United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND DEFENDANT'S MOTION TO SET ASIDE DEFAULT AS MOOT; AND GRANTING PLAINTIFF'S REQUEST FOR ATTORNEYS' FEES AND COSTS [Dkt. Nos. 68, 71.]
GONZALO P. CURIEL, District Judge.
Before the Court are Plaintiff's motion for default judgment and Defendant's motion to set aside default. (Dkt. No. 68.) Oppositions and replies were filed. (Dkt. Nos. 74, 77, 78, 79.) The Court finds the matter suitable for decision on the papers, without oral argument, pursuant to Civil Local Rule 7.1(d)(1). For the reasons stated below, the Court DENIES Plaintiff's motion for default judgment, DENIES Defendant's motion to set aside default as moot, and GRANTS Plaintiff's request for attorneys' fees and costs.
On June 14, 2013, Plaintiff Wahoo International, Inc. ("Plaintiff" or "Wahoo") filed a complaint against Defendant Phix Doctor, Inc. ("Defendant" or "Phix Doctor") alleging causes of action for: (1) Trademark Infringement, 15 U.S.C. § 1114; (2) Trademark Dilution, 15 U.S.C. § 2235(c); (3) False Designation of Origin, 15 U.S.C. § 1125(A); (4) Injury to Business Reputation and Dilution, California Business & Professions Code section 14247; (5) Common Law Passing Off and Unfair Competition; and (6) Unfair Competition, California Business & Professions Code section 17200. (Dkt. No. 1.) On September 17, 2013, Plaintiff filed a motion for entry of default for Defendant's failure to appear or otherwise respond to the complaint. (Dkt. No. 6.) On September 27, 2013, Anthony Gowen ("Gowen"), the principal of Phix Doctor attempted to file an answer; however the document was rejected because a corporation may not appear without an attorney pursuant to Local Civil Rule 83.3k. (Dkt. No. 13.)
On November 8, 2013, the Court held an order to show cause hearing why the default should not be entered for failing to have counsel appear as required of all corporations appearing before the court pursuant to Civil Local Rule 83.3k. (Dkt. No. 15.) At the hearing, defense counsel appeared and the Court denied Plaintiff's motion for entry of default and allowed Defendant to file an answer to the complaint by November 12, 2013. (Id.) Defendant failed to file a response to the complaint by November 12, 2013. Consequently, on November 18, 2013, Plaintiff filed another request for entry of default. (Dkt. No. 16.) Default was entered on November 20, 2013. (Dkt. No. 17.) On December 30, 2013, Defendant filed a motion to set aside default. (Dkt. No. 26.) On March 17, 2014, the Court granted Defendant's motion to set aside default and denied Plaintiff's request for attorney's fees and costs and directed Defendant to file a responsive pleading within fourteen days. (Dkt. No. 34.)
On April 3, 2014, Defendant filed a late motion to dismiss. (Dkt. No. 36.) On May 14, 2014, Plaintiff filed an ex parte motion for temporary restraining order. (Dkt. No. 40.) On May 20, 2014, the Court denied Plaintiffs' ex parte motion for a temporary restraining order. (Dkt. No. 47.) On June 24, 2014, the Court also denied Defendant's motion to dismiss. (Dkt. No. 49.)
Because Defendant failed to file an answer after the Court denied Defendant's motion to dismiss, on July 17, 2014, Plaintiff filed its third request for entry of default. (Dkt. No. 53.) Entry of default was entered a second time on July 18, 2014. (Dkt. No. 54.)
On August 22, 2014, Plaintiff filed a motion for leave to amend the complaint to add Gowen, the principal of Defendant Phix Doctor. (Dkt. No. 59-1.) On October 28, 2014, the Court granted Plaintiff's motion for leave to amend the complaint. (Dkt. No. 73.) An amended complaint was filed on November 4, 2014. (Dkt. No. 75.)
Prior to the Court's order granting Plaintiff's motion for leave to amend the complaint, on October 10, 2014, Plaintiff filed a motion for default judgment against Defendant Phix Doctor, Inc. on the original complaint. (Dkt. No. 68.) An opposition and reply were filed. (Dkt. Nos. 77, 79.) On October 15, 2014, Defendant filed a motion to set aside default. (Dkt. No. 71.) An opposition and reply were filed. (Dkt. Nos. 74, 78.)
A. Plaintiff's Motion for Default Judgment and Defendant's Motion to Set Aside Default
Plaintiff asserts that the Court may enter judgment on the original complaint despite the filing of an amended complaint because the "filing of an amended complaint does not open the default entered against a particular defendant unless the amendment asserts new or additional claims for relief against that defendant." (Dkt. No. 68 at 13.) Plaintiff cites to Federal Rule of Civil Procedure 5(a)(2), which states that an amended complaint does not need to be served on a defendant who is in default unless the amended complaint asserts new or additional claims for relief against the defendant. In opposition, Defendant argues that the amended complaint supersedes the original complaint and therefore, the motion for default judgment is moot.
It is "hornbook law" that an amended complaint supersedes the original complaint. See Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). "Once a plaintiff files an amended complaint, the original pleading no longer serves any function in the case." Id .; Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956) ("[A]n amended pleading supersedes the original, the latter being treated thereafter as non-existent.... Once amended, the original no longer performs any function as a pleading."); see also Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (an amended pleading supersedes the original); Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967) (same).
District courts have held an amended complaint does not supersede the original complaint until properly served. See J&J Sports Prods., Inc. v. Mac's Bar and Grille, LLC, No. 12cv1584-GMN-DW, 2014 WL 650854, at *8 (D. Nev. Feb. 11, 2014); Bricklayers and Allied Craftworkers Local Union No. 3 v. Palomino, No. C-09-1589-CS(DMR), 2010 WL 2219595, at *5 n. 8 (N.D. Cal. June 2, 2010) (citing Int'l Controls Corp. v. Yesco, 556 F.2d 665, 669 (2d Cir. 1977) (holding that where an amended complaint is required to be served under Rule 5(a)(2), the amended complaint does not supersede the original complaint until properly served); Blair v. City of Worcester, 522 F.3d 105, 109 (1st Cir. 20089) (noting that "it is doubtful that the unserved complaint in fact superseded the original complaint"); Doe v. Unocal Corp., 27 F.Supp.2d 1174, 1180 (C.D. Cal. 1998) (commenting that the rule on supersedure "more likely to be adopted" by the Ninth Circuit is the Second Circuit rule that an original complaint is not superseded until proper service of the amended complaint.) In Anunciation v. W. Capital Finan. Servs., Corp., 97 F.3d 1458 (9th Cir. 1996), in an unpublished decision, the Ninth Circuit cited to the Second Circuit for the proposition that an amended complaint does not supersede an original complaint until it is properly served. Id . The Ninth Circuit went on to hold that the original complaint remains viable on default judgment when an amended complaint is not properly served. Id .; but see Chilko v. Lorren, No. 07cv1316 OWW GSA, 2008 WL 4468995, at *2 (E.D. Cal. Sept. 30, 2008) (granting motion for leave to file an amended complaint and deeming Plaintiff's motion for default judgment withdrawn and vacating default entered); Miller v. Woodford, No. Civ. S-07-1646 LKK EFB P, 2009 WL 2365716, at *2 (E.D. Cal. July 31, 2009), report and recommendation adopted 2009 WL 3233903 ...