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
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partially withdrawn from the Pension Fund and demanded that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).
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 ...