B. AVANT EDENFIELD, District Judge
Plaintiff Laurie Ann Pitts, on behalf of her minor son George Lofton Pitts V, brought this products liability action against defendant Seneca Sports, Inc. (Seneca). Doc. # 1. But Seneca failed to respond, so Pitts moved, under F.R.Civ.P.55, for entry of default and default judgment. Doc. # 27.
Citing Pitts's failure "to plead (much less establish) a prima facie case [of liability] against Seneca" in her Complaint, the Court denied that motion because it failed to meet F.R.Civ.P. 55's minimum standards. Doc. # 33 at 3. In response, Pitts moves for either: (1) reconsideration; (2) leave to amend her Complaint; or (3) remand to state court. Doc. # 35.
Yet, she offers no new arguments or evidence to support her reconsideration motion. Nor does she allege a sufficient basis ( e.g., lack of jurisdiction) for remand here. Doc. # 35.
That leaves only her motion for leave to amend. Having already once amended her Complaint, doc. # 7, Pitts now seeks this Court's leave to do it again. F.R.Civ.P.15(a) says that "leave shall be freely given when justice so requires," and the Court sees no reason to deny it. See, e.g., F.D.I.C. v. Weise Apartments, 192 F.R.D. 100, 104 (S.D.N.Y. 2000) (leave to amend pleading is freely given in absence of any apparent or declared reason, such as undue delay, bad faith, or dilatory motive and when amendment does not cause prejudice to opposing party).
For that matter, it was the insufficiency (under Rule 55, not F.R.Civ.P. 8) of Pitt's Complaint that kept her from obtaining a default judgment against Seneca, which has never responded in any form. Allowing her to cure that insufficiency by amendment seems both logical and fair. See doc. # 33 at 3-4.
But, as noted in the Court's last Order, due process considerations may arise if she amends her Complaint (to satisfy Rules 8 and 55) and serves it under F.R.Civ.P.5, as opposed to complying with F.R.Civ.P.4's more demanding (thus more due-process-compliant) requirements.
Constitutional due process requires that notice of adverse judicial action be reasonably calculated to apprise the defendant of the action and afford an opportunity to defend. Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950).
Under Rule 5(a),
every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on
parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
(Emphasis added).
For starters, a number of documents mailed to Seneca have been returned. See, e.g., doc. # 27 exh. A ¶ 11; Court's 5/20/04 docket entry ("CT Corporation mailed amended complaint which was sent to Seneca Sports, Inc., to Clerk's Office with letter stating, `According to our records our statutory representation services were discontinued and all process sent to the last known address on our records were returned as undeliverable'").
Too, Pitts (in her original Complaint) never even pled (under Rule 55) a "default-judgment-grantable" claim, though she did plead a claim for relief under Rule 8's more modest requirements (again, then, she was not entitled to a default judgment, doc. # 33 at 3-4). So Seneca can argue that it could ignore her case outright (albeit at its risk that she might satisfy Rule 55 before the Court ruled on her default-judgment motion) and otherwise (in the meantime) rest on her failure to satisfy Rule 55.
But what if the Court allows her to amend her Complaint (to fill in the Rule 55 gaps) and re-serve it under Rule 5, as opposed to Rule 4? And what if Pitts then simply mails a copy of her Amended Complaint via simple First Class mail only to see it come back as "undeliverable"? It seems further likely that she will then move for, and expect, a Rule 55 default judgment — with Seneca effectively provided no notice it was coming (precisely why Rule 4, albeit more costly, is the safer way to go here).
See Rule 5(b)(2)(B) (stating that acceptable method of service is to mail copy to last known address of person served and that such service is complete upon mailing).
That would bring the Court to one reasonable possibility: Seneca, once hit with collection efforts under Pitts's newly granted default judgment on her amended Complaint, cries foul and moves this Court to set the judgment aside under Rule 55(c) ("For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with [F.R.Civ.P.] 60(b)"), claiming that:
(a) it was entitled to ignore the original, Rule 55-deficient Complaint outright;
(b) it never received notice of (under Rule 5 service) the amended Complaint (and thus any follow-up, renewed default-judgment motion);
(c) this Court's grant of leave to amend the original Complaint was the functional equivalent to sanctioning an entire new lawsuit, if not the "new or additional claims for relief" language contained in Rule 5(a),
see supra note 2, which itself (to uphold due-process minimums) requires full Rule 4 service.
But of course, this is all hypothetical because Seneca has not even appeared in this case, much less raised such an argument (hence, the issue is not ripe), and may be avoided if plaintiff precautiously utilizes Rule 4 service on her Amended Complaint. She thus makes her (Rule 4 versus Rule 5) service decision in this light.
Accordingly, the Court GRANTS plaintiff Laurie Ann Pitt's motion for leave to amend her Complaint. (doc. # 35). To keep this case from clogging the Court's docket, plaintiff has 120 days ( see Rule 4(m)) to amend and effectuate whichever service she elects, after which the Court shall Rule 4(m)-dismiss her case without prejudice.
NOTICE OF REMOVAL; FILING FEE $150.00 RECEIPT # 402593 (wwp) [Entry date 10/29/03]
CERTIFICATE pursuant to Local Rule 3.2. by defendant Mattel, Inc. (wwp) [Entry date 10/29/03]
NOTICE to attorney of Removal by Mattel, Inc. (wwp) [Entry date 10/29/03]
General ORDER of instructions to the parties 26(f). (signed by Magistrate Judge G.R. Smith); [EOD Date 10/29/03] copies served. (wwp) [Entry date 10/29/03]
CERTIFICATE OF SERVICE by Mattel, Inc. (wwp) [Entry date 10/29/03]
NOTICE to State Court of Removal by Mattel, Inc. (wwp)
AMENDED COMPLAINT by Laurie Ann Pitts (Answer due 11/13/03 for K-Mart Corporation, for Seneca Sports, Inc., for K-Mart Holding, for Mattel, Inc.) amending (ssl) [Entry date 11/04/03]
CERTIFICATE pursuant to Local Rule 3.2. by plaintiff Laurie Ann Pitts (ssl) [Entry date 11/04/03]
WAIVER OF SERVICE Returned Executed as to Fisher-Price, Inc. Answer due on 1/2/04 for Fisher-Price, Inc. (ssl) [Entry date 11/04/03]
MOTION by Fisher-Price, Inc. to Strike certain allegations of Plaintiff's Complaint with brief in support. (ssl) [Entry date 11/04/03]
Motion(s) referred: [10-1] motion to Strike certain allegations of Plaintiff's Complaint referred to Magistrate Judge G.R. Smith (ssl) [Entry date 11/04/03]
ANSWER to Complaint by Fisher-Price, Inc. (Attorney Christopher Phillips), (ssl) [Entry date 11/04/03]
Litigants' Bill of Rights filed by Fisher-Price, Inc. (wwp)
ORDER granting [10-1] motion to Strike certain allegations of Plaintiff's Complaint (signed by Judge B. Avant Edenfield); [EOD Date 11/7/03] copies served. (wwp)
SUMMONS(ES) issued for Seneca Sports, Inc. (wwp) [Entry date 11/10/03]
Rule 26(f) report filed by Laurie Ann Pitts, Mattel, Inc., K-Mart Holding, Seneca Sports, Inc., K-Mart Corporation, Fisher-Price, Inc. . (ssl) [Entry date 12/16/03]
SCHEDULING ORDER setting Joining of parties, amending of pleadings by 1/2/04; Expert witness report by plaintiff due by 3/5/04; Expert witness report by Defendant due by 4/3/04; Discovery cutoff 4/21/04; Motion Filing deadline on 5/21/04; Status Report due on 3/2/04; signed by Magistrate Judge G.R. Smith copies served. (wwp) [Entry date 12/22/03]
MOTION by K-Mart Holding, K-Mart Corporation for attorney Nicole Wolfe Stout to Appear Pro Hac Vice. with brief in support. (ssl)
MOTION by K-Mart Holding, K-Mart Corporation for attorney James S. Strawinski to Appear Pro Hac Vice. with brief in support. (ssl)
Pro Hac Vice paid by Nicole Wolfe Stout for defendant K-Mart Corporation, James S. Strawinski for defendant K-Mart Corporation Receipt # 402960 Date: 12/23/03 (ssl)
Motion(s) referred: [17-1] motion for attorney James S. Strawinski to Appear Pro Hac Vice. referred to Magistrate Judge G.R. Smith, [16-1] motion for attorney Nicole Wolfe Stout to Appear Pro Hac Vice. referred to Magistrate Judge G.R. Smith (ssl)
ORDER granting [16-1] motion for attorney Nicole Wolfe Stout to Appear Pro Hac Vice. Attorney added to case. (signed by Magistrate Judge G.R. Smith); [EOD Date 1/9/04] copies served. (ssl) [Entry date 01/09/04]
ORDER granting [17-1] motion for attorney James S. Strawinski to Appear Pro Hac Vice. Attorney added to case. (signed by Magistrate Judge G.R. Smith); [EOD Date 1/9/04] copies served. (ssl) [Entry date 01/09/04]
ORDER Confidentiality Stipulation and Protective Order (signed by Judge B. Avant Edenfield); [EOD Date 2/4/04] copies served. (lne)
ORDER Qualified Protective Order (signed by Judge B. Avant Edenfield); [EOD Date 2/4/04] copies served. (lne)
JOINT STATUS REPORT by Laurie Ann Pitts, K-Mart Holding, Seneca Sports, Inc., K-Mart Corporation, Fisher-Price, Inc. (kts) [Entry date 03/04/04]
MOTION by Laurie Ann Pitts to Extend Time for producing expert witness reports (kts) [Entry date 03/04/04]
Motion(s) referred: [23-1] motion to Extend Time for producing expert witness reports referred to Magistrate Judge G.R. Smith (kts) [Entry date 03/04/04]
ORDER granting [23-1] motion to Extend Time for producing expert witness reports resetting Scheduling Order Deadlines: expert witness report for plaintiff on 3/25/04 expert witness report for defendant due 4/23/04 (signed by Magistrate Judge W. Leon Barfield); [EOD Date 3/8/04] copies served. (cmk)
MOTION by Laurie Ann Pitts to Extend Time deadlines for producing expert witness reports with brief in support. (lne)
Motion(s) referred: [25-1] motion to Extend Time deadlines for producing expert witness reports referred to Magistrate Judge G.R. Smith (lne)
RESPONSE by Fisher-Price, Inc. to [25-1] motion to Extend Time deadlines for producing expert witness reports by Laurie Ann Pitts (kts) [Entry date 03/31/04]
MOTION by Laurie Ann Pitts for Entry of Default as to Seneca Sports, Inc., for Default Judgment against Seneca Sports, Inc. with brief in support. (wwp) [Entry date 04/13/04]
ORDER granting [25-1] motion to Extend Time deadlines for producing expert witness reports (signed by Magistrate Judge G.R. Smith); [EOD Date 4/15/04] copies served. (kts) [Entry date 04/15/04]
SCHEDULING ORDER setting Expert witness report by plaintiff due by 4/21/04; Expert witness report by Defendant due by 5/21/04; Discovery cutoff 6/1/04; Motion Filing deadline on 7/1/04; Summary Judgment deadline on 7/1/04; signed by Magistrate Judge G.R. Smith copies served. (kts)
MOTION by Laurie Ann Pitts for Leave to File To Voluntarily Dismiss with prejudice KMART Corp., KMART HOLDING CORP., and FISHER-PRICE, Inc. as party defendants with brief in support. (lne) [Entry date 04/21/04]
MEMORANDUM by Laurie Ann Pitts in support of [30-1] motion for Leave to File To Voluntarily Dismiss with prejudice KMART Corp., KMART HOLDING CORP., and FISHER-PRICE, Inc. as party defendants by Laurie Ann Pitts (lne) [Entry date 04/21/04]
ORDER granting [30-1] motion for Leave to File To Voluntarily Dismiss with prejudice KMART Corp., KMART HOLDING CORP., and FISHER-PRICE, Inc. as party defendants (signed by Judge B. Avant Edenfield); [EOD Date 4/22/04] copies served. (wwp)
ORDER denying [27-1] motion for Entry of Default as to Seneca Sports, Inc., denying [27-2] motion for Default Judgment against Seneca Sports, Inc. Within 15 days of the date this order is served, plaintiff shall show why the Court should not dismiss this case without prejudice. (signed by Judge B. Avant Edenfield); [EOD Date 5/20/04] copies served. (wwp)
CT Corporation mailed amended complaint which was sent to Seneca Sports, Inc., to the Clerk's Office with letter stating, "According to our records our statutory representation services were discontinued and all process sent to the last known address on our records were returned as undeliverable." (nys) [Entry date 05/21/04]
JOINT STATUS REPORT by Laurie Ann Pitts (wwp) [Entry date 05/26/04]
MOTION by Laurie Ann Pitts for Reconsideration of [33-1] order with brief in support. (wwp)
ORDER granting [35-1] motion for Reconsideration of [33-1] order. The Court grants pla' Laurie Ann Pitt's motion for leave to amend her complaint (signed by Judge B. Avant Edenfield); [EOD Date 6/15/04] copies served. (kts)