Hall v. Plant City Motorsports, LLC et al

Middle District of Florida, flmd-8:2017-cv-00090

ORDER denying as moot {{9}} Motion for Entry of Clerk's Default. Signed by Magistrate Judge Julie S. Sneed on 3/15/2017. (LBL)

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PageID 35 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN HALL, Plaintiff, v. Case No: 8:17-cv-90-T-36JSS PLANT CITY MOTORSPORTS, LLC and JERROD JAMES MONAGHAN, Defendants. ___________________________________/ ORDER THIS MATTER is before the Court on Plaintiff's Motion for Entry of Clerk's Default ("Motion"). (Dkt. 9.) For the reasons that follow, the Motion is denied as moot. Plaintiff filed a complaint on January 11, 2011, which was served, along with the summons, on Defendant Plant City Motorsports, LLC ("Plant City"), on January 18, 2017. (Dkts. 1, 11.) In the Motion, Defendant moves for entry of clerk's default as to Plant City. As Plant City's time to answer or otherwise respond to the complaint has elapsed, Fed. R. Civ. P. 12(a)(1), entry of clerk's default would ordinarily be appropriate. However, on January 23, 2017, Plaintiff filed an amended complaint. (Dkt. 8.) No return of executed service of the amended complaint has been filed. "Under the Federal Rules, an amended complaint supersedes the original complaint." Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d 1356, 1358 (11th Cir. 1982); Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. & Canada, 674 F.2d 1365, 1370 (11th Cir. 1982) ("As a general rule, an amended complaint supersedes and replaces the original complaint unless the amendment specifically refers to or adopts the earlier pleading."). Likewise, "[t]he filing of an amended complaint similarly cures a party's default as to the superseded original complaint." Montgomery Bank, N.A. v. Alico Rd. Bus. PageID 36 Park, LP, No. 2:13-CV-802-FTM-29CM, 2014 WL 757994, at *2 (M.D. Fla. Feb. 26, 2014). Here, Plaintiff served Plant City with the original complaint, but the original complaint has been superseded by the amended complaint, and proof of service has not been shown as to the amended complaint. Therefore, default as to the superseded original complaint is improper, and the Motion is denied as moot. Accordingly, the Plaintiff's Motion for Entry of Clerk's Default (Dkt. 9) is DENIED as moot. DONE and ORDERED in Tampa, Florida, on March 15, 2017. Copies furnished to: Counsel of Record -2-