UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EMILIANO DE JESUS PORTILLO, et al., : : Plaintiffs, : Civil Action No.: 20-49-RC : v. : Re Document No.: 18 : SMITH COMMONS DC, LLC, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR DEFAULT JUDGMENT

I. INTRODUCTION

This matter comes before the Court on Plaintiffs’ motion for default judgment pursuant to

Federal Rule of Civil Procedure 55(b)(2). Plaintiffs, four restaurant employees, seek monetary

relief from their former managers for unpaid wage claims brought under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C § 201 et. seq., the District of Columbia Minimum Wage Act

(“DCMWA”),

et. seq., and the District of Columbia Wage Payment and

Collection Law (“DCWPCL”),

et. seq. Upon review of the record and all

relevant documents, the Court will deny Plaintiffs’ motion at this time for failure to effect proper

service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure.

II. FACTUAL BACKGROUND

Plaintiffs Emiliano De Jesus Portillo, William Castaneda Tejada, Angel Romero, and

Johanna Loaeza (collectively “Plaintiffs”), seek default judgment against their former managers,

Defendants Ronald F. McNeill, and Kamal Chanaka (collectively “Defendants”). Plaintiffs were

employed as kitchen laborers at the restaurant Smith Commons DC, LLC, located at 1926 Benning Road, NE Washington D.C., for various periods from 2015 to 2019. 1 See Am. Compl.

¶ 3–6, ECF No. 7. During their employment, Plaintiffs performed several functions including

food preparation, sanitation, and service. See Pls.’ Mot. for Default J. (“Pls.’ Mot.”) at 2, ECF

No. 18. Plaintiffs assert that Defendants routinely failed to pay them minimum as well as

overtime wages, and also refused to provide for paid safe and sick leave. See Am. Compl. ¶ 2.

Plaintiffs allege that despite often working over 40 hours a week, Defendants failed to pay

overtime wages calculated at one and a half times Plaintiffs’ typical hourly rate. See Pls.’ Mot at

2. Instead, Defendants paid Plaintiffs in cash, at a rate below Plaintiffs’ typical hourly rate for

overtime hours.

On January 9, 2020, Plaintiffs Portillo, Romero, and Tejada filed suit against the

restaurant Smith Commons, its owner Jerome Bailey, and managerial employees Mr. McNeill

and Mr. Chanaka. See Compl. ¶ 2. Plaintiffs’ counsel served a copy of the original complaint

and summons on all Defendants. See Serv. Doc., ECF No. 2–6 (noting service completed by

January 22, 2020 as to all Defendants). On January 30, 2020, Plaintiffs filed an amended

complaint which joined Plaintiff Loaeza to the suit. See Am. Compl. ¶¶ 3, 6. The amended

complaint added new claims for unpaid minimum and overtime wages by Plaintiff Loaeza

against all Defendants.

at 6–7. However, neither the docket nor any other portion of the

record reflects service of Plaintiffs’ amended complaint.

1 Plaintiff Portillo worked at Smith Commons from approximately February 12, 2016, through October 31, 2019. See Pls.’ Mot. at Ex. A (“Portillo Decl.”) ¶ 3, ECF No. 18-1. Plaintiff Tejada worked at Smith Commons from approximately December 30, 2016, through September 19, 2019. See Pls.’ Mot. at Ex. B (“Tejada Decl.”) ¶ 3, ECF No.18-2. Plaintiff Romero worked at Smith Commons from approximately June 2015 through October 17, 2019. See Pls.’ Mot. at Ex. C (“Angel Decl.”) ¶ 3, ECF No.18-3. Plaintiff Loaeza worked at Smith Commons from approximately October 5, 2018, through October 31, 2019. See Pls.’ Mot. at Ex. D (“Loaeza Decl.”) ¶ 3, ECF No. 18-4.

2 On May 22, 2020, Plaintiffs voluntarily dismissed their claims against Defendants Bailey

and Smith Commons, leaving only the two Smith Commons managers, Defendants Chanaka and

McNeill, remaining as Defendants in the action. See Notice Vol. Dismissal at 1, ECF No. 10.

As such, Plaintiffs’ motion for default judgment is brought against only Defendants Chanaka and

McNeill. See Pls.’ Mot. at 2.

Defendants have not responded to the litigation in any capacity. On August 7, 2020, after

Defendants failed to respond to the ongoing litigation, the Clerk entered default as to both

Defendants. See Clerk’s Entries of Default, ECF No. 15–16. Presently, Plaintiffs seek default

judgment only on their claims for unpaid wages, brought under the FLSA. See Pls.’ Mot. at 2.

But Plaintiffs base their motion for default on Defendants’ failure to respond to the original

complaint—not the operative amended complaint.

at 6 (citing to service of the original

complaint). Additionally, both the requests for entry of default and the subsequent entries of

default were entered as to only the original complaint. See Clerk’s Entries of Default.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 55 governs default judgment procedures. Fed. R. Civ. P.

55. Rule 55(a) permits entry of default judgment “[w]hen a party against whom a judgment for

affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by

affidavit or otherwise.” Accordingly, Rule 55 sets out a two-step procedure a plaintiff must

follow to obtain a default judgment. See Bricklayers & Trowel Trades Int’l Pension Fund v.

Kafka Constr., Inc.,

(D.D.C. 2017). First, the plaintiff must request

that the Clerk of the Court enter default against the nonresponsive party.

Second, the

plaintiff must move for entry of default judgment.

Upon entry of default, the defaulting

defendant is deemed to have admitted every “well-pleaded allegation in the complaint.” AARP v.

3 Sycle,

(D.D.C. 2014) (quoting Int’l Painters & Allied Trades Indus.

Pension Fund v. Auxier Drywall,

(D.D.C. 2008)). As a result, default

judgments are disfavored, as “modern courts are . . . reluctant to enter and enforce judgments

unwarranted by the facts.” Jackson v. Beech,

(D.C. Cir. 1980). This is

because strong policy interests support the resolution of cases based on their merits, as it seems

“inherently unfair” to use the court’s power to issue judgments as a penalty for filing delays.

As such, the determination of whether default judgment is proper is committed to the discretion

of the trial court. Int’l Painters,

(citing Jackson,

).

Practically, this means that entry of default judgment is not automatic. Mwani v. Osama

Bin Laden,

(D.C. Cir. 2005). As a preliminary matter, a court must assure itself

that it has personal jurisdiction over the absent defendant. Braun v. Islamic Republic of Iran,

(D.D.C. 2017). Service of process is the means by which a court asserts

jurisdiction, thus, it is uniformly held that a default judgment cannot be issued where the

requirements of proper service have not been satisfied. See Gates v. Syrian Arab Republic,

(D.D.C. 2009) (citing Combs v. Nick Garin Trucking,

(D.C. Cir. 1987)). Consequently, before a court can exercise personal jurisdiction over a

defendant and issue a default judgment, the procedural requirement of proper service of

summons must be satisfied to confirm that proper notice has been provided to the defendant. See

Toms v. Hantman,

(D.D.C. 2008). The Court will accordingly begin its

analysis by evaluating the adequacy of the service of process on the Defendants.

IV. ANALYSIS

Plaintiffs have moved for default judgment in light of Defendants’ failure to respond to

the original complaint. While a default judgment can be entered against unresponsive parties

4 who have failed their obligation to respond, the obligation to respond is not triggered until proper

service is actually effectuated. See Scott v. District of Columbia,

(D.D.C.

2009) (finding that “although default may be entered upon a defendant’s failure to plead or

otherwise defend . . . a defendant’s obligation to respond to a complaint arises only upon service

of the summons and complaint”) (emphasis added); see also Judd v. FCC,

(D.D.C. 2011) (denying motion for default judgment because defendant agencies had no

obligation “to plead or otherwise respond” in the absence of service of process).

Although the original complaint was properly served on the Defendants, and a certificate

of default was issued by the Clerk of Court following their failure to respond to the original

complaint, see Serv. Doc.; see also Clerk’s Entries of Default (filed August 7, 2020), the

complaint had already been amended by the time Plaintiffs moved for a certificate of default.

See Am. Compl. (filed January 30, 2020). And upon review of the record, the Court finds that

Plaintiffs have failed to provide any evidence that they properly effected service of their

amended complaint. Under Federal Rule of Civil Procedure Rule 5(a), service is required for

any pleading filed after the original complaint. Fed. R. Civ. P. 5(a)(1)(B). While Rule 5(a)(2)

does provide an exception under which no service is required on parties who are in default for

failing to appear, this exception does not apply when an amended pleading adds a new party to

the action or asserts new claims for relief against the defaulting parties. Fed. R. Civ. P. 5(a)(2).

For the subsequent reasons, the Court believes Plaintiffs’ amended complaint falls outside the

exception of Rule 5(a)(2), and is subject to the service requirement of Rule 5(a).

When an amended complaint simply restructures the pleading or adds context to the facts

alleged, service on a defaulting party is not required under Rule 5(a)(2). See, e.g., Blais v.

Islamic Republic of Iran,

(D.D.C. 2006) (service not necessary where

5 amended complaint simply put defendants on notice that plaintiffs’ claims were grounded in

state law); Maalouf v. Islamic Republic of Iran, No. 16-cv-0280,

, at *4

(D.D.C. Jan. 22, 2021) (no service required where amended complaint rephrased facts alleged

elsewhere in the complaint, grounded causes of action in D.C. law, and incorporated discussions

of prior court decisions). However, when new parties, claims, or substantive factual changes are

added to an amended complaint, service on the defaulting party is required under Rule 5(a) of the

Federal Rules of Civil Procedure. See Strange v. Islamic Republic of Iran, No. 14-cv-435,

, at *4 (D.D.C. May 06, 2016) (requiring service of an amended complaint when

plaintiffs added four new claims not previously alleged in the original complaint); Belkin v.

Islamic Republic of Iran,

(D.D.C. 2009) (finding that service was not

required when plaintiff’s amended complaint “did not substantially change the allegations in the

original complaint, and did not add new defendants”).

In the instant case, this Court finds Plaintiffs’ amended complaint to be substantially

different from the original complaint in several respects, such that service is required under Rule

5(a)(2). First, the amended complaint adds a new plaintiff to the action who asserts independent

claims for relief. See Am. Compl. ¶¶ 3, 6; see also Lemon Tree Dev. LLC v. Philopatyr Corp.,

No. 10-cv-5228,

, at *2 (E.D.N.Y. Dec. 20, 2011) (discussing how “caselaw

teaches that having amended [a] complaint and added new parties, [a] plaintiff should not . . . be

permitted to pursue a default judgment on the original pleading”). Second, the amount of

damages sought by the Plaintiffs in the amended complaint, exceeds the amount of damages

requested in the original complaint by $63,000. Compare Compl. at 13 ($172,939.50) with Am.

Compl. at 15 ($236,040.20). See Bricklayers & Allied Craftworkers Local Union No. 3 v.

Palomino, No. 09-cv-01589,

, at *5 (N.D. Cal. June 2, 2010) (noting default

6 judgment was inappropriate in part due to differences in the original complaint which sought

damages for a shorter period of time, and the amended complaint, which extended the period and

was not properly served on defendants); see also Fed. R. Civ. P. 54(c) (“A default judgment must

not differ in kind from, or exceed in amount, what is demanded in the pleadings.”). Third, new

facts not previously alleged in the original complaint are raised in the amended complaint with

respect to Plaintiff Loaeza. 2 See Am. Compl. ¶¶ 3, 6. The incorporation of these facts, which

serve as the basis for Plaintiff Loaeza’s new unpaid minimum and overtime wages claims, also

require renewed service under Rule 5(a)(2). See JBR, Inc. v. Cafe Don Paco, Inc., No. 12-cv-

02377,

, at *1 (N.D. Cal. Sep. 30, 2014) (concluding that addition of new

factual allegations, without addition of new claims, does not require service) (emphasis added).

For these reasons, this Court concludes that service of the amended complaint is required under

Rule 5(a) of the Federal Rules of Civil Procedure. Fed. Civ. P. 5(a)(1)(B).

Furthermore, even setting aside the service issue, Plaintiffs’ present motion must still be

denied. This Court has previously held that when a motion for default judgment is based upon a

complaint that “no longer forms the basis in [a] litigation,” the motion cannot proceed. Cont’l

Transfert Technique Ltd. v. Fed. Gov’t of Nigeria,

(D.D.C. 2010). When

Plaintiffs amended the original complaint, the amended complaint became the operative

complaint in the litigation. See Pinson v. United States DOJ,

(D.D.C.

2014) (stating that “[i]t is well established that once an amended complaint is filed, it supersedes

the original complaint, thereby making the first complaint . . . devoid of any legal effect and

making the new complaint the operative document”). Yet here, Plaintiffs incorrectly assert that

2 New facts include Plaintiff Loaeza’s employment start and end dates, job functions, pay rate, and wages owed. See Am. Compl. ¶ 44–55.

7 Defendants’ failure to respond to the original complaint entitles them to default judgment. See

Pls.’ Mot. at 6. But the default request submitted to the Clerk of this Court was only in regard to

the original complaint, not the amended complaint, and Plaintiffs’ have not shown that

Defendants have failed to plead or defend as to the operative amended complaint, as required.

See Fed. R. Civ. P. 55(a). Consequently, Plaintiffs have erroneously relied upon the original

complaint, which has no legal effect in the present litigation, and does not require a response by

the Defendants. As a result, the Court finds that entry of a default judgment would be improper

under these circumstances.

Accordingly, in the absence of proper service of process, and due to Plaintiffs’ reliance

on the original complaint as the basis for their motion, this Court cannot enter default judgment

against Defendants Chanaka and McNeill at this time.

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Default Judgment is DENIED.

Plaintiffs must serve Defendants Chanaka and McNeill a copy of the First Amended Complaint

and summons pursuant to Rule 4 of the Federal Rules of Civil Procedure. Should the Defendants

continue to engage in unresponsive behavior, Plaintiffs may refile their motion for default

judgment. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: August 2, 2021 RUDOLPH CONTRERAS United States District Judge

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