Pomroy v. Indian Acres Club of Chspke. Bay ( 2022 )


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  • Catherine M. Pomroy, et al. v. Indian Acres Club of Chesapeake Bay, Inc., No. 386,
    Sept. Term 2021. Opinion by Arthur, J.
    CIVIL PROCEDURE – DEFAULT JUDGMENT
    Where the circuit court issues an order of default at the plaintiff’s request and denies a
    defendant’s motion to vacate the order of default, and the plaintiff subsequently files an
    amended complaint that asserts a new or additional claim for relief, the court may not
    enter a default judgment with respect to the amended complaint solely on account of the
    defendant’s failure to file a timely response to the original complaint.
    Under those circumstances, the court may enter a default judgment with respect to the
    amended complaint only after: the plaintiff has sought and obtained an order of default as
    to the amended complaint; the court has denied a motion to vacate the order of default as
    to the amended complaint, or the defendant has failed to file a timely motion to vacate
    that order of default; and the plaintiff has requested the entry of a default judgment as to
    the amended complaint.
    Circuit Court for Cecil County
    Case No. C-07-CV-20-000222
    REPORTED
    IN THE COURT OF SPECIAL APPEALS
    OF MARYLAND
    No. 386
    September Term, 2021
    CATHERINE M. POMROY, ET AL.
    v.
    INDIAN ACRES CLUB OF CHESAPEAKE
    BAY, INC.
    Fader, C.J.,
    Arthur,
    Battaglia, Lynne A.
    (Senior Judge, Specially Assigned),
    JJ.
    Opinion by Arthur, J.
    Filed: February 23, 2022
    Pursuant to Maryland Uniform Electronic Legal
    Materials Act
    (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
    2022-02-24
    08:33-05:00
    Suzanne C. Johnson, Clerk
    Under Maryland law, a number of events must occur before a court may enter a
    default judgment. First, the plaintiff must serve the defendant with the complaint and a
    summons. If the defendant fails to file a timely response, the plaintiff must request an
    “order of default.” Md. Rule 2-613(b). The clerk must send notice of the order of default
    to the defendant (Md. Rule 2-613(c)), who has 30 days from the entry of the order to
    move to vacate the order of default by explaining the reasons for the failure to plead and
    the legal and factual bases for any defenses. Md. Rule 2-613(d). The court must grant a
    motion to vacate an order of default if it “finds that there is a substantial and sufficient
    basis for an actual controversy as to the merits of the action and that it is equitable to
    excuse the failure to plead.” Md. Rule 2-613(e). If, however, the court is unpersuaded
    that “there is a substantial and sufficient basis for an actual controversy as to the merits of
    the action and that it is equitable to excuse the failure to plead,” it may deny the motion
    to vacate. If the court denies the motion to vacate, or if the defendant fails to move to
    vacate the order of default, the court may, upon request, enter a default judgment. Md.
    Rule 2-613(f).
    This case presents a novel question concerning the procedure for obtaining default
    judgments. Here, a court denied the defendants’ motion to vacate an order of default as
    to the original complaint, but the plaintiff had amended the complaint to add new
    substantive allegations while the motion to vacate was pending. In these circumstances,
    if the defendant fails to file a timely response to the amended complaint, may the court
    proceed to enter a default judgment on the amended complaint? Or may the court enter a
    default judgment on the amended complaint only after the defendants have failed to file a
    timely response to the amended complaint, the plaintiff has obtained a second order of
    default, and the court has declined to vacate the second order of default?
    For the reasons stated herein, we shall hold that, where the plaintiff files an
    amended complaint with new or additional substantive allegations, a court may not enter
    a default judgment on account of the defendants’ failure to file a timely response to the
    original complaint. Instead, the court, in those circumstances, may enter a default
    judgment only after the plaintiff has sought and obtained an order of default as to the
    amended complaint; the court has denied a motion to vacate the order of default as to the
    amended complaint, or the defendant has failed to file a timely motion to vacate that
    order of default; and the plaintiff has requested the entry of a default judgment as to the
    amended complaint.
    BACKGROUND
    Plaintiff Indian Acres Club of Chesapeake Bay, Inc. (“IAC”), operates a
    campground in Earleville, Maryland. Defendants Gerald and Catherine Pomroy allegedly
    own one or more lots within the campground. IAC is responsible for collecting certain
    dues and assessments associated with those lots.
    On June 18, 2020, IAC filed a complaint against the Pomroys in the Circuit Court
    for Cecil County. IAC alleged that the Pomroys had failed to pay $15,285.21 in charges
    that had come due between September 30, 2017, and January 31, 2020.
    On September 19, 2020, IAC served a writ of summons and copy of the complaint
    on Gerald Pomroy at the Pomroys’ last-known address in Pennsylvania. IAC claims to
    have served Catherine Pomroy by delivering the writ and summons to her husband.
    2
    The Pomroys did not file a timely answer.
    On November 17, 2020, IAC filed a request for an order of default in accordance
    with Maryland Rule 2-613(b).1 On January 6, 2021, the circuit court granted IAC’s
    request and issued an order of default. On that same day, the clerk sent a notice of
    default order to the Pomroys’ last-known address in accordance with Maryland Rule 2-
    613(c). Under Maryland Rule 2-613(d), the Pomroys had 30 days to move to vacate the
    order of default by stating the reasons for their failure to plead and the legal and factual
    bases for their defense.
    On February 2, 2021, before the expiration of the 30-day period in which the
    Pomroys could move to vacate the order of default, IAC filed an amended complaint. In
    the amended complaint, IAC claimed that, in addition to failing to pay the fees for the
    time period set forth in the original complaint, the Pomroys had also failed to pay
    additional fees that were assessed on October 1, 2020, after the filing of the original
    complaint. IAC amended the relief sought from $15,285.21 to $22,078.88 to reflect the
    additional fees that the Pomroys had allegedly failed to pay after the filing of the original
    complaint.
    Under Rule 1-321(c)(1), “a pleading asserting a new or additional claim for relief
    against the party shall be served in accordance with the rules for service of original
    1
    The motion for an order of default was technically premature. The Pomroys
    were served (or in Ms. Pomroy’s case, allegedly served) in Pennsylvania on September
    19, 2020. Consequently, they had 60 days from the date of service in which to respond to
    the complaint. Md. Rule 2-321(b)(1). Because IAC claims to have served the Pomroys
    on September 19, 2021, the 60 days did not run until November 18, 2021, the day after
    IAC requested the order of default.
    3
    process.” In the certificate of service for the amended complaint, IAC represented that it
    had sent the pleading by first-class mail, postage prepaid, to the Pomroys at their
    residence in Pennsylvania, but that it would also serve the amended complaint “in
    accordance with the rules for service of original process.”
    On February 5, 2021, the Pomroys filed a timely motion to set aside the order of
    default. They argued, among other things, that the fees had been improperly assessed.
    Ms. Pomroy also argued that she had not been properly served because she had separated
    from her husband in December 2019 and had moved to New Jersey.
    On March 1, 2021, the court denied the Pomroys’ motion. At the time when the
    court denied the motion, IAC had not yet personally served the Pomroys with the
    amended complaint.
    IAC personally served Mr. Pomroy with a copy of the amended complaint and the
    supporting documents on March 30, 2021. As before, IAC claims to have personally
    served the amended complaint on Ms. Pomroy by serving her husband.
    Mr. Pomroy had 15 days from service in which to respond to the amended
    complaint. Md. Rule 2-341(a). If service on Mr. Pomroy was effective as service on his
    wife, she too had 15 days in which to respond. Id.
    On April 16, 2021, two days after a response to the amended complaint was due,
    IAC filed a request for the entry of a default judgment. IAC claimed that the Pomroys
    had failed to file a responsive pleading to either the original complaint or the amended
    complaint. It asked the court to enter a judgment and to award damages in the amount set
    forth in the amended complaint ($22,078.88), plus reasonable attorneys’ fees.
    4
    On May 2, 2021, the Pomroys filed an “Answer” to “Plaintiff’s complaint.” In
    that pleading, the Pomroys generally denied IAC’s allegations and set forth various
    affirmative and negative defenses.
    On that same day, the Pomroys filed a timely response to IAC’s request for a
    default judgment. In the response, they argued, among other things, that IAC was not
    entitled to a default judgment because the circuit court had yet to issue an order of default
    on the amended complaint.
    On May 18, 2021, the circuit court granted IAC’s request for a default judgment.
    In so doing, the court entered a money judgment in favor of IAC and against the Pomroys
    in the amount of $22,078.88, the sum requested in the amended complaint. The court
    also awarded IAC attorneys’ fees and costs totaling $1,453.00. This timely appeal
    followed.
    QUESTIONS PRESENTED
    In this appeal, the Pomroys present two questions:
    1. Did the circuit court err in granting IAC’s request for a default judgment
    where there had been no preceding order of default on the amended
    complaint?
    2. Did the circuit court err in refusing to set aside the default order as to
    Catherine Pomroy on the grounds that Ms. Pomroy was not properly
    served?
    We shall hold that the circuit court erred in granting IAC’s request for a default
    judgment without first issuing an order of default as to the amended complaint. For that
    5
    reason, we shall reverse the court’s judgment and remand the case for further proceedings
    consistent with this opinion.
    In light of our disposition of the first issue, we need not reach the second.
    DISCUSSION
    Standard of Review
    This case presents a pure question of law: whether a trial court has the power to
    enter a default judgment on an amended complaint if the court has not issued an order of
    default as to the amended complaint. We are as capable as the trial court to determine the
    answer to that question. Consequently, we conduct a de novo review of the trial court’s
    decision. See, e.g., Nesbit v. Gov’t Emps. Ins. Co., 
    382 Md. 65
    , 72 (2004) (citing Walter
    v. Gunter, 
    367 Md. 386
    , 392 (2002)).2
    2
    IAC cites Scully v. Tauber, 
    138 Md. App. 423
     (2001), for the proposition that we
    should review the trial court’s decision for abuse of discretion. Scully is inapposite, as it
    concerns a trial court’s discretion to enter a default judgment as a sanction for a discovery
    violation, and not the entry of a default judgment under Rule 2-613. 
    Id. at 430-31
    .
    Although some decisions under Rule 2-613 do require the exercise of discretion – most
    notably, the decision about whether to vacate an order of default in response to a
    defendant’s explanation of the reasons for the failure to plead and the legal and factual
    basis for the defense to the claim (see, e.g., Holly Hall Publications, Inc. v. County
    Banking & Trust Co., 
    147 Md. App. 251
    , 263 (2002)) – this case does not involve any
    such decision; it involves whether the court had the power to enter a default judgment as
    to the amended complaint even though it had never issued an order of default as to that
    complaint. A court does not have the discretion to take an action that it is not empowered
    to take. See, e.g., Wilson-X v. Department of Human Resources, 
    403 Md. 667
    , 675
    (2008) (“trial judges do not have discretion to apply inappropriate legal standards, even
    when making decisions that are regarded as discretionary in nature”).
    6
    Analysis
    Maryland Rule 2-613(b) states that “[i]f the time for pleading has expired and a
    defendant has failed to plead as provided by these rules, the court, on written request of
    the plaintiff, shall enter an order of default.” “Promptly upon entry of an order of default,
    the clerk shall issue a notice informing the defendant that the order of default has been
    entered and that the defendant may move to vacate the order within 30 days after its
    entry.” Md. Rule 2-613(c). If the defendant moves to vacate the order, the motion “shall
    state the reasons for the failure to plead and the legal and factual basis for the defense to
    the claim.” Md. Rule 2-613(d). If, upon the filing of such a motion, “the court finds that
    there is a substantial and sufficient basis for an actual controversy as to the merits of the
    action and that it is equitable to excuse the failure to plead, the court shall vacate the
    order.” Md. Rule 2-613(e). If, on the other hand, the defendant filed no motion or the
    court denied the defendant’s motion, “the court, upon request, may enter a judgment by
    default that includes a determination as to the liability and all relief sought, if it is
    satisfied (1) that it has jurisdiction to enter the judgment, and (2) that the notice required
    by section (c) of this Rule was mailed.” Md. Rule 2-613(f).
    Here, the Pomroys do not dispute that they failed to file a responsive pleading to
    the original complaint (though Ms. Pomroy disputes whether she was properly served and
    thus obligated to respond). Nor do the Pomroys dispute that the circuit court properly
    issued an order of default, at least as to Mr. Pomroy, based on the failure to plead. They
    claim, instead, that the filing of the amended complaint effectively nullified the order of
    7
    default and prevented the court from issuing a default judgment without issuing a second
    order of default on the amended complaint.
    Rule 2-613 is silent as to the effect, if any, of an amended complaint on an order
    of default, when that order was issued before the filing of the amended complaint and
    was based on a party’s failure to file a responsive pleading to the original complaint.
    Consequently, we must turn to other authority for guidance.
    We begin with the principle that “[a]n amended complaint supersedes the initial
    complaint, rendering the amended complaint the operative pleading.” Asphalt &
    Concrete Services, Inc. v. Perry, 
    221 Md. App. 235
    , 267 (2015) (citing Gonzales v. Boas,
    
    162 Md. App. 344
    , 355 (2005)); see also Mark Downs, Inc. v. McCormick Props., Inc.,
    
    51 Md. App. 171
    , 181 n.3 (1982). “The amended complaint replaces the initial complaint
    in its entirety, and the initial complaint is considered withdrawn.” Asphalt & Concrete
    Services, Inc. v. Perry, 221 Md. App. at 267 (citing Shapiro v. Sherwood, 
    254 Md. 235
    ,
    238-39 (1969)); see also Abbott v. Forest Hill State Bank, 
    60 Md. App. 447
    , 453 (1984)
    (filing of amended declaration had the effect of withdrawing previous declaration); Mark
    Downs, Inc. v. McCormick Props., Inc., 51 Md. App. at 181 n.3 (“an amended complaint
    replaces the earlier complaint in its entirety,” and “[t]he earlier complaint is regarded as
    withdrawn or abandoned, and is no longer part of the complainant’s averments against
    [the] adversary”).
    A party must answer the original complaint within a specified period of time, see
    Md. Rule 2-321, and the failure to do so is a “failure to plead” under Rule 2-613. See
    Peay v. Barnett, 
    236 Md. App. 306
    , 317-18 (2018). The rule pertaining to amended
    8
    complaints is, however, a bit different. If an amended complaint “introduces new facts or
    varies the case in a material respect,” a defendant “who wishes to contest new facts or
    allegations” must file a timely answer. Md. Rule 2-341(a). “If no new or additional
    answer is filed within the time allowed, the answer,” if any, “previously filed shall be
    treated as the answer to the amendment.” 
    Id.
    Maryland Rule 1-321, which governs the service of pleadings other than an
    original pleading, echoes the distinction between an amendment that varies the case and
    one that does not. In general, under Rule 1-321, the plaintiff need not serve an amended
    complaint on a party who is in default for failure to appear. Md. Rule 1-321(c). If,
    however, the amended complaint asserts “a new or additional claim for relief against the
    party,” then the complaint “shall be served in accordance with the rules for service of
    original process[.]” Md. Rule 1-321(c)(1).
    The distinction between an amendment that asserts “a new or additional claim for
    relief” and one that does not undoubtedly has its roots in basic principles of due process.
    Due process dictates that a court cannot enter a judgment, by default or otherwise, unless
    the defendant has notice of the allegations and a meaningful opportunity to contest them.
    See, e.g., In re Easton, 
    214 Md. 176
    , 188 (1957) (citing Simon v. Craft, 
    182 U.S. 427
    ,
    436 (1901)); Superior Court v. Ricketts, 
    153 Md. App. 281
    , 336-37 (2003). By requiring
    personal service of an amended complaint that asserts “a new or additional claim for
    relief against the party,” even when the party is in default, Rule 1-321 ensures that the
    party has notice of the new or additional claim and an opportunity to contest it.
    9
    “‘[A] default judgment is not meant to be a punitive measure that penalizes a party
    for breaching a procedural regulation.’” Holly Hall Publications, Inc. v. County Banking
    and Trust Co., 
    147 Md. App. 251
    , 262 (2002) (quoting Royal Ins. Co. of America v. Miles
    & Stockbridge, P.C., 
    133 F. Supp. 2d 747
    , 768 (D. Md. 2001)). Rather, “a default
    judgment is considered more akin to an admission of liability than to a punitive
    sanction.” Curry v. Hillcrest Clinic, Inc., 
    337 Md. 412
    , 434 (1995). A judgment of
    default is permitted only if a motion to vacate an order of default is not filed or, if filed, is
    denied. Admiral Mortg., Inc. v. Cooper, 
    357 Md. 533
    , 539 (2000); see Md. Rule 2-
    613(f). It is “clear error” to enter a judgment of default unless the court has denied a
    motion to vacate an order of default or the defendant has failed to move to vacate the
    order of default in the first place. See Admiral Mortg., Inc. v. Cooper, 
    357 Md. at 539
    .
    From that summary, we infer the following principles. First, when a party files an
    amended complaint, the original complaint is considered withdrawn, and the amended
    complaint becomes the operative pleading. Second, when the amended complaint
    introduces new facts, asserts new or additional claims for relief, or materially varies the
    case, the amended complaint is treated like an original complaint, particularly when the
    adverse party is in default. Finally, a court cannot issue a default judgment pursuant to
    Rule 2-613(f) without first issuing an order of default and giving the defaulting party an
    opportunity to vacate that order. The failure to abide by the procedures set forth in Rule
    2-613 is reversible error.
    Applying these principles, we hold that the circuit court erred in granting IAC’s
    request for a default judgment without issuing an order of default after the filing of IAC’s
    10
    amended complaint. When IAC filed the amended complaint, it became the operative
    complaint, and the original complaint was withdrawn. Consequently, the existing order
    of default became a legal nullity, as the claims in the original complaint had been
    abandoned in favor of the amended complaint. An order of default loses its legal
    foundation when the plaintiff withdraws the complaint to which the defendant failed to
    file a timely answer.
    Moreover, because the amended complaint asserted a new and additional claim for
    relief (namely, that the Pomroys had breached their obligation to pay an additional charge
    that came due only after the original complaint), IAC was required to serve the Pomroys
    in accordance with the rules for service of original process (Md. Rule 1-321(c)(1)), which
    it did (at least as to Mr. Pomroy) on March 30, 2021. Once they were served, the
    Pomroys were required to file a timely responsive pleading in the event that they
    contested the new allegations. They failed to do so, and that failure was (at least for Mr.
    Pomroy) a “failure to plead,” which triggered the strictures of Rule 2-613. At that point,
    if IAC intended to pursue its remedies under Rule 2-613, it was required to request a new
    order of default and to allow the Pomroys an opportunity to move to vacate the new order
    of default. See Armiger Volunteer Fire Co., Inc. v. Woomer, 
    123 Md. App. 580
    , 590
    (1998) (noting that one of the purposes of Rule 2-613 “is to afford a defendant in default
    a second opportunity to respond and, if armed with sufficient facts to excuse the initial
    failure to answer and to defend the merits of the claim against it, an opportunity to vacate
    the order of default”). Instead, however, IAC skipped several steps by asking the court to
    proceed directly to the entry of a default judgment on the amended complaint. The court
    11
    erred by absolving IAC of its obligation to request an order of default as to the amended
    complaint and by entering a default judgment on the claims in the amended complaint,
    including the claim that the Pomroys had breached an obligation to pay a charge that
    came due only after IAC filed the original complaint.
    IAC argues that the circuit court properly entered the judgment of default based on
    the original order of default. IAC claims that the amended complaint had no effect on the
    order of default because, it says, the amended complaint “did not contain any new or
    additional claims for relief,” but simply “updated [the] amount owed by [the Pomroys].”
    IAC also claims that, “while the verified amended complaint became the controlling
    pleading for purposes of money damages sought by [IAC] in this action, the mere filing
    of an amended pleading does not operate to undo or render meaningless the circuit
    court’s prior orders.” IAC asserts that the Pomroys “attempted to use [the] filing of a
    Verified Amended Complaint – which did not substantively alter a single allegation or
    claim, other than to update the amounts owed by [the Pomroys] – as an opportunity to
    ‘resurrect’ their ability to participate in this case[.]”
    We are unpersuaded. To begin with, it is untrue that the amended complaint
    contains no new or additional claims for relief. Nor is it true that the amended complaint
    “did not substantively alter a single allegation or claim.” In the original complaint, IAC
    alleged that the Pomroys had failed to pay $15,285.21 in charges that came due between
    September 30, 2017, and January 31, 2020. In the amended complaint, IAC claimed that
    the Pomroys had failed to pay an additional $6,793.67 in charges that came due on
    October 1, 2021, after the filing of the original complaint. Thus, in filing the amended
    12
    complaint, IAC was not simply “updat[ing]” the amount of relief in relation to the claims
    raised in the original complaint. Instead, IAC was alleging that, in addition to breaching
    their obligation to pay the fees and assessments that came due between September 30,
    2017, and January 31, 2020 (as set forth in the original complaint), the Pomroys had
    committed a new and additional breach by failing to pay the charges that came due on
    October 1, 2020. The allegation of a new and additional breach was, without question, an
    additional claim for relief, which the Pomroys had a right to contest. IAC itself seems to
    have recognized as much when it undertook to personally serve the amended complaint
    on the Pomroys in accordance with Rule 1-321(c)(1), which requires personal service of
    an amended complaint that asserts “a new or additional claim for relief.”
    We likewise disagree with IAC’s claim that the amended complaint had no effect
    on the existing order of default. As previously discussed, an original complaint is
    considered withdrawn when an amended complaint is filed. It follows that an order of
    default based on the original complaint would also be withdrawn, particularly where, as
    here, the amended complaint raises a new claim for relief.
    IAC argues that because the Pomroys challenged the order of default as to the
    original complaint, they cannot take “the inconsistent position that the Order of Default
    was voided by the Verified Amended Complaint.” That argument, too, has no merit.
    The Pomroys filed their timely motion to vacate the order of default on February 5, 2021,
    just three days after IAC had filed its amended complaint and mailed it to their last-
    known address. Thus, it is unclear whether either or both of the Pomroys even knew of
    the amended complaint when they moved to vacate the order of default as to the original
    13
    complaint. Moreover, IAC does not claim to have personally served the Pomroys with a
    copy of the amended complaint until March 30, 2001, almost a month after the circuit
    court denied their motion to vacate the order of default on March 1, 2001. The Pomroys
    cannot be expected to make an argument about the effect of the amended complaint long
    before they were served (or, in Ms. Pomroy’s case, allegedly served) with it.
    IAC cites Gonzales v. Boas, 
    162 Md. App. 344
     (2005), and Pharmaceia Eni
    Diagnostics, Inc. v. Washington Suburban Sanitary Comm’n, 
    85 Md. App. 555
     (1991),
    for the proposition that “in other contexts” an amended pleading “should not operate to
    resurrect a party’s previously-extinguished rights.” (Emphasis in original.) Those cases
    do not alter our analysis.
    In Pharmaceia Eni Diagnostics, Inc. v. Washington Suburban Sanitary Comm’n,
    
    85 Md. App. 555
     (1991), this Court considered a plaintiff’s right to voluntarily dismiss a
    defendant without leave of court before the defendant has filed an answer. See Md. Rule
    2-506(a)(1). In Pharmaceia the plaintiff claimed that it could voluntarily dismiss a
    defendant without leave of court after it filed its amended complaint but before any
    parties had responded. 
    Id. at 563
    . In other words, the plaintiff claimed that “an amended
    complaint can resurrect a plaintiff’s right unilaterally to dismiss an action until the
    defendant responds to the amended complaint.” 
    Id.
     This Court disagreed on the ground
    that the plaintiff’s position “would defeat the purpose of the limitation on unilateral
    dismissals in Rule 2-506(a) in that any time a plaintiff wanted to dismiss an action after
    the defendant had filed an answer, he could simply file an amended complaint and a
    Notice of Dismissal.” 
    Id.
    14
    In Gonzales v. Boas, 
    162 Md. App. 344
     (2005), this Court considered the deadline
    for responding to requests for admissions under Rule 2-424(b), which states that “[e]ach
    matter of which an admission is requested shall be deemed admitted unless, within 30
    days after service of the request or within 15 days after the date on which that party’s
    initial pleading or motion is required, whichever is later, the party to whom the request is
    directed serves a response signed by the party or the party’s attorney.” In Gonzales, 162
    Md. App. at 355, the trial court had dismissed the plaintiff’s complaint, but had given her
    leave to amend. Thus, she argued that she was not obligated to respond to the
    defendant’s requests for admissions until 15 days after she had filed her amended
    complaint. Id. This Court disagreed, reasoning that the filing of an amended complaint
    “does not start the running of time anew for purposes of a response to a request for
    admission.” Id. In support of the decision, we cited Pharmaceia for the proposition that
    “allowing the filing of an amended complaint to resurrect certain rights which were
    already lost would defeat the purpose of the limitations established in the rules.” Id.
    Neither Gonzales nor Pharmaceia has any bearing on the analysis in this case.
    Here, we are not concerned with whether a plaintiff can use an amended complaint as a
    ploy to resurrect a right that has been extinguished. We are concerned with whether a
    plaintiff can obtain a default judgment on an amended complaint before it has moved for
    an order of default on the amended complaint and before the court has declined to vacate
    that order of default. In the circumstances of this case, where the amended complaint
    asserts a new or additional claim for relief, we hold that the court may not enter a default
    15
    judgment on the amended complaint before the plaintiff has moved for an order of default
    on the amended complaint and the court has declined to vacate that order of default.
    In sum, the circuit court erred in entering the default judgment without first issuing
    an order of default on the amended complaint. We therefore reverse the court’s judgment
    and remand for further proceedings. If, on remand, IAC wishes to pursue a default
    judgment on the amended complaint, it must request an order of default pursuant to Rule
    2-613(b). Upon the filing of such a request, the court should move forward in accordance
    with the procedures set forth in Rule 2-613.
    JUDGMENT OF THE CIRCUIT COURT
    FOR CECIL COUNTY REVERSED; CASE
    REMANDED TO THAT COURT FOR
    FURTHER PROCEEDINGS CONSISTENT
    WITH THIS OPINION; COSTS TO BE
    PAID BY APPELLEE.
    16