Hicks v. Miller Brewing Co

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 01-11422
(Summary Calendar)
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GERALD W HICKS,
Plaintiff - Appellant,
versus
MILLER BREWING COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
For the Northern District of Texas
4:01-CV-791-A
March 25, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM*:
Gerald Hicks appeals the district court’s order striking and unfiling his complaint for failure
to include a separately signed certificate of interested persons. Hicks filed his complaint within the

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statute of limitations period, but without a certificate of interested persons. Local rules in the
Northern District of Texas require that the certificate of interested persons be filed at the same time
as the complaint. N.D. TEX. R. 3.1 (providing that a separately signed certificate of interested persons
must be provided to the clerk “when the complaint is filed”). The district court therefore struck and
unfiled Hicks’s complaint. By the time Hicks received notice of the order striking the complaint, the
statutory period had expired.
The district court’s order striking the complaint, under the circumstances presented here,
violated FED. R. CIV. P. 83(a)(2). Rule 83(a)(2) provides that a “local rule imposing a requirement
of form shall not be enforced in a manner that causes a party to lose rights because of a nonwillful
failure to comply with the requirement.” Here, the rule requiring that the certificate of interested
persons be filed contemporaneously with the complaint imposes a requirement of form. Although
the requirement that the certificate be filed at some point is not itself a mere technicality, that the
certificate be filed at the same time as the complaint does constitute merely a formal requirement.
The purposes of the rule could have been accomplished as long as Hicks remedied his noncompliance
within a reasonable time. As long as Hicks’s failure to comply with the rule was not willful–and
nothing suggests that it was–he cannot be denied rights as a sanction.
Hicks was indeed denied rights as a result of the district court’s order. The district court may
have been able to fashion some sort of relief for Hicks in a subsequently filed lawsuit, perhaps by
holding that filing the original complaint equitably tolled the statute of limitations. Nevertheless,
Hicks lost his right to file a lawsuit–a right that did not depend on an exercise of the court’s
discretion–with the expiration of the statute of limitations period. Abridging Hicks’s substantive
rights for failure to comply with a local requirement of form falls afoul of FED. R. CIV. P. 83.

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We therefore REVERSE the order striking the complaint and REMAND to the district court
with instructions that the plaintiff be given 30 days to remedy the failure to file a separate certificate
of interested persons.

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