigger the Concerns Outlined by the Vesco Court

         In Vesco, the Second Circuit was concerned with protecting a plaintiff's ability to amend his or her complaint to add a new claim against a defendant in default, without fear that an inability to effect personal service a second time would deprive him or her of the ability to fall back on the original complaint, which was successfully served. 556 F.2d at 669. That is, a plaintiff who has personally served a defendant once should not be punished if he is unable to personally serve the same defendant a second time. However, the Vesco concern is triggered relatively infrequently, because effecting personal service on a single defendant more than once is rarely required. Excluding situations where a defendant waives personal service, there are six general scenarios to consider:

a. Plaintiff fails to serve the original complaint on Defendant A; plaintiff later files an amended complaint adding no new claim against Defendant A: The amended complaint becomes operative upon filing because the concerns articulated in Vesco are not present. Vesco was not drafted to protect a plaintiff who amends his complaint without first having effected personal service of the original complaint on Defendant A. That is, a failure to effect personal service of the amended complaint on Defendant A does not leave plaintiff in a worse position with respect to Defendant A.
Thus, to be able to pursue any form of relief against Defendant A, personal service of the amended complaint is required.
b. Plaintiff fails to serve Defendant B the original complaint; Plaintiff later files an amended complaint adding a new claim against Defendant B: The amended complaint becomes operative upon filing because the concerns articulated in Vesco are not present. Vesco was not drafted to protect a plaintiff who amends his complaint without first having effected personal service of the original complaint on Defendant B. That is, a failure to effect personal service of the amended complaint on Defendant B does not leave plaintiff in a worse position with respect to Defendant B.

         Thus, to be able to pursue any form of relief against Defendant B, personal service of the amended complaint is required.

c. Plaintiff serves original complaint on Defendant C; Defendant C timely answers or responds; Plaintiff amends complaint but adds no new claim against Defendant C: In this scenario, service of the amended complaint is required, but not personal service, because Defendant C has appeared. Fed.R.Civ.P. 5(a)(1)(B); 5(b). The amended complaint becomes operative upon filing because the concerns articulated in Vesco are not present. That is, failure of personal service will not leave plaintiff without an “effective complaint” against Defendant C, see Vesco, 556 F.2d at 669, because personal service of the amended complaint is not required.
d. Plaintiff serves original complaint on Defendant D; Defendant D timely answers or responds; Plaintiff files amended complaint that adds new claim against Defendant D: Service of the amended complaint is required, but not personal service, because Defendant D has appeared. Fed.R.Civ.P. 5(a)(1)(B); 5(b). The amended complaint becomes operative upon filing because the concerns articulated in Vesco are not present. That is, failure of personal service will not leave plaintiff without an “effective complaint” against Defendant D, see Vesco, 556 F.2d at 669, because personal service of the amended complaint is not required.
e. Plaintiff serves original complaint on Defendant E; Defendant E fails to timely answer or respond; Plaintiff files amended complaint but adds no new claim against Defendant E (i.e., the scenario in the present case): Service of the amended complaint is not required, personal or otherwise. Fed.R.Civ.P. 5(a)(2). The amended complaint becomes operative upon filing because the concerns articulated in Vesco are not present. That is, failure of personal service will not leave plaintiff without an “effective complaint” against Defendant E, see Vesco, 556 F.2d at 669, because service is not required for the amended complaint to become operative against Defendant E. See Yadgarov, 2014 U.S. Dist. LEXIS 30068, at *15.
f. Plaintiff serves original complaint on Defendant F; Defendant F fails to timely answer or respond; Plaintiff files amended complaint that adds new claim against Defendant F (i.e., the Vesco exception): Personal service of the amended complaint is required. Fed.R.Civ.P. 5(a)(2). As it relates to Defendant F, the amended complaint becomes operative upon service, creating the only exception to the default rule, because the concerns articulated in Vesco are present. A contrary rule could leave plaintiff without an “effective complaint” against Defendant F, see 556 F.2d at 669, if Plaintiff is unable to effect personal service a second time. In other words, treating the amended complaint as operative upon filing may leave plaintiff without a means of obtaining judgment against Defendant F. Thus, if a plaintiff fails to personally serve Defendant F with the amended complaint, where personal service is required under Rule 5(a)(2), a plaintiff may properly fall back on the original complaint for the narrow purpose of seeking default judgment against Defendant F. Where the amended complaint also names any combination of Defendant A through E, or any one of them, the amended complaint will remain operative upon filing against all other defendants.

         As shown above, a default rule deeming an amended complaint operative upon filing against a named defendant rarely results in the injustice highlighted in Vesco, hence the reason Vesco created an exception to a general rule. Therefore, this Court interprets Vesco and its progeny as embracing the default rule that an amended complaint automatically supersedes the original complaint as the operative complaint upon filing, with one narrow exception where personal service of an amended complaint is required under Rule 5(a)(2), i.e., a situation that does not exist in this case.[3] Furthermore, the above framework largely prevents the undesirable scenario in which a docket may become cluttered with multiple, partially operative amended complaints (depending on the status of service in multi-defendant litigation), creating confusion and uncertainty. Yadgar ...


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