Opinion
4:23-CV-05091-MKD
07-19-2024
WAI CONSTRUCTION GROUP, LLC., Plaintiff, v. WAVE QUANTUM, INC., HARVEY PRICKETT, Defendants.
ORDER DENYING PLAINTIFF'S SECOND MOTION FOR DEFAULT JUDGMENT
ECF No. 23
MARY K. DIMKE UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff's Second Motion for Default Judgment. ECF No. 23. For the following reasons, the Court denies the motion.
Plaintiff filed a Second Amended Complaint on July 18, 2024. ECF No. 21. Plaintiff contemporaneously filed the instant motion for default judgment. ECF No. 23. However, because Plaintiff has not filed proofs of service of the Second Amended Complaint and the Clerk has not entered default on Plaintiff's Second Amended Complaint, Plaintiff's motion is premature. See ThermoLife Int'l, LLC v. Sechel Holdings, Inc., 2015 WL 1521779, at *2 (D. Ariz. Apr. 3, 2015) (“In this case, the Clerk of Court entered default on Plaintiff's original complaint. At this time, default has not been entered on Plaintiff's Amended Complaint. Consequently, default judgment on the Amended Complaint would be improper because no default has been entered on the Amended Complaint.”) (citation omitted); id. at *1 (“Because Plaintiff's original complaint no longer performs any function, a default based on the original complaint must also be rendered ineffectual and non-existent.”) (citation and internal quotation marks omitted).
Before the Court may consider a motion for default judgment, Plaintiff must: (1) serve the Second Amended Complaint; (2) file proofs of service of the same; and (3) at the proper time, if Defendants fail to respond, move the Clerk for entry of default on the Second Amended Complaint, consistent with Federal Rule of Civil Procedure 55.
Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's Second Motion for Default Judgment, ECF No. 23, is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to file this order and provide copies to counsel.