IN RE: Jody Lynn RIDDER (2025)

ORDER

THIS MATTER is before the Court upon the Motion for Entry of Default, Default Judgment, Determination of Nondischargeability, and Request for Ongoing Disclosure Remedies (“Motion for Default”)¹ and Motion for Entry of Default or to Strike Untimely and Insufficient Answer (“Motion to Strike Answer”)² filed by Paul Albert and Leigh (“Plaintiffs”).

PROCEDURAL HISTORY

• Plaintiffs filed a Complaint 3 seeking a determination of non-dischargeability against Jody Lynn Ridder (“Defendant”) on August 13, 2025. A summons was issued by the Clerk of Court on August 13, 2025.4 Plaintiffs did not file a certificate of service of the Complaint.

• Plaintiffs filed an amended complaint shortly thereafter on August 15, 2025 (“First Amended Complaint”).5

• Plaintiffs filed a certificate of service of the First Amended Complaint and the summons on August 20, 2025.6

• The certificate of service for the First Amended Complaint stated Plaintiffs attempted to serve Defendant by certified mail at 525 Sunseeker Dr., Unit B, Myrtle Beach, SC 29579—the address listed as Defendant's address in her petition—but USPS was unable to complete the delivery.7

• Plaintiffs then emailed Richard Steadman, who served as Defendant's counsel in her underlying bankruptcy case, but was not retained to represent Defendant in this adversary proceeding, to report their unsuccessful attempt to serve the summons and First Amended Complaint.

• On August 21, 2025, the summons became stale.

• Without leave of the Court, Plaintiffs filed a second amended complaint on August 27, 2025 (“Second Amended Complaint”)8, which added a cause of action under Va. Code Ann. § 59.1-196 et seq (“Virginia Consumer Protection Act”).

• Plaintiffs filed a certificate of service of the Second Amended Complaint on August 28, 2025,9 attesting to service of the Second Amended Complaint, but not the summons, on Richard Steadman via CM/ECF 10 and on Defendant by first-class U.S. Mail.

• On September 25, 2025, Plaintiffs filed the Motion for Default on the basis that Defendant failed to timely file an answer to the Second Amended Complaint.

• Plaintiffs requested a reissued summons on September 30, 2025,11 and the Clerk of Court reissued the summons on the same date.12

• On October 7, 2025, the First Amended Complaint was delivered to Defendant.13

• On October 7, 2025, Plaintiffs filed a certificate of service attesting to delivery of the Second Amended Complaint and the re-issued summons by USPS Ground Advantage on October 6, 2025. Plaintiffs also stated that they sent the same to Defendant via USPS First Class Mail on October 4, 2025, but did not specify a date of delivery.14

• On October 8, 2025, the reissued summons became stale.

• Defendant filed an Answer to the Complaints on November 3, 2025, but did not file a certificate of service.15

• Plaintiffs filed the Motion to Strike Answer on November 6, 2025.16

• Defendant filed an Amended Answer on November 7, 2025, which was appended with a certificate of service, dated October 31, 2025, stating Defendant mailed a copy of her Answer to Plaintiffs.17

The Court held a status hearing on November 13, 2025, to address certain deficiencies in Plaintiffs’ attempts to serve Defendant and Plaintiffs’ second amendment to the Complaint. Plaintiffs appeared at the hearing pro se, but Defendant did not appear. Plaintiffs submitted into evidence the signature card showing Defendant signed and accepted service of the First Amended Complaint on October 7, 2025.

CONCLUSIONS OF LAW

At the hearing, the Court made an oral ruling granting entry of default as to the First Amended Complaint. However, upon a thorough review of the record and the evidence presented by Plaintiffs, the Court finds that Plaintiffs cannot be granted an entry of default pertaining to Defendant's untimely answer to the First Amended Complaint because it was not properly served by first-class mail. Though Plaintiffs properly served the Second Amended Complaint by first-class mail, the Court finds an entry of default as to that complaint is also improper because it was filed without leave of this Court pursuant to Fed. R. Civ. P. 15(a)(2).

The Court has a duty to ensure that relief is afforded to a plaintiff only after due process and proper notice—even in the absence of opposition to the complaint. In re Hutto, 647 B.R. 294, 296 (Bankr. D.S.C. 2022) (citing In re Kennedy, 403 B.R. 363, 365 (Bankr. D.S.C. 2009)). Proper service of process is necessary to provide a defendant with notice that complies with constitutional requirements of due process and to establish that the Court has personal jurisdiction over the defendant. Id. The plaintiff bears the burden of demonstrating that personal jurisdiction exists. Id. (internal citations omitted).

Service of a summons and complaint in an adversary proceeding is governed by Fed. R. Bankr. P. 7004. Id. A plaintiff conducting service pursuant to Rule 7004 must strictly comply with the Rule's requirements. Id. at 296 – 297 (citing Kennedy, 403 B.R. at 365 for its holding that “[b]ecause the method of service [under Rule 7004] is not burdensome, it is all the more important to strictly comply with service requirements.”). However, “where ‘the process gives the defendant actual notice of the pendency of the action, the rules, in general, are entitled to a liberal construction.’ ” Smith v. Kelso, No. 2:20-CV-0180-DCN, 2020 WL 3964806, at *3 (D.S.C. July 13, 2020) (quoting Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984)). “Indeed, ‘[w]hen there is actual notice, every technical violation of the rule or failure of strict compliance may not invalidate the service of process.’ ” Id. (citing Armco, 733 F.2d at 1089).

I. The Complaint was not served.

“A defendant must serve an answer to a complaint within 30 days after the summons was issued, unless the court sets a different time.” Fed. R. Bankr. P. 7012(a)(1). “When 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, the clerk must enter the party's default.” Fed. R. Civ. P. 55(a). Fed. R. Civ. P. 55 applies in an adversary proceeding. Fed. R. Bankr. P. 7055. Where a plaintiff in an adversary proceeding fails to serve the defendant debtor properly, a request for an entry of default will be denied. In re Lents, No. AP 22-80041-EG, 2022 WL 17835678, at *2 (Bankr. D.S.C. Dec. 21, 2022).

In their Motion for Default, Plaintiffs assert Defendant was “duly served with the operative complaint and failed to respond by September 12, 2025.” See ECF No. 40, p. 3. Assuming that the term “operative complaint” refers to the Complaint filed on August 13, 2025, there is no indication on the docket that Plaintiffs ever attempted to serve the Complaint—only the First Amended Complaint (ECF No. 18) and the Second Amended Complaint (ECF No. 31). If Plaintiffs never attempted to serve the Complaint, then it follows that they cannot obtain an entry of default against Defendant for her failure to respond. See Lents, 2022 WL 17835678, at *2.

II. The First Amended Complaint was not properly served.

A summons and complaint “served by mail․ must be deposited in the mail within 7 days after the summons is issued. If a summons is not timely delivered or mailed, a new summons must be issued.” Fed. R. Bankr. P. 7004(e)(1). “A copy of a summons and complaint may be served by first-class mail, postage prepaid, within the United States on an individual except an infant or an incompetent person by mailing the copy to the individual's dwelling or usual place of abode or where the individual regularly conducts a business or profession․” Fed. R. Bankr. P. 7004(b)(1) (emphasis added). “[A] copy of a summons and complaint may be served by first-class mail, postage prepaid, within the United States on the debtor, after a petition has been filed by or served upon a debtor, and until the case is dismissed or closed—by mailing the copy to the address shown on the debtor's petition or the address the debtor specifies in a filed writing․” Fed. R. Bankr. P. 7004(b)(9).

Plaintiffs failed to properly serve the First Amended Complaint. Fed. R. Bankr. P. 7004(b)(1) requires parties who seek to serve process by mail to utilize first class mail. Plaintiffs attempted service of the First Amended Complaint by certified mail. See In re Frazier, 394 B.R. 399, 400 (Bankr. E.D.Va. 2008) (“Rule 7004(b) requires service ‘be made within the United States by first class mail postage prepaid.’ [․] [T]here is a difference between first class mail and certified mail: ‘[C]ertified mail requires an affirmative act by a defendant to obtain an unidentified package that is being held by the post office, and the plaintiff receives actual notice regarding whether the defendant actually received the package.’ [(quoting In re Eleva, Inc., No. 2:00CV178K, 2000 WL 33710904, at *4 (D. Utah Apr. 17, 2000))]. First class mail does not require any affirmative action. Thus, certified mail did not comply with Rule 7004(b).”).

Some courts have overlooked the first-class mail requirements of Fed. R. Bankr. P. 7004 when a defendant attempts service via certified mail. In re Ted A. Petras Furs, Inc., 172 B.R. 170, 177 (Bankr. E.D.N.Y. 1994). However, Plaintiffs’ exhibit indicates that Defendant only received service of the First Amended Complaint, which was mailed on August 20, 2025, on October 7, 2025; there is no evidence that Defendant had actual notice of the First Amended Complaint within 30 days of Plaintiffs’ posting of the First Amended Complaint. See Fed. R. Bankr. P. 7012(a)(1). The First Amended Complaint was not properly served on Defendant; therefore, Plaintiffs have not established that the Court has in personam jurisdiction over Defendant. Cent. Operating Co., 491 F.2d at 249. It follows that Plaintiffs are not entitled to an entry of default for Defendant's failure to file a timely answer, and the Motion for Default on the First Amended Complaint is denied without prejudice. Lents, 2022 WL 17835678, at *2.

III. The Second Amended Complaint was improperly filed.

“Fed. R. Civ. P. 15 applies in an adversary proceeding.” Fed. R. Bankr. P. 7015. Fed. R. Civ. P. 15(a) allows a party to “amend its pleading once as a matter of course,” without first seeking leave from the court. “[A] properly filed amended complaint supersedes the original one and becomes the operative complaint in the case, ․render[ing] the original complaint ‘of no effect.’ ” Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) (quoting Young v. City of Mt. Ranier, 238 F.3d 567, 573 (4th Cir. 2001)). Plaintiffs exercised their “matter of course” amendment with their First Amended Complaint, which was properly filed and is now the operative complaint in the case.

Once the party has amended as a matter of course, or the time limit prescribed under Rule 15(a) has expired, the party “may amend its pleading only with the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). “The Court should freely give leave when justice so requires.” Id. The Second Amended Complaint, filed without consent of the opposing party or leave of the court, is improperly filed. As with the First Amended Complaint, Defendant's failure to file a timely Answer to the Second Amended Complaint does not warrant an entry of default because the Second Amended Complaint itself was filed without leave of this Court or Defendant's consent though it was properly served.

IV. The Second Amended Complaint will be considered a request for leave to file another amended Complaint.

In the interest of freely granting leave to amend, and in recognition of the Plaintiffs’ pro se status, the Court will liberally construe the Second Amended Complaint as a Motion for Leave to File a Second Amended Complaint pursuant to Rule 15(a).¹⁸ See Burnett v. BJ's Wholesale Club, Inc., No. CV JKB-22-2840, 2023 WL 2414492, (D. Md. Mar. 8, 2023). Accordingly, the Court grants Defendant a period of 14 days from the entry of this Order in which to file any written opposition to Plaintiffs’ Motion. Should Defendant oppose the Motion, Plaintiffs will then have 14 days in which to file a reply. Only after the Motion is ripe for decision will the Court determine whether Plaintiffs should be granted leave to file the Second Amended Complaint. Should Defendant fail to timely respond, the Plaintiffs may obtain a reissued summons and serve Defendant with the Second Amended Complaint and summons in a manner compliant with Fed. R. Bankr. P. 7004.

AND IT IS SO ORDERED.

FOOTNOTES

1.   ECF No. 40.

2.   ECF No. 59.

3.   ECF No. 1.

4.   ECF No. 7.

5.   ECF No. 11.

6.   ECF No. 18.

7.   See C/A No. 25-02162, ECF No. 1.

8.   ECF No. 24.

9.   ECF No. 31.

10.   Plaintiffs also assert the Second Amended Complaint and re-issued summons were served on Richard Steadman via CM/ECF. Plaintiffs aver Mr. Steadman agreed to accept electronic service on Defendant's behalf on August 19, 2025, but have not received written confirmation from Mr. Steadman that his agreement to accept service applied retroactively to service of the Complaint on August 14, 2025. It is not clear from the pleadings whether Defendant consented to accept service through Mr. Steadman. See ECF No. 53.

11.   ECF No. 46.

12.   ECF No. 47.

13.   See Plaintiffs’ Exhibit 1, admitted into evidence at the hearing on November 13, 2025.

14.   ECF No. 53.

15.   ECF No. 55.

16.   ECF No. 59.

17.   ECF No. 63.

18.   If the Motion for Leave to File a Second Amended Complaint is granted, the Second Amended Complaint will become the operative complaint of this case and will render the Complaint and First Amended Complaint moot. Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017). It follows that, if the Complaint to which Defendant filed an Answer has been vacated, said Answer is also moot. See Wesley v. Charlotte-Mecklenburg Cnty. Police Dep't, No. 319CV00425FDWDCK, 2020 WL 5822216, at *4 (W.D.N.C. Sept. 30, 2020). Plaintiffs’ Motion for Leave to File the Second Amended Complaint thereby renders their Motion to Strike moot. The Motion to Strike is therefore dismissed without prejudice.

L. Jefferson Davis IV., US Bankruptcy Judge