Federal Wrongful Death Suit Filings – a Lawyer’s Primer (FRCP 3)

Federal Wrongful Death Suit Filings – a Lawyer’s Primer (FRCP 3)

The timeliness of §1983 civil rights wrongful death and other federal suits depends on when the complaint physically was delivered to a Court officer, not when it is stamped “filed” and/or its fees are paid. Avery T. “Sandy” Waterman, Jr., Esq. recently has survived the point in Webb v. Stevens, No. 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008), a civil rights wrongful death case under 42 U.S.C. §1983. In Webb, the pro se plaintiff timely delivered the complaint, but did not pay the filing fee; and then was denied his petition to proceed in forma puaperis (such that his complaint was not stamped “filed” until he belatedly paid the filing fee).

The “Federal Rules of Civil Procedure govern the commencement of this suit for purposes of tolling the state statute of limitations.” Lewis v. Richmond City Police Dept., 947 F.2d 733, 735 (4th Cir. 1991)(holding pro se litigant timely “filed” by depositing his§1983 complaint in prison mailbox). “As long as the complaint is deemed filed within the limitations period, the action is timely.” Id. (citing Fed. R. Civ. P. 3) (emphasis added). “The phrase ‘filing a complaint’ as used in Rule 3, means nothing more than delivery of the complaint to an officer of the court authorized to receive it – under Rule 5, the clerk of court or a judge thereof.” See, Robinson v. Waterman S.S. Co., 7 F.R.D. 51, 54 (D.N.J. 1947) (amended complaint delivered to judge, but not clerk, timely). See also, e.g., Robinson v. Yellow Freight Sys., 892 F.2d 74 (4th Cir. 1989)(pro se complaint); Ladd Furniture, Inc. v. Ernst & Young, 1998 U.S. Dist. LEXIS 173 45, *20 (M.D.N.C. 1998)(third-party complaint attached to motion for leave to amend filed timely despite grant after statute of limitations ran).

Wells v. Appel, 103 F.Supp.2d 893 (W.D. Va. 2000) is on point. In Wells, plaintiff timely delivered the clerk a complaint and an application to proceed in forma pauperis on November 29, 1999; but the court denied her application, and she did not pay her filing fee and correspondingly her complaint was not marked “filed” until January 12, 2000, after the statute of limitation had run. Id. 894-895. Nonetheless, Wells followed the “better rule” that a Complaint be deemed “filed” as of “the date on which it was first received by the clerk’s office,” regardless “the untimely payment of the required filing fee”. Id. at 896-899. See, also, e.g., Parissi v. Telechron, Inc., 349 U.S. 46, 47 (1955)(untimely filing fee payment did not “vitiate the validity” of appeal notice); Hunt v. Stone, 39 F.3d 1177 (4th Cir. 1994) (“Appellant’s petition should have been deemed filed on the date that the district court clerk received it along with what Appellant reasonably believed was the filing fee.”); Robinson v. Poe, 272 F.3d 921, 922-923 (2001), reh. en banc denied 2002 U.S. App. LEXIS 585 (7th Cir. 2002)(pro se §1983 complaint timely “filed” upon receipt by clerk, despite its return for lack of required filing fee; as local rule “cannot defeat a right, which in this case is the right to arrest the running of the statue of limitation by filing a complaint in the district court, that is conferred by the national rules”); McDowell v. Delaware State Police, 88 F.3d 188, 190-191 (3d Cir. 1996) (“Although a complaint is not formally filed until the filing fee is paid, we deem a complaint to be constructively filed as of the date that the clerk received the complaint – as long as the plaintiff ultimately pays the filing fee or the district court grants the plaintiff’s request to proceed in forma pauperis.”); Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 919-921 (9th Cir. 1987)(complaint constructively filed upon delivery to clerk despite rejection for non-compliance with local rules and filing fee statute); Rodgers v. Bowen, 790 F.2d 1550, 1551-1553 (11th Cir. 1986); Lyons v. Goodson, 787 F.2d 411, 412 (8th Cir. 1986); Leggett v. Strickland, 640 F.2d 774, 776 (5th Cir. 1981); In re Horob, 54 B.R. 693, 696 (Bankr. D.N.D. 1985); Johnson v. The Univ. of Va. Med. Ctr., 2007 U.S. Dis. LEXIS 3122, * 9 (W.D.Va. Jan. 17, 2007) (in forma pauperis Complaint is deemed “filed” when physically delivered to the Clerk’s office, not when formally docketed subsequently upon payment of fee); Cornett v. Weisenburger, 454 F.Supp.2d 544 (W.D. Va. 2006); and In re Emory, 219 B.R. 703, 708 (Bankr. D.S.C. 1998).