Case 6:16-cv-00680-RBD-GJK Document 21 Filed 08/12/16 Page 1 of 6 PageID 308
`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`ORLANDO DIVISION
`
`Case No: 6:16-cv-680-Orl-37GJK
`
`
`
`LIGHTING SCIENCE GROUP
`CORPORATION,
`
`Plaintiff,
`
`
`
`
`v.
`
`ENERGY EFFICIENT LIGHTING
`COMPANY LIMITED,
`
`Defendant.
`
`/
`
`ORDER TO SHOW CAUSE
`
`
`
`
`
`
`This matter comes on for consideration sua sponte upon a review of the docket in this case.
`
`The case presents an interesting procedural history. On April 21, 2016, pursuant to 35 U.S.C. §
`
`271, et. seq., Plaintiff filed a complaint (the “Complaint”) against the Defendant alleging willful
`
`patent infringement of three patents – the ‘518, ‘918, and ‘844 Patents (collectively, the “Patents”)
`
`– owned by Plaintiff. Doc. No. 1 at 1-8. On April 26, 2016, Plaintiff mailed a copy of the
`
`Complaint and a Waiver of the Service of Summons (the “Waiver”) to Defendant. Doc. Nos. 14;
`
`17 at ¶ 2; 19 at ¶ 3.
`
`On June 20, 2016, Plaintiff filed an amended complaint (the “Amended Complaint”)
`
`against Defendant, alleging only direct infringement and narrowing the claims at issue with respect
`
`to the Patents. Doc. No. 13 at 1-8. The Eleventh Circuit has held that an amended pleading
`
`supersedes the original pleading. Pintando v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243
`
`(11th Cir. 2007). In Pintando, 501 F.3d at 1243, the Eleventh Circuit explained:
`
`As a general matter, “[a]n amended pleading supersedes the former
`pleading; the original pleading is abandoned by the amendment, and
`is no longer a part of the pleader's averments against his adversary.”
`
`

`
`Case 6:16-cv-00680-RBD-GJK Document 21 Filed 08/12/16 Page 2 of 6 PageID 309
`
`Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V
`OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006)
`(citation and quotation omitted); Fritz v. Standard Sec. Life Ins. Co.,
`676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal Rules, an
`amended complaint supersedes the original complaint.”). In this
`case, once the amended complaint was accepted by the district court,
`the original complaint was superceded [sic]. . . .
`
`Id. Thus, on June 20, 2016, when the Amended Complaint was filed, the Complaint was
`
`abandoned and superseded. Id.
`
`On June 22, 2016, Defendant executed the Waiver for the Complaint, which Plaintiff filed
`
`on June 23, 2016. Doc. No. 14. The Waiver was signed by a corporate representative of the
`
`Defendant and provides that Defendant has received a copy of “the complaint,” waives service
`
`thereof, and shall have sixty (60) days from April 26, 2016, to file a response. Doc. No. 14. On
`
`its face, the Waiver appears to apply to the Complaint, which was abandoned prior to Defendant’s
`
`execution of the Waiver, because the Waiver states the Defendant was sent copy of the complaint
`
`on or about April 26, 2016. Doc. No. 14. Yet, the Amended Complaint was not filed until June
`
`20, 2016, nearly two (2) months later. Doc. No. 13.
`
`The Amend Complaint does not contain a Certificate of Service. Doc. No. 13 at 1-8; see
`
`Fed. R. Civ. P. 5(d)(1) (requiring a certificate of service for all papers filed after the complaint).
`
`In subsequently filed documents, Plaintiff asserts a copy of the Amended Complaint was “timely
`
`delivered to [Defendant].” Doc. No. 19 at ¶ 4 (declaration of Plaintiff’s counsel). Yet, Plaintiff
`
`also alleges that “[o]n June 23, 2016, counsel for [Defendant] accepted service of the Amended
`
`Complaint.” Doc. No. 17 at ¶ 4. Plaintiff has provided a June 23, 2016 email from Justin Miller,
`
`Esq., who purportedly represents Defendant. Doc. No. 19-1 at 2.1 Mr. Miller’s email states that
`
`he represents the Defendant, he has “received and reviewed the amended complaint,” he is
`
`
`1 Mr. Miller has not formally made an appearance in this action on behalf of Defendant.
`
`
`
`2
`
`

`
`Case 6:16-cv-00680-RBD-GJK Document 21 Filed 08/12/16 Page 3 of 6 PageID 310
`
`attaching a signed waiver of summons, and he inquires about “pre-answer settlement discussions.”
`
`Doc. No. 19-1 at 2. Thus, although Mr. Miller received the Amended Complaint, the record does
`
`not contain a waiver of service from Defendant as to the Amended Complaint and nothing suggests
`
`Mr. Miller represents the Defendant in this action. Id. Accordingly, it is unclear on what basis
`
`Defendant was properly served with the Amended Complaint.
`
`To date, Defendant has not filed a response to the Amended Complaint and has not
`
`otherwise appeared. See Rogers v. Harford Life and Acc. Ins. Co., 167 F.3d 933, 938 (5th Cir.
`
`1999) (“Thus, like accepting formal service of process, executing a waiver of service of process
`
`does not constitute an appearance for purposes of Rule 55(b)(2).”). On July 27, 2016, Plaintiff
`
`filed a motion for entry of Clerk’s default with respect to the Amended Complaint. Doc. No. 15
`
`at 2. On July 28, 2016, pursuant to Rule 55(a), Federal Rules of Civil Procedure, the Clerk entered
`
`default against Defendant. Doc. No. 16.
`
`
`
`On August 10, 2016, Plaintiff filed a motion for default judgment (the “Motion”), a
`
`separate memorandum of legal authority in support of the Motion, and a declaration from
`
`Plaintiff’s counsel in support of the Motion. Doc. Nos. 17-19. In the Motion and affidavit,
`
`Defendant states: “[o]n June 23, 2016, counsel for [Defendant] accepted service of the Amended
`
`Complaint, and returned the Waiver . . . which was filed on the same day.” Doc. Nos. 17 at ¶ 4;
`
`19 at ¶ 5. Citing Rule 15(a)(3), Federal Rules of Civil Procedure, Plaintiff maintains that
`
`Defendant had until July 26, 2016 to file a response to the Amended Complaint. Doc. No. 17 at ¶
`
`5.
`
`Rule 15(a)(3), Federal Rules of Civil Procedure, provides “any required response to an
`
`amended pleading must be made within the time remaining to respond to the original pleading or
`
`within 14 days after service of the amended pleading, whichever is later.” Id. Assuming
`
`
`
`3
`
`

`
`Case 6:16-cv-00680-RBD-GJK Document 21 Filed 08/12/16 Page 4 of 6 PageID 311
`
`arguendo, Defendant was properly served with the Amended Complaint on June 23, 2016, then,
`
`pursuant to Rule 15(a), Federal Rules of Civil Procedure, Defendant’s deadline to file a response
`
`would be July 11, 2016. See Fed. R. Civ. P. 15(a)(3) (response due within 14 days); Fed. R. Civ.
`
`P. 6(d) (3 days are added for mailing). It is unclear how Plaintiff determined that Defendant had
`
`until July 26, 2016, to file a response to the Amended Complaint if service was properly perfected
`
`on June 23, 2016.
`
`Based on the foregoing, it appears the Amended Complaint is an improper pleading
`
`because it fails to contain a certificate of service, the Amended Complaint has not been formally
`
`served on Defendant, and no waiver of service has been executed with respect to the Amended
`
`Complaint. For example, the Waiver is clearly addressed to the Complaint, which Plaintiff
`
`abandoned before Defendant executed the Waiver. If the Waiver was intended to apply to the
`
`Amended Complaint, it could not have been sent to the Defendant until June 20, 2016, the date the
`
`Amended Complaint was filed. Moreover, if Defendant executed a waiver with respect to the
`
`Amended Complaint on June 23, 2016, a response would not be due until August 19, 2016. See
`
`Doc. No. 14 (providing Defendant with 60 days from the date the Waiver was sent to file a
`
`response). Thus, there are substantial questions as to whether the Amended Complaint should be
`
`stricken and Clerk’s entry of default should be vacated. Plaintiff has not addressed any of these
`
`issues. Therefore, Plaintiff will be given an opportunity to do so. Accordingly, Plaintiff will be
`
`directed to show cause in writing why the Amended Complaint should not be stricken and the
`
`Clerk’s entry of default should not be vacated.
`
`Based on the foregoing, it is hereby ORDERED that:
`
`
`
`4
`
`

`
`Case 6:16-cv-00680-RBD-GJK Document 21 Filed 08/12/16 Page 5 of 6 PageID 312
`
`1. On or before August 30, 2016, Plaintiff shall SHOW CAUSE IN WRITING why
`
`the Amended Complaint should not be stricken and the Clerk’s entry of default should
`
`not be vacated;
`
`2. In its written response, Plaintiff shall provide a detailed memorandum of law and
`
`factual arguments addressing:
`
`a. Why the Amended Complaint (Doc. No. 13) should not be stricken for failing
`
`to contain a certificate of service. See Fed. R. Civ. P. 5(d)(1);
`
`b. Why the Waiver (Doc. No. 14) should not be deemed void since it was executed
`
`two (2) days after Plaintiff abandoned the Complaint;
`
`c. Why the Waiver (Doc. No. 14) is applicable to the Amended Complaint since
`
`the effective date of the Waiver is nearly two months prior to date the Amended
`
`Complaint was filed;
`
`d. Assuming arguendo, the Waiver applies to the Amended Complaint, why
`
`Defendant should not have sixty (60) days from June 20, 2016, to file a response
`
`to the Amended Complaint;
`
`e. The precise method of delivery and/or service of the Amended Complaint,
`
`including whether Mr. Miller’s receipt and review of same operates as proper
`
`service on the Defendant; and
`
`f. Why should Plaintiff not be required to serve the Amended Complaint under
`
`Rule 4 or obtain a new waiver of service from Defendant; and
`
`3. Failure to respond to this order in the time provided or failure to address any of the
`
`issues set forth above may result in the striking of the Amended Complaint and setting
`
`aside the Clerk’s entry of default.
`
`
`
`5
`
`

`
`Case 6:16-cv-00680-RBD-GJK Document 21 Filed 08/12/16 Page 6 of 6 PageID 313
`
`DONE and ORDERED in Orlando, Florida on August 12, 2016.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Copies furnished to:
`
`Counsel of Record
`Unrepresented Parties
`
`
`
`6