Lead Opinion
for the Court:
¶ 1. The motion for rehearing is denied. The original opinions are withdrawn and these opinions are substituted therefor. The instant interlocutory appeal arises from a default judgment entered against BB Buggies, Inc. and Textron, Inc. (the “Textron Parties”). The Textron Parties claim that the default judgment is void and should be set aside because they did not receive proper service of the amended complaint, they were not given notice of the default judgment, and the plaintiffs failed to state a claim against them. Additionally, the Textron Parties assert that the three-pronged balancing test for relief from default judgments requires that it be set aside because they have a colorable defense and the plaintiffs will not be prejudiced. We hold that the default judgment is not void, but it should be set aside under the three-pronged test.
Facts and Procedural History
¶ 2. In June 2011, fourteen-year-old Jean-ah Leon was seriously injured while operating a Bad Boy Buggy, an off-road vehicle used for hunting and outdoor recreation. One year later, in June 2012, Jean-alTs parents, Vincent and Mandi Leon, filed a products liability and personal injury lawsuit in Louisiana against the owner of the Bad Boy Buggy, who was a Louisiana resident. They also named the owner’s insurer, the Textron Parties, and several other entities and individuals. Within a few days, the Leons dismissed all parties except the vehicle owner and his insurer from the Louisiana case.
¶ 3. On June 11, 2012, the Leons filed suit in Adams County, Mississippi, against the Textron Parties and the others previously named in the Louisiana suit,
¶4. The Textron Parties’ answer was due August 15, 2012, thirty days after they were served with the original complaint. They did not file an answer to the original complaint or the amended complaint. On August 23, 2012, the Leons sought a default judgment against the Textron Parties based on the amended complaint. An entry of default and default judgment were entered the same day. The judgment provided that damages would be determined at a subsequent hearing. Four days later, on August 27, the Textron Parties’ insurance carrier learned of the default judgment and engaged counsel for the Textron Parties; the Textron Parties’ attorney contacted the Leons’ attorney that day, On August 31, 2012, the Textron Parties filed
Analysis
¶ 5. The Textron Parties claim that the trial court erred by refusing to set aside the default judgment against them. They claim that the default judgment is void and should be set aside because: the amended complaint was not properly served; the Textron Parties were not given notice of the entry of default; and the Leons failed to state a claim against the Textron Parties in the amended complaint. Additionally, the Textron Parties assert that the three-pronged balancing test under Mississippi Rules of Civil Procedure 55(c) and 60(b) requires that the default judgment be set aside because the Textron Parties have a colorable defense to the lawsuit, and the Leons failed to show they would be prejudiced by allowing the Textron Parties to file an answer.
¶ 6. Sufficiency of service of process is a jurisdictional issue, which is reviewed de novo. Fletcher v. Limeco Corp.,
I. Whether the default judgment against the Textron Parties is void as a matter of law due to improper service of the amended complaint.
¶7. The Textron Parties assert that the Leons failed to comply with the service requirements of Rule 4 of the Mississippi Rules of Civil Procedure because they did not include summonses with the amended complaint and did not address the certified mailing to any officer or agent of the Textron Parties. The Leons contend that new summonses were not required because the service provisions of Rule 5(a) and (b)(1) control.
¶ 8. When a complaint is filed, the clerk issues a summons, and .both the complaint and summons must be served on the defendant in accordance with Rule 4. Miss. R. Civ. P. 4(a)-(d). Rule 5 pertains to subsequent pleadings .and provides, in pertinent part:
(a) Service: When Required. Except as otherwise provided in these rules ... every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants ... shall be served upon each of the parties. 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 mannerprovided in Rule 4 for service of summons ....
(b)(1) Service: How Made. ... Service upon the attorney or upon a party shall be made by delivering a copy to him; or by transmitting it to him by electronic means; or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court, or by transmitting it to the clerk by electronic means. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no on one in charge [sic], leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . Service by mail is complete upon mailing.
Miss. R. Civ. P. 5(a), (b)(1). An amended complaint is a pleading. Miss. R. Civ. P. 7(a); Miss. R. Civ. P. 15(a). Because it is a pleading “subsequent to the original complaint,” its service falls squarely within the scope of Rule 5 with one exception — if an amended complaint adds new or additional claims and the new claims are against a party who is in default, then service must be made under Rule 4. In the instant case, the Textron Parties were not in default when the Leons served their amended complaint fifteen days after the Textron Parties were properly served with the summons and original complaint, so the one exception to Rule 5(a) did not apply.
¶ 9. The circuit court could exercise personal jurisdiction over the Tex-tron Parties because the first complaint and summons had been properly served. “The existence of personal jurisdiction depends upon reasonable notice to the defendant.” Mansour v. Charmax Indus., Inc.,
¶ 10. Whether Rule 4 or Rule 5 applies to service of an amended complaint is an issue of first impression in Mississippi. Because our rules are generally modeled after the Federal Rules of Civil Procedure, we often consider federal authority when construing similar rules. Gray v. Gray,
¶ 11. In Fluor Engineers, one defendant filed a cross-claim against a second defendant and attempted to effect service under Federal Rule 5 by hand delivering a copy of the cross-claim to the second defendant’s attorney. Fluor Engineers,
¶ 12. In Anunciation, the plaintiff filed an amended complaint against the defendant after the defendant failed to respond to the original complaint. Anunciation,
¶ 13. Mississippi’s Rule 5 clearly requires Rule 4 service of a summons with a subsequent pleading only if (1) the opposing party is in default and (2) the subsequent pleading contains new claims against the party in default. The Leons’
II. Whether the Textron Parties received insufficient notice of the entry of default against them.
¶ 14. Rule 55(b) of the Mississippi Rules of Civil Procedure provides, “[i]f the party against whom judgment by default is sought has appeared in the action, he (or if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing of such application.” Miss. R. Civ. P. 55(b). The Textron Parties claim that the default judgment should be set aside because they were not provided notice prior to the default judgment being entered. The Tex-tron Parties admit that they had not formally appeared in the case when the amended complaint was filed. However, they claim that they had appeared for the purpose of Rule 55; thus, they were entitled to notice.
¶ 15. On August 6, 2012, Andy Braun, a Louisiana attorney who was representing Bad Boy Buggies in the Louisiana case, called the Leons’ attorney, Jim Warren. Braun followed up with an email to Warren, which read:
Thanks for calling me back this morning. As discussed, we were asked to represent one or more of the “Bad Boy Buggies, Inc. Defendants” in the lawsuit that was originally filed against them and others in Shreveport, Louisiana. We understand from Ken Mascagni that the Shreveport suit has been amended to take out the “Bad Boy Buggies, Inc. Defendants” and that you have filed a separate suit against them in Mississippi. Can you please forward to us a copy of the lawsuit you filed (and any other information you can provide us with at this time) so that we can get instructions regarding how to proceed? That would be most helpful.
The Textron Parties argue that the email shows an intent to defend the Mississippi lawsuit, and that it satisfies the relaxed appearance requirement of Rule 55. Naturally, the Leons’ position is that the email was not a sufficient appearance and that notice was not required. The trial court found in favor of the Leons on the issue, concluding that the Textron Parties had not appeared for Rule 55(b) purposes.
¶ 16. For Rule 55(b) purposes, the appearance requirements are “relaxed considerably,” and a formal filing in court or a court appearance is not required for one to be entitled to notice under Rule 55(b). Rogillio,
“[Traditionally, for an action to constitute an appearance, one had to file documents in or actually physically appear before a court.” Holmes v. Holmes,628 So.2d 1361 , 1363 (Miss.1993) (citations omitted). However, “those requirements have been relaxed considerably for Rule 55 purposes.” Holmes,628 So.2d at 1363 (citations omitted). “Once a party has made an indicia of defense or denial of the allegations of the complaint such party is entitled to at least three days[’] written notice of the application for default judgment.” Wheat v. Eakin,491 So.2d 523 , 525 (Miss.1986). This Court has noted that “informal contacts between parties- may constitute an appearance.” Holmes, 628 So.2d at 1364 (citing various cases in which written documents that were exchanged between parties or filed with the court, or conversations initiated ' by defendants’ counsel, indicated an intent to defend the action arid thus constituted an appearance).
Rogillio,
¶ 17. In Rogillio, a claims specialist for American States Insurance Company spoke with Rogillio’s counsel by phone. Rogillio,
Based on this Court’s prior caselaw, we find that American States did not enter an appearance in the action when its claims specialist spoke over the telephone with Rogillio’s attorney. Although an appearance need not be a formal entry of appearance or a physical presence in court, in the illustrative cases summarized above, the defendants either 1) served or sent a document to the plaintiff indicating in writing the defendant’s intent to defend, 2) filed a document with the court indicating in writing the defendant’s intent to defend, or 3) had counsel communicate to opposing counsel the defendant’s intent to defend. Here, there is no evidence of American States' informing Rogillio or the court in writing or through counsel of its intent to defend the suit. Al- ’ though it argues that its claims specialist, Anderson, advised Rogillio of its intent to defend on March 15, 2007, there is no written or audio record of this phone conversation and there is no follow up confirmation letter to indicate what transpired during that conversation. American States has not shown that it made an appearance in this action such that Rogillio was required to provide at least three days’ notice to American States of its application for default judgment. Accordingly, this Court concludes that the default judgment is not void for failure to comply with Rule 55(b).
Rogillio,
¶ 18. In Kumar v. Loper, in addition to one letter sent before they filed the case, defehdants’ attorney had contacted plaintiffs’ attorney by telephone to say that he no longer represented the defendants and that someone else might take over the case. Kumar,
¶ 19. The one phone call and one email from the Textron Parties’ Louisiana attorney, who did not represent them in the Mississippi case, did not indicate a clear intent to defend and did not constitute an appearance for Rule 55(b) purposes. In the precedent cases in which the courts found that the parties had appeared for Rule 55(b) purposes, the attorneys had extended conversations, exchanged multiple letters, discussed the need for more time to answer, or the parties actually filed something with the court. Under the facts of the instant case, we hold that the Tex-tron Parties had not appeared for Rule 55(b) purposes and were not entitled to notice.
III. Whether the Leons failed to state a claim against the Tex-tron Parties in the amended complaint.
¶ 20. The Textron Parties assert that the default judgment is void and should be set aside because the Leons failed to state a claim against them. They maintain that, because they did not actually manufacture the vehicle at issue, the only claim the Leons can have against them is based on product line successor theory.
¶ 21. Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Miss. R. Civ. P. 8(a). The purpose of Rule 8 is to put parties on notice of the claims against them. We have said that Rule 8 does not require any magic words, “it is only necessary that the pleadings provide sufficient notice to the defendant of the claims and grounds upon which relief which is sought.” Estate of Stevens v. Wetzel,
IV. Whether the three-pronged test for setting aside a default judgment requires the default judgment to be set aside.
¶ 22. Although we hold that the default judgment is not void for the procedural reasons argued by the Textron Parties, requests for relief from a default judgment also should be analyzed under Rules 55(c) and 60(b). The Court has been clear that “default judgments are not favored.” McCain,
¶ 23. According to Rule 55(c), a default judgment may be set aside “[f|or good cause shown” and in accordance with Rule 60(b). Miss. R. Civ. P. 55(c). The Court has articulated a three-pronged balancing test to apply in deciding whether to set aside a judgment pursuant to Rule 60(b): the trial court must consider “(1) the nature and legitimacy of the defendant’s reasons for his default, i.e. whether the defendant has good cause for default, (2) whether the defendant in fact has a color-able defense to the merits of the claim, •and (3) the nature and extent of prejudice which may be suffered by the plaintiff if the default judgment is set aside.” Rogil-lio,
A. Good cause for default
¶ 24. The Textron Parties claim that their failure to file an answer was an unintentional mistake, but they concede that they did not have good cause for
B. Colorable defense
¶ 25. We have held unequivocally that “the second factor, the presence of a color-able defense, outweighs the other two, and we have encouraged trial courts to vacate a default judgment where ‘the defendant has shown that he has a meritorious defense.’ ” Allstate Ins. Co. v. Green,
¶26. The trial court found that the Textron Parties had colorable defenses to the claims against them, and we agree. Textron Parties’ defenses include that they did not design, manufacture, or distribute the vehicle in question, which was manufactured in 2009 by Bad Boy Enterprises. BB Buggies purchased certain assets from Bad Boy Enterprises in 2010, and they signed an asset purchase agreement, which provided that Bad Boy Enterprises retained liability for claims arising out of products it manufactured. As to the Leons’ successor liability claim, the Tex-tron Parties assert that the Leons cannot prove the elements required to subject them to liability for Bad Boy Enterprises’s products, specifically, they cannot prove that Bad Boy Enterprises is a mere corporate shell.
¶ 27. The Leons argued in their brief and on rehearing that this Court should not consider the Textron Parties’ argument about Jeah-ah’s alleged misuse of the vehicle, because the owner’s manual is not in the record. The Leons are correct that the Textron Parties did not put the owner’s manual into evidence at the hearing. However, the Textron Parties’ attorney read directly from the manual, which provides that “[t]he buggy should never be operated by a persons eighteen years of age or under.” That statement was read into the record without objection from the Leons. During the argument about colorable defenses, the Textron Parties again referred to the manual in asserting the possible defense of misuse of the vehicle. In their motion for rehearing, the
¶ 28. This Court has written that, to satisfy the colorable defense prong, “a party must show facts, not conclusions, and must do so by affidavit or other sworn form of evidence.’ ” Capital One Servs., Inc. v. Rawls,
¶ 29. To the extent that Capital One and Rush stand for the proposition that sworn affidavits are required to show a colorable defense on a motion to set aside default judgment, we overrule those cases. An officer of the Court reading directly from the owner’s manual at the hearing to support a potentially valid defense, is a far cry from a “wish and prayer” or creating a defense “out of thin air.” While the evidence would not satisfy the Rule 56 requirements of admissibility in the summary judgment context, it is sufficient for a motion to set aside default judgment. A vast degree of evidence falls oh the spectrum between a “wish and a prayer” and “sworn affidavits,” and while more than a “wish and prayer” is required, sworn affidavits are not.
¶ 30. The colorable defense factor weighs in favor of the Textron Parties. We have held that the colorable defense factor alone “should often be sufficient to justify vacation of a judgment entered by default.” Guar. Nat’l Ins. Co.,
C. Prejudice to the Leons
¶31. The third prong of the balancing test requires consideration of the extent of prejudice, if any, that the Leons would suffer if the default judgment was set aside. The trial court found that a delay in the damages trial would be prejudicial to the Leons. The trial court’s order included the following rationale for that conclusion:
The [c]ourt finds that the delay in a damages trial that would result if the [d]efault [j]udgment were set aside would be prejudicial to Jean-ah Leon, who needs immediate medical treatment, therapy[,] and rehab for her serious injuries. Every day that passes prior to trial creates additional prejudice. The [c]ourt notes other prejudice to Ms. Leon, including the potential for loss of available insurance should this matter be delayed and the fact that but for the [d]efault [j]udgment she would be required to litigate against the other defendants. As things stand, with the [d]efault [j]udgment, she can prove herdamages case and conclude the matter without going through additional litigation.
The Textron Plaintiffs contend that the need to litigate is not grounds for finding prejudice. We agree. We have held repeatedly that the fact that the plaintiffs would be required to litigate their case and prove their claims is not “cognizable prejudice.” Kumar, 80 So.Sd at 816 (¶ 29) (citing Bailey,
¶ 32. We have recognized that the delay in resolving a claim can constitute prejudice to an injured plaintiff in cases involving sexual harassment. Kumar,
¶ 33. The Leons did not file suit until a year after the accident. Then, they voluntarily dismissed most of the defendants in the Louisiana case and refiled in Mississippi. Thus, any initial delays were caused by the Leons. The Leons filed suit in Mississippi on June 11, 2012, and they served the Textron Parties a month later on July 16. The default judgment was entered on Thursday, August 23, 2012. By Monday, August 27, just four days after the default judgment was entered, the Textron Parties had learned of the default judgment and retained an attorney, who contacted the Leons’ attorney that day. The Textron Parties’ motion to set aside the default judgment was filed August 31, two weeks after their answer was due and only eight days after the default judgment was entered. The trial court held a hearing on October 23, 2012, and denied the motion to set aside the default judgment from the bench. The trial court’s order and opinion was entered November 1, 2012, three and a half months from the date the Textron Parties were served with the original complaint.
¶ 34. Less than four months from commencement of the action to resolution on the motion to set aside the default judgment — with only eight days between entry of the default judgment and the motion to set aside — is a very short amount of time compared to the time lapse in cases where we have found that the delay caused by
¶ 35. Although the Textron Parties missed the deadline for filing an answer, they acted promptly after discovering the default judgment. Discovery has been ongoing, which precludes claims for loss of evidence and will save the parties time if the case is remanded. The trial court’s primary reason for finding prejudice was that the Leons would be required to go to trial and prove their case. That alone is not a sufficient reason for a finding of prejudice. Taking all of this into consideration, we cannot find that the delay was prejudicial to the Leons.
¶ 36. With the outcome in the instant case, we do not, in any way, mean to undermine the principle that the duty to answer timely is of utmost importance. We emphasize that “the duty to answer must be taken seriously.” Guar. Nat’l Ins. Co.,
¶ 37. Two of the three factors — color-able defense and prejudice — weigh in favor of the Textron Parties and, thus, in favor of setting aside the default judgment. Therefore, we hold that the trial court abused its discretion in failing to set aside the default judgment. The default judgment against the Textron Parties is set aside, and the case is remanded for proceedings consistent with the instant opinion.
Conclusion
¶ 38. We hold that the default judgment is not void for the reasons argued by the Textron Parties — the Leons properly served their amended complaint under Rule 5; the Textron Parties had not appeared for Rule 55(b) purposes, so they were not entitled to notice of the default; and the amended complaint was sufficient under Rule 8. However, the default judgment is set aside because the Textron Parties have a colorable defense and the Leons will not suffer prejudice.
¶ 39. REVERSED AND REMANDED.
Notes
. The other parties are not involved in the interlocutory appeal.'
. We point out that the Fifth Circuit found the matter harmless, however, because the first defendant had later re-served the second defendant with a summons and a copy of the cross claim.
. Under the product line successor theory, a successor corporation that manufactures the same product as its predecessor corporation can be "liable for injuries caused by defects in that product and inherit the liabilities associated with the product even if sold and manufactured by the predecessor corporation.” Huff v. Shopsmith, Inc.,
. See supra footnote 3.
Concurrence Opinion
concurring in result ■ only:
¶ 40. I agree with the majority that the default judgment in this instance should be set aside. In my opinion, however, the judgment entered against the. Textron Parties was void based on the Leons’ failure to serve their amended complaint, which added new claims for gross negligence and punitive damages against the Textron Parties, under the service requirements prescribed by Rule 4 of the Mississippi Rules of Civil Procedure. Therefore, I concur in result only.
¶ 41. A party cannot avail itself of the more relaxed service standards prescribed by Rule 5 of the Mississippi Rules of Civil Procedure, with regard to amended complaints asserting new claims, unless the defendant has made an appearance in the case. In Mississippi, an “appearance” for purposes of the rules is synonymous with a “general appearance.” See, e.g., McCoy v. Watson,
¶ 42. As noted by the majority, both Rule 4 and Rule 5 of the Mississippi Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure. While certainly not controlling authority for our procedural rules, federal cases and treatises speaking to and interpreting federal rules that are counterparts to our own provide persuasive authority. The leading treatise- on federal practice and procedure, Wright & Miller, speaks to Federal Rule 5 as follows: “The service of paper provisions of [Federal] Rule 5 apply only to parties who have appeared. Thus it is clear that amended or supplemental pleadings must be served on parties who have not yet appeared in the action in conformity with [Federal] Rule 4.” See 4A Charles Alan Wright & Authur R. Miller, Federal Practice and Procedure § 1146 (3d ed. 2002).
¶ 43. As a general rule, an amended complaint supersedes the original complaint. See, e.g., King v. Dogan,
¶44. As the Textron Parties had not made an appearance in the case, the circuit court had no jurisdiction to enter a judgment against them on the amended complaint asserting new claims against the Textron Parties. • Accordingly, I would hold that judgment is void.
WALLER, C.J., AND RANDOLPH, P.J., JOIN THIS OPINION.