United States District Court, M.D. Florida, Fort Myers Division
KALOYAN ANGUELOV, for himself and on behalf of those similarly situated Plaintiff,
EVENT PARKING, INC. and KENNETH BENSON, Defendants.
MIRANDO United States Magistrate Judge
matter comes before the Court upon review of Plaintiff's
Motion for Clerk's Default (Doc. 45) filed on May 31,
2017. Pursuant to Rule 55(a) of the Federal Rules of Civil
Procedure, Plaintiff seeks entry of Clerk's default
against Defendants Event Parking, Inc. (“Event
Parking”) and Kenneth Benson (“Benson”)
(collectively, “Defendants”). Doc. 45.
April 12, 2016, Plaintiff filed a Complaint & Demand for
Jury Trial (“Complaint”) under the Fair Labor
Standards Act (“FLSA”) against Defendants. Doc.
1. Defendants, however, have not appeared in this matter
since their counsel withdrew as counsel of record with the
Court's permission on August 1, 2016. Doc. 27. Defendants
also have not responded to the Court's Orders directing
Event Parking to retain counsel and Benson to notify the
Court if he wishes to proceed pro se. Docs. 27, 34, 35. As a
result, on December 28, 2016, the undersigned recommended
entering a Clerk's default as to Defendants because they
did not comply with the Court's Orders. Doc. 37. Senior
United States District Judge John E. Steele adopted the
undersigned's Report and Recommendation and directed the
Clerk to enter a default against Defendants. Doc. 38 at 2-3.
Judge Steele also ordered Plaintiff to file a motion for
default judgment within fourteen days of the Order.
Id. at 3. Accordingly, the Clerk entered a default
as to Defendants on January 17, 2017, and Plaintiff filed a
motion for default judgment on January 31, 2017. Docs. 39,
April 14, 2017, Judge Steele denied without prejudice
Plaintiff's motion for default judgment because the facts
did not support that Event Parking is a covered entity under
the FLSA. Doc. 41 at 5. Judge Steele allowed Plaintiff to
amend this deficiency by filing an amended motion or filing
and serving an amended complaint that contains sufficient
factual allegations. Id. at 6. On May 5, 2017,
Plaintiff responded by filing an Amended Complaint &
Demand for Jury Trial (“Amended Complaint”). Doc.
44. On May 31, 2017, Plaintiff filed the present motion,
alleging that he served the Amended Complaint by mailing it
to Defendants. Doc. 45 at 1.
Plaintiff's present motion is moot because the Clerk
already entered a default on January 17, 2017 pursuant to the
Order (Doc. 38). Doc. 39. Regardless, the Court finds that
Plaintiff's service of the Amended Complaint is improper
under the Federal Rules of Civil Procedure. Rule 5(a)(1)(B)
states that a pleading filed after the original complaint
must be served on every party unless ordered otherwise by the
court. Fed.R.Civ.P. 5(a)(1)(B). Rule 5(a)(2) provides an
exception to this general rule, stating that “[n]o
service is required on a party who is in default for failing
to appear.” Fed.R.Civ.P. 5(a)(2). Nonetheless, the rule
makes clear that if a pleading asserts a new claim for relief
against a party in default, the pleading must be served on
that party pursuant to Rule 4. Id.
in this District have held that service under Rule 5(a)(2) is
required if an amended pleading asserts new claims or
materially alters the claims alleged or relief sought.
CliC Goggles, Inc. v. Morrison, No.
6:15-cv-621-Orl-28GJK, 2016 WL 7665442, at *2 (M.D. Fla. June
2, 2016); Amarelis v. Notter Sch. of Culinary Arts,
LLC, No. 6:13-cv-54-Orl-31KRS, 2014 WL 5454387, at *3
(M.D. Fla. Oct. 27, 2014) (finding that the amended complaint
asserted new claims for relief because it named new parties
who were not named in the original complaint); Poitevint
v. Dynamic Recovery Servs., Inc., No.
3:10-cv-700-J-12TEM, 2011 WL 201493, at *1 (M.D. Fla. Jan.
20, 2011) (holding that if changes made in an amended
complaint are not substantial, the requirement of Rule
5(a)(2) does not apply).
the Amended Complaint names a new party and includes
substantial changes to the claims asserted. See
Amarelis, 2014 WL 5454387, at *3; Poitevint,
Inc., 2011 WL 201493, at *1. The Amended Complaint
alleges that Nicolay Korichkov (“Korichkov”) has
joined this case an opt-in plaintiff. Doc. 44 at 9. Counts I,
II, and III of the Amended Complaint reflect this change and
include a demand for judgment in favor of Plaintiff and
Korichkov whereas the Complaint sought judgment in favor of
Plaintiff only on Counts I and III and Plaintiff and those
similarly situated on Count II. Docs. 1 at 7, 9, 11; 44 at
10, 12, 14. Furthermore, Plaintiff materially altered
allegations contained in Count II by alleging them on behalf
of himself and those similarly situated instead of himself
only as he did in the Complaint. Docs. 1 at 7-9, 44 at 11-12.
As a result, the Court finds that Plaintiff must serve the
Amended Complaint pursuant to Rules 4 and 5(a)(2).
Fed.R.Civ.P. 5(a)(2); see CliC Goggles, 2016 WL
7665442, at *2; Amarelis, 2014 WL 5454387,
at *3; Poitevint, Inc., 2011 WL 201493, at *1. The
Court will direct Plaintiff to properly serve Defendants
under Rules 4 and 5(a)(2).
it is hereby
1. Plaintiffs Motion for Clerk's Default (Doc. 45) is
DENIED as moot.
2. Plaintiff shall have up to and including June 15,
2017 to properly serve Defendants under ...