Mid South Carbon Corporation v. Tricamp Capital, LLC

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1032
MID SOUTH CARBON CORPORATION,
Plaintiff - Appellant,
v.
TRICAMP CAPITAL, LLC,
Defendant - Appellee.
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)
Submitted: July 29, 2015 Decided: September 10, 2015
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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 the

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case 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 the

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defect 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 to

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federal 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 case

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filed 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 a

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clerk 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 quotation marks omitted).
Here, two errors occurred in the state court—MSCC’s failure
to file the CCIS and the state court clerk’s filing of MSCC’s
pleading. The error committed by MSCC’s attorney occurred in
the performance of legal, rather than clerical work. The
clerk’s error was also not clerical in nature because it did not
involve any copying, writing, or transcribing. Instead, the
error possessed a constitutional dimension because it involved
an improper application of the West Virginia Rules of Civil
Procedure. See Plum, 496 S.E.2d at 181 n.2 (treating clerk’s
error with respect to filing complaint as an amendment to the
Rules of Civil Procedure and a constitutional error). Even
assuming that the clerk’s error was clerical, correction of this
error would entail striking MSCC’s pleading, which would have
the same effect as the district court’s determination that MSCC
did not file a valid action in state court. Accordingly, MSCC
cannot gain meaningful relief pursuant to Wright or W. Va. R.
Civ. P. 60(a).
Third, MSCC relies on Hoover v. W. Va. Bd. of Med., 602
S.E.2d 466 (W. Va. 2004), for the proposition that a West

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Virginia court would remand MSCC’s complaint to the state trial
court and permit MSCC to amend its complaint to include the
CCIS, allowing the amendment to relate back to the date MSCC
filed its initial pleading. We conclude that MSCC’s reliance on
Hoover is misplaced. Hoover involved an administrative agency
proceeding and the failure of members of the West Virginia Board
of Medicine to comply with statutorily created requirements when
signing a complaint against Hoover and is therefore not
comparable to this case. Id. at 468, 473.
Further, even if an amendment to the complaint in state
court could cure the defect in MSCC’s complaint, MSCC has no
presently-available means for remanding this case to state court
and did not raise this argument below when MSCC moved for remand
within the 30-day time limit to move for remand under 28 U.S.C.
§ 1447(c) (2012).
Accordingly, even though we have jurisdiction to hear
MSCC’s appeal and therefore deny TriCamp’s motion to dismiss, we
conclude that the district court properly held that MSCC failed
to commence a valid action and that the deficiency in MSCC’s
action cannot be cured.* Therefore, we affirm the district
* We further deny MSCC’s motion to file an addendum to its
reply brief because the addendum consists of a document and an
affidavit not contained in the district court record. See Fed.
R. App. P. 10(a) (providing that record on appeal consists only
(Continued)

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court’s order dismissing MSCC’s action. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this Court and argument would
not aid the decisional process.
AFFIRMED
of certified copy of docket, transcripts of any proceedings, and
original papers and exhibits filed in district court).

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