Portillo v. Smith Commons Dc, LLC ( 2021 )

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”), D.C. Code
§ 32-1001 et seq., and the District of Columbia Wage Payment and Collection Law
(“DCWPCL”), D.C. Code § 32-1301 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
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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. Id. 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
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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, 2021 WL
3287741, 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., 630 F.3d 217, 227 (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, 2021 WL 1909777, 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., 309
F.R.D. 77, 80 (D.D.C. 2015) (quoting U.S. ex rel. Westrick v. Second Chance Body Armor, Inc.,
893 F. Supp. 2d 258, 268 (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, 893 F. Supp. 2d at 268.
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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, 276 F.R.D. 1, 5 (D.D.C. 2011) (quoting Williams v. GEICO Corp., 792 F. Supp. 2d 58, 65
(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.” Id. The
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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., 97 F.3d 1458, 1996 WL
534049, at *1 (9th Cir. 1996) (unpublished table decision); see also Fluor Eng’rs &
Constructors, Inc. v. S. Pac. Transp. Co., 753 F.2d 444, 449 n.7 (5th Cir. 1985); Varnes v. Local
91, Glass Bottle Blowers Ass’n, 674 F.2d 1365, 1368 n.3 (11th Cir. 1982); 4B Wright & Miller,
Federal Practice and Procedure: Civil § 1146 (2021).
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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, 2021 WL 3287741, 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, 522 F.3d 105, 109 (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.” Id. This requirement also makes sense given that
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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,
2010 WL 2219595, at *3 (N.D. Cal. June 2, 2010) (alterations in original) (quoting Emp.
Painters’ Trust v. Ethan Enters., Inc., 480 F.3d 993, 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, 2021 WL 3287741, at *3. And Plaintiffs have not taken
issue with either of those determinations. Recons. Mot. at 1.
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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.
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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.
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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., 97 F.3d 1458, 1996 WL 534049, at *2 (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., 234 F.R.D.
59, 62 (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, 2000 WL 35619441, 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, 486 B.R.
895, 900 (N.D. Ill.), aff’d, 550 F. App’x 306 (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
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judgment. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: December 16, 2021 RUDOLPH CONTRERAS
United States District Judge
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