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CENTRAL STATES, SE & SW PENSION v. PARAMOUNT LIQUOR

February 9, 1999

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, ET AL., PLAINTIFFS,
v.
PARAMOUNT LIQUOR COMPANY, DEFENDANT.



The opinion of the court was delivered by: Alesia, District Judge.

MEMORANDUM OPINION AND ORDER

Before the court is defendant Paramount Liquor Company's motion to dismiss plaintiffs Central States, Southeast and Southwest Areas Pension Fund and Howard McDougall's complaint because (1) this is a duplicative action and (2) the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court grants the defendant's motion to dismiss.

I. BACKGROUND

Plaintiff Central States, Southeast and Southwest Areas Pension Fund ("Pension Fund") is a multi-employer plan as defined by section 4001(a)(3) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1301 (a)(3). Plaintiff Howard McDougall ("McDougall") is a trustee of the Pension Fund. Defendant Paramount Liquor Company ("Paramount") was a participant in the Pension Fund.

Prior to August 1, 1991, Paramount contributed to the Pension Fund on behalf of some of Paramount's employees. On or about August 1, 1991, Paramount ceased to contribute to the Pension Fund on behalf of some of Paramount's participating employees. As a result of the cessation, the Pension Fund determined that Paramount incurred a partial withdrawal pursuant to section 4205(a) of ERISA, 29 U.S.C. § 1385 (a). On July 26, 1995, pursuant to section 4219(b)(1) of ERISA, 29 U.S.C. § 1399 (b)(1), the Pension Fund notified Paramount that Paramount had partially withdrawn from the Pension Fund and demanded that Paramount pay its withdrawal liability.

On September 29, 1995, Paramount requested that the Pension Fund review its liability determination pursuant to section 4219(b)(2)(A) of ERISA, 29 U.S.C. § 1399 (b)(2)(A). After reviewing Paramount's liability, the Pension Fund, on December 4, 1995, affirmed its prior decision on Paramount's liability.

On October 20, 1998, the Pension Fund, pursuant to 29 C.F.R. § 4221.9, filed a motion to reconsider the arbitrator's award. On November 2, 1998, the arbitrator issued a supplemental opinion in which he denied the Pension Fund's motion.

On November 12, 1998, Paramount filed a pleading in the United States District Court for the Eastern District of Missouri ("Eastern District of Missouri"). Paramount's pleading was delivered to the courthouse by a FedEx employee at 9:10 a.m. However, the Pension Fund and McDougall claim that the pleading shows a time stamp of 4:33 p.m. On this same day, the Pension Fund and McDougall filed a complaint in the United States District Court for the Northern District of Illinois ("Northern District of Illinois").*fn1 This complaint was time stamped at 4:14 p.m. The Pension Fund and McDougall's complaint alleges that the arbitrator's award is erroneous and, thus, should be vacated.

In response, Paramount filed, on December 28, 1998, its motion to dismiss the complaint. Paramount moves for this court to dismiss the complaint on two grounds: (1) this is a duplicative action and (2) the complaint fails to state a claim. The court will address each ground in turn. The court has subject matter jurisdiction pursuant to sections 4221(b)(2) and 4301(c) of ERISA, 29 U.S.C. § 1401 (b)(2), 1451(c).

II. DISCUSSION

A. Duplicative action

Paramount alleges that the Pension Fund and McDougall's complaint should be dismissed because this is duplicative of a parallel action pending in the Eastern District of Missouri. Before the court can make a decision on whether to dismiss this case as duplicative, the court must first determine which action was first filed. Both the plaintiffs, the Pension Fund and McDougall, and the defendant, Paramount, claim that their respective suits were filed first. Paramount claims that it filed its suit on November 12, 1998 at 9:10 a.m. when the pleading was delivered to the clerk. However, the Pension Fund and McDougall claim that Paramount's pleading was not filed until 4:33 p.m., the time which is allegedly stamped on the pleading.*fn2 Furthermore, the Pension Fund and McDougall claim that since Paramount's pleading was not timed stamped until 4:33 p.m., that their complaint, filed at 4:14 p.m. on November 12, 1998, was the first to be filed.

The Pension Fund and McDougall allege that "delivery clearly does not mean `filed.'" (Pls.' Resp. at 7). However, the Pension Fund and McDougall have failed to cite any law in support of their position. Unfortunately, neither the Federal Rules of Civil Procedure nor the Local Rules for the Eastern District of Missouri nor for the Northern District of Illinois provide a clear definition of the term "file." The court, however, has found several cases standing for the opposite of the Pension Fund and McDougall's position. Filing is complete once the document is delivered to and received by the proper official. United States v. Lombardo, 241 U.S. 73, 76, 36 S.Ct. 508, 60 L.Ed. 897 (1916) (basing this definition on the ordinary meaning of the word because Congress did not define "file" in the White Slave Act). Although Lombardo was decided before the Federal Rules of Civil Procedure were promulgated, courts have relied on it and Federal Rules of Civil Procedure 3, 5(e), and 77 for the same proposition. See, e.g., Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939) ("The word `filed' . . . requires of one filing a suit, merely the depositing of the instrument with the custodian for the purpose of being filed. Except where specific statute otherwise provides, and none such is present here, it charges him with no further duty, [and] subjects him to no untoward consequences."); Greeson v. Sherman, 265 F. Supp. 340, 342 (W.D.Va. 1967) ("If Rule 3 is read in conjunction with Rule 5 (e) . . . [a complaint is filed when] the complaint is delivered to an officer of the court who is authorized to receive it."); Freeman v. Giacomo Costa Fu ...


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