After filing a big personal injury case, a lawyer received a phone call from the local clerk. It seems that this county is charging an extra TWO WHOLE DOLLARS above and beyond what other counties charge to file a case. It’s not even the actual filing fee, it’s a tacked-on “library fee.” No problem, just pay the extra two bucks and move on with the case. Except the clerk doesn’t cash the check until after the statute of limitations runs. What happens next?

According to the Virginia Supreme Court: goodbye lawsuit!

Does this seem fair to you?

This is the story of Landini v. Bil-Jax Inc. (VLW 015-6-011), recounted in Virginia Lawyers Weekly:

The failed lawsuit involved an injury suffered by a high school band official in Powhatan County. Neil Landini had fallen from a drum major’s podium, according to one of his attorneys. Landini and the workers’ compensation insurance company for the school division hired Salem lawyer C. Kailani Memmer to file a products liability action for Landini’s injuries. After Memmer determined the amount of damages to be demanded, a law office staffer contacted a nearby clerk’s office to learn the proper amount of filing fees, Memmer said. The staffer was told the amount was $344, so she sent that amount with the suit to be filed in Powhatan Circuit Court.

OK, there’s our first problem. If the goal is to file a lawsuit in Powhatan Circuit Court, why would a firm call any clerk other than the Powhatan Circuit Court clerk? You don’t call up Wicked to find out how much Book of Mormon tickets are, and you don’t call your clerk in Roanoke to figure out how much they’re charging in Richmond. Should all Virginia courts have identical filing fees for the sake of uniformity? Maybe, but that’s not really the point right now.

The package arrived six days before the limitations period was due to expire, but the clerk waited until the due date to call Memmer’s office, the Landini brief said. The clerk explained that Powhatan County had increased the library assessment from $2 to $4, so the total filing costs were $346.

Problem number two: why is this suit waiting until less than a week before the statute expires? Does Virginia have such super-strict pleading requirements that it takes two years to plead a colorable claim? The clerk should have pointed out the error immediately instead of waiting six days, but — apologies to any hard-working clerks who may be reading this — lawyers should assume the clerk is lazy and be pleasantly surprised if he or she turns out to be Johnny/Janie-on-the-spot. Hell, some courts fire clerks for exerting any effort.

The clerk did not explain that the suit had not yet been filed, according to Memmer and Landini’s appellate attorney, L. Steven Emmert of Virginia Beach.

What other interpretation is there? Moreover, given that this is the last day before the statute runs, how is “Hey, this case is still filed as of today, right?” not the first f**king question? Because if there’s any risk, it’s time to hop in the car and make the two-and-a-half-hour trip to drop off the fee in person. Would a five-hour round-trip to pay $2 be ridiculous? Yes. Less ridiculous than throwing away a $2.5 million suit over $2? No.

So obviously they tried to deliver the fee in person… oh wait, no.

Memmer then sent a $2 check by mail. The clerk stamped the suit as being filed four days after the due date.

So now what?

The lawyer later voluntarily dismissed the suit and refiled the action.

Wha? But it’s after the statute has run. Why would this work? Were you hoping the lawyers defending a company in a $2.5 million litigation took stupid pills? Seriously, I have so many questions about every stage of this comedy of errors.

In defense of the plaintiffs, they make some good statutory arguments about how “filing” should be dated from the receipt of the complaint, and only the filing of a summons should be contingent on paying fees. But the problem is they shouldn’t have reached this point.

So is it fair?

Actually, yeah kinda.

The full opinion is available on the next page….

$2 short … and out of court [Virginia Lawyers Weekly]