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.: 21 : SMITH COMMONS DC, LLC, et al., : : Defendants. :

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR RECONSIDERATION

I. INTRODUCTION

This matter comes before the Court on Plaintiffs’ motion for reconsideration of this

Court’s order that service of process be effected on Defendants pursuant to Federal Rule of Civil

Procedure Rule 4. 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, this Court will deny Plaintiffs’ motion for reconsideration.

II. FACTUAL BACKGROUND

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

Johanna Loaeza (collectively “Plaintiffs”), seek reconsideration of this Court’s order requiring

Plaintiffs to effect service of process on their former managers, Defendants Ronald F. McNeill

and Kamal Chanaka (collectively “Defendants”) under Federal Rule of Civil Procedure 4.

Plaintiffs were employed as kitchen laborers at the restaurant Smith Commons DC, LLC and 1 assert that Defendants routinely failed to pay them minimum as well as overtime wages, and also

refused to provide for paid sick leave. See Am. Compl. ¶¶ 13–55, ECF No. 7.

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., ECF No. 1. Plaintiffs’ counsel served a copy of the original

complaint and a summons on all Defendants. See generally ECF Nos. 2–6 (noting service

completed by January 21, 2020 as to all Defendants). On January 30, 2020, Plaintiffs filed an

amended complaint which joined Plaintiff Loaeza to the suit. See Am. Compl. ¶¶ 8, 44–55.

However, neither the docket nor any other portion of the record reflects service of Plaintiffs’

amended complaint.

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

and Smith Commons, leaving only the two Smith Commons managers, Chanaka and McNeill, as

Defendants in the action. See Notice Vol. Dismissal, ECF No. 10. Defendants Chanaka and

McNeill 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 Nos. 15–16.

Thereafter, Plaintiffs filed a motion for default judgment against Defendants on their

claims for unpaid wages. See Pls.’ Mot. for Default J. (“Pls.’ Mot.”) at 2, ECF No. 18. But

Plaintiffs based 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 Aff. Supp. Default, ECF No. 12;

Clerk’s Entries of Default. This Court denied Plaintiffs’ motion for default judgement for failure

2 to effect proper service of process pursuant to Rule 4 of the Federal Rules of Civil Procedure as

required by Rule 5(a)(2). Portillo v. Smith Commons DC, LLC, No. 20-cv-49-RC,

, at *1 (D.D.C. Aug. 2, 2021). Now, Plaintiffs file a motion for reconsideration with

hopes that this Court will grant them leave to effect service of process under Federal Rule of

Civil Procedure 5 as opposed to Rule 4, noting that all Defendants received a summons when

service of the original complaint was effectuated. Pls.’ Mot. Reconsideration (“Recons. Mot.”)

at 1, ECF No. 21.

III. LEGAL STANDARD

A court may reconsider any interlocutory order under Rule 54(b) “as justice requires,”

Capitol Sprinkler Inspection, Inc. v. Guest Servs.,

(D.C. Cir. 2011) (internal

quotations omitted), but “[i]n this District, that abstract phrase is interpreted narrowly,” In re

Rail Freight Fuel Surcharge Antitrust Litig. (No. II), No. 20-mc-00008,

, at *5

(D.D.C. May 12, 2021) (internal quotations omitted). Reconsideration may be appropriate

“when a court has ‘patently misunderstood the parties, made a decision beyond the adversarial

issues presented, made an error in failing to consider controlling decisions or data, or where a

controlling or significant change in the law has occurred.’” Ali v. Carnegie Inst. of Wash.,

(D.D.C. 2015) (quoting U.S. ex rel. Westrick v. Second Chance Body Armor, Inc.,

(D.D.C. 2012)). “The burden is on the moving party to show that

reconsideration is appropriate and that harm or injustice would result if reconsideration were

denied.” Westrick,

.

3 IV. ANALYSIS

“Valid service of process ‘is necessary to assert personal jurisdiction over a defendant’

and it ‘also notifies the defendant that a party has commenced legal action against it.’” Judd v.

FCC,

(D.D.C. 2011) (quoting Williams v. GEICO Corp.,

(D.D.C. 2011)). In the present case, this Court must determine the appropriate rule governing

how that service of process must be made. Therefore, the Court will first evaluate Federal Rule

of Civil Procedure 5(a)(2) to determine whether Plaintiffs are at liberty to effect service of

process under Rule 5. It will then determine whether Plaintiffs must include a summons with

their first amended complaint when effecting service of process on Defendants.

A. Service Under Rule 5

Federal Rule of Civil Procedure 5 governs the service of certain papers other than the

complaint, including “a pleading filed after the original complaint.” Fed. R. Civ. P. 5(a)(1)(B).

Rule 5(a)(2) provides guidance on service of those papers for parties who are in default, 1 stating,

“[n]o service is required on a party who is in default for failing to appear. But a pleading that

asserts a new claim for relief against such a party must be served on that party under Rule 4.”

Fed. R. Civ. P. 5(a)(2). While the service exception contained in the first sentence of Rule

5(a)(2) could potentially alleviate a plaintiff of the burden of service for an amended complaint

altogether, its second provision contains an important carve-out: that “a pleading that asserts a

new claim for relief against such a party must be served on that party under Rule 4.”

The

1 For Rule 5(a)(2) to apply, “[a] court need not have adjudicated a party as being ‘in default.’ Any party who has failed to appear is a party ‘in default for failure to appear’ for the purposes of the rule.” Anunciation v. W. Cap. Fin. Servs. Corp.,

,

(9th Cir. 1996) (unpublished table decision); see also Fluor Eng’rs & Constructors, Inc. v. S. Pac. Transp. Co.,

, 449 n.7 (5th Cir. 1985); Varnes v. Local 91, Glass Bottle Blowers Ass’n,

, 1368 n.3 (11th Cir. 1982); 4B Wright & Miller, Federal Practice and Procedure: Civil § 1146 (2021).

4 Court held that Plaintiffs’ amended complaint contained “substantial[]” changes, including the

addition of “new unpaid minimum and overtime wages claims” totaling roughly $63,000, which

removed the amended complaint from the service exception in the first clause of Rule 5(a)(2)

and brought it within the scope of Rule 5(a)(2)’s second provision, which mandates service

under Rule 4. Portillo,

, at *3 (emphases added). Plaintiffs do not argue that

no service is required or that the Court erred in treating the Amended Complaint as within the

scope of Rule 5(a)(2)’s second provision, only that service of the amended complaint may be

effected under Rule 5, without a summons. See Recons. Mot. at 1 (“Plaintiffs move the Court to

reconsider its order and to require compliance with Rule 5 (instead of Rule 4) by serving

Defendants with the first amended complaint.”).

The plain text of Rule 5(a)(2) forecloses Plaintiffs’ suggestion. When a pleading falls

under the second provision of Rule 5(a)(2), the text of that provision triggers Rule 4 for the

pleadings in question. 2 Fed. R. Civ. P. 5(a)(2). The fact that Rule 5(a)(2) triggers Rule 4 when

an amended complaint is substantively different from the original is not merely an exercise in

placing “form over substance.” Blair v. City of Worcester,

(1st Cir. 2008).

Rather, it “ensures that a party, having been served, is able to make an informed decision not to

answer a complaint without fearing additional exposure to liability for claims raised only in

subsequent complaints that are never served.”

This requirement also makes sense given that

2 Plaintiffs’ request to effect service of process under Rule 5 may have been permissible “if the original complaint [was] properly served and the defendant [] appeared in the first instance.” Bricklayers & Allied Craftworkers Loc. Union No. 3 v. Palomino, No. C09-01589,

, at *3 (N.D. Cal. June 2, 2010) (alterations in original) (quoting Emp. Painters’ Trust v. Ethan Enters., Inc.,

, 995–96, 999 (9th Cir. 2007)). However, the Court made clear that Defendants have not made an appearance, and that Rule 5(a)(2) applies to Plaintiffs’ amended complaint. Portillo,

, at *3. And Plaintiffs have not taken issue with either of those determinations. Recons. Mot. at 1.

5 Rule 5’s acceptable methods for service are more lenient than Rule 4’s, such as by allowing for

service on an attorney, through electronic court filing, or mailing to the party’s last known

address. See Fed. R. Civ. P. 5(b). Plaintiffs must therefore comply with the more stringent

standards of service under Rule 4 when serving the amended complaint. 3

B. Whether Service Under Rule 4 Requires Service of a New Summons

The more stringent service standards of Rule 4 must undoubtedly be met when serving

the amended complaint on Defendants, but Plaintiffs also question whether it is necessary to

serve a new summons alongside the amended complaint. Recons. Mot. at 1. Their confusion on

this point is understandable. Prior to 2007, Rule 5(a) read in relevant part: “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.” Fed. R. Civ. P. 5(a) (2006) (emphasis added). Moreover, the Advisory

Committee on Rules of Civil Procedure stated in its “Committee Notes on Rules—2007

Amendment” that the changes to Rule 5 were made “as part of the general restyling of the Civil

Rules to make them more easily understood and to make style and terminology consistent

throughout the rules” and that “[t]hese changes are intended to be stylistic only.” Advisory

Comm. Notes to Fed. R. Civ. P. 5 (emphasis added). In sum, Rule 5 could have been understood

to require plaintiffs to adhere to the more stringent standards for service of process set out in

Rule 4 when serving an amended complaint on defendants—but not to require that a new

summons be served along with the amended complaint.

3 Rule 4 also sets a 90-day time limit for service of the summons and complaint, which may be extended for good cause. Fed. R. Civ. P. 4(m). In light of the Court’s present clarification on the issue of service and in the interest of judicial efficiency, the Court extends the time to effectuate service of the Amended Complaint under Rule 4(m) for 90 days from the date of this opinion and order.

6 However, case law preceding the amendment suggests that a new summons was in most

instances required even prior to the change in the language. See Anunciation v. W. Cap. Fin.

Servs. Corp.,

,

(9th Cir. 1996) (unpublished table decision)

(“[W]hen a plaintiff seeks to serve an amended complaint that alleges new claims on a defendant

who has not appeared, the combination of Rules 4 and 5 require a summons to be served together

with a copy of the amended complaint.”); Osrecovery, Inc. v. One Group Int’l, Inc.,

(S.D.N.Y. 2005) (“The requirement under Rule 4 that ‘a summons shall be served

together with a copy of the complaint’ is unambiguous.”); Patel v. Dameron Hosp., No. Civ S–

99–1275,

, at *4 & n.2 (E.D. Cal. June 23, 2000) (stating generally that when

Rule 5(a)(2) triggers Rule 4, a summons must be served together with a copy of the amended

complaint).

In light of the history and the current text of Rule 5, it is clear that Rule 5(a)(2) mandates

that “a new summons must be served with the amended complaint.” In re Kutrubis,

(N.D. Ill.), aff’d,

(7th Cir. 2013) (citing Fed. R. Civ. P. 5(a)(2)).

Accordingly, this Court cannot grant Plaintiffs’ motion for reconsideration, and will require

Plaintiffs to serve the amended complaint and summonses on the Defendants in accordance with

Rule 4.

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for reconsideration is DENIED. Plaintiffs

must serve Defendants Chanaka and McNeill with copies of the First Amended Complaint and

summonses 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

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

contemporaneously issued.

Dated: December 16, 2021 RUDOLPH CONTRERAS United States District Judge

8