Mid S. Carbon Corp. v. Tricamp Capital, LLC

• Decision Date: 10 September 2015
• Docket Number: No. 15-1032,15-1032
• Parties: MID SOUTH CARBON CORPORATION, Plaintiff - Appellant, v. TRICAMP CAPITAL, LLC, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

MID SOUTH CARBON CORPORATION, Plaintiff - Appellant, v. TRICAMP CAPITAL, LLC, Defendant - Appellee.

No. 15-1032

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: July 29, 2015

September 10, 2015

UNPUBLISHED

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:14-cv-26023)

Before KEENAN and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert W. Bright, Middleport, Ohio, for Appellant. Nathan I. Brown, Randall L. Saunders, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Huntington, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Mid South Carbon Corporation ("MSCC") appeals the district court's order dismissing MSCC's case pursuant to Fed. R. Civ. P. 12(b)(4) for insufficient process. The district court dismissed MSCC's action because MSCC failed to attach a civil case information statement ("CCIS") to MSCC's initial state court pleading, as required by state law, and did not correct this deficiency before TriCamp Capital, LLC ("TriCamp") removed the proceeding to federal court pursuant to 28 U.S.C. §§ 1441, 1446 (2012). TriCamp has moved to dismiss MSCC's appeal, arguing that, pursuant to Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993), because the district court dismissed MSCC's action without prejudice, the decision was not final or otherwise appealable. We deny TriCamp's motion to dismiss, but affirm the district court's dismissal of MSCC's action.

I

We turn first to the motion to dismiss. We may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46 (1949). When a district court dismisses an action without prejudice, we "examine . . . the specific facts of thecase in order to guard against piecemeal litigation and repetitive appeals." Chao v. Rivendell Woods, Inc., 415 F.3d 342, 345 (4th Cir. 2005) (internal quotation marks omitted).

"Dismissals without prejudice are generally not appealable final orders." In re GNC Corp., ___ F.3d ___, ___, No. 14-1724, 2015 WL 3798174, at *3 n.3 (4th Cir. June 19, 2015). However, when it is "clear that amendment of the complaint could not cure its defects" or when the plaintiff "elects to stand on the complaint presented to the district court," the district court's dismissal without prejudice is an appealable final order. Chao, 415 F.3d at 345. An additional factor we consider is whether the district court dismissed plaintiff's action or just the complaint. See id. ("In Domino Sugar, we noted the difference between an order dismissing an action without prejudice and one dismissing a complaint without prejudice, stating that the latter order is generally not appealable.").

Applying these guideposts, we conclude that the order of dismissal is final and appealable. First, the district court dismissed MSCC's action and not just its complaint. Second, at the time of dismissal, MSCC, having filed amended complaints in both state and federal court, had already exhausted all avenues in seeking to cure its complaint. But once TriCamp removed MSCC's case to federal court, MSCC lost the ability to cure thedefect in its pleading because the state court lost jurisdiction over the case. See Ackerman v. ExxonMobil Corp., 734 F.3d 237, 249 (4th Cir. 2013) (recognizing that 28 U.S.C. § 1446(d) "deprives the state court of further jurisdiction over the removed case and that any post-removal actions taken by the state court in the removed case action are void ab initio"). Third, MSCC stands on its dismissed pleading, noting that it would effectively be prevented from litigating a newly-filed complaint in a West Virginia forum because TriCamp has initiated an action in another district regarding the same dispute. See VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 574-75 (4th Cir. 2013) (ruling that subsequently-filed action involving same dispute should be stayed, and resolution of issues in first action will have preclusive effect on subsequently-filed action). Accordingly, the district court's order is a final one and we have jurisdiction to hear MSCC's appeal.

II

In reviewing the district court's dismissal, the crux of the issue is whether MSCC's initial state court pleading, which did not include a CCIS, constituted a "complaint" sufficient to commence a valid civil action. "[A] federal court must honor state court rules governing commencement of civil actions when an action is first brought in state court and then removed tofederal court." Winkels v. George A. Hormel & Co., 874 F.2d 567, 570 (8th Cir. 1989). Thus "[a] federal court may consider the sufficiency of process after removal and does so by looking to the state law governing the process." Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985) (per curiam).

Under West Virginia law, "[a] civil action is commenced by filing a complaint." W. Va. R. Civ. P. 3(a). "Every complaint shall be accompanied by a completed civil case information statement in the form prescribed by the Supreme Court of Appeals." W. Va. R. Civ. P. 3(b). Under West Virginia law, a court clerk is without authority to file a complaint that is not accompanied by a CCIS. Cable v. Hatfield, 505 S.E.2d 701, 709 (W. Va. 1998). Accordingly, by not including a CCIS with its initial state court pleading, MSCC failed to submit the necessary papers to commence a valid action in accordance with the West Virginia Rules of Civil Procedure. See id.

MSCC advances three arguments to support its claim that the district court should have deemed the initial state court pleading sufficient to permit MSCC to proceed with its claims. First, MSCC argues that a West Virginia court would not rely on Cable to conclude that MSCC did not initiate a valid action because, unlike in Cable, the state court clerk in this casefiled MSCC's submission. We disagree. Under West Virginia law, when a state court clerk errs in applying the Rules of Civil Procedure, the error "amount[s] to an amendment to the Rules" and is an error with a constitutional dimension because a court clerk lacks the authority to amend the Rules. See Plum v. Camden-Clark Found., Inc., 496 S.E.2d 179, 181 n.2 (W. Va. 1997) (per curiam). Therefore, a West Virginia court presented with the dilemma posed by the clerk's improper filing of MSCC's submission would correct the clerk's error by nullifying the clerk's action and deem MSCC's case void ab initio.

Second, MSCC argues that this case is analogous to Wright v. Myers, 597 S.E.2d 295 (W. Va. 2004), where W. Va. R. Civ. P. 60(a) was applied to permit the correction of a clerical error by a state court clerk when date-stamping a complaint. Under Rule 60(a), "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." For purposes of Rule 60(a), "clerical error" is defined as:

An error committed in the performance of clerical work, no matter by whom committed; more specifically, a mistake in copying or writing; a mistake which naturally excludes any idea that its insertion was made in the exercise of any judgment or discretion, or in pursuance of any determination; an error made by aclerk in transcribing, or otherwise, which must be apparent on the face of the record, and capable of being corrected by reference to the record only.

Barber v. Barber, 464 S.E.2d 358, 362-63 (W. Va. 1995) (brackets and internal...