Can a complaint be “filed” before the “filing process” is completed? Actually, yes, according to Farley v. Koepp, No. 14-1695, a recent decision from the Seventh Circuit written by Judge Sykes.
Here is the scene: Late on a Friday afternoon (as all these sort of stories begin), an attorney’s assistant emails a complaint to the clerk’s office in the Southern District of Illinois, thus complying with the first step of the local rule. (Filers in that court could not open new cases on CM/ECF on their own at the time.) The clerk responds after 5 p.m., informing the filer that the CM/ECF case file is available for uploading the complaint. On the following Monday, the assistant attempts to upload the complaint electronically, but she fails to do so, reporting that “complications arose concerning the electronic payment of the filing fee.” Regardless of those complications, the last day to file the complaint within the limitations period was Monday (of course, it was), and the district court dismisses the case, ruling that the complaint, filed finally on Tuesday, was untimely.
The Seventh Circuit reversed—and, in the process, provided a bit of a lesson to all those who file complaints electronically.
Federal Rule of Civil Procedure 3 provides that civil actions are “commenced by filing a complaint.” So when is that? Don’t just look to the local rule, as the district court did. Rule 5(d)(2)(A) provides that a paper is “filed” by “delivering it . . . to the clerk,” and Rule 5(d)(4) tells us that the clerk cannot “refuse to file a paper solely because it is not in the form prescribed by these [federal] rules or by a local rule or practice.” Rule 83(a)(2) also places limits on the enforcement of local rules of “form.”
The result, the Seventh Circuit held, was that the delivery to the clerk was what mattered. Mere “requirements of form” (like failing to upload the complaint with the filing fee) were not fatal.
While this appeal was pending, the Southern District of Illinois changed its rules to permit attorneys to open cases on CM/ECF on their own. But the Seventh Circuit explained, in a footnote to its opinion, that the federal rules cited above protect filers generally from the nightmares of “defects in form.” The decision, in other words, has broader implications than merely the rules that were at issue for the hapless filer here.
This specific issue is unlikely to recur in any case filed in one of Wisconsin’s two federal courts. The Western District requires that the initiating attorney first email the clerk the civil cover sheet and a party-information form, but not the complaint. The clerk then opens a “shell” case and emails a case number to the attorney. The attorney must then (as in Farley) electronically upload a complaint into the shell case for it to be “filed.” Don’t count on the civil cover sheet and the party-information form sufficing as “filing” a “complaint” with the clerk, however. Wisconsin’s Eastern District (since 2011) has allowed attorneys to open cases themselves, using the CM/ECF system (with instructions available here).
