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Insufficient Filing Fees - Another Malpractice Trap

In order to file most lawsuits in Virginia, a plaintiff is required to pay the Clerk's Office a filing fee in an amount that is often correlated to the nature and amount of the lawsuit. What many do not realize is that this fee is not some peripheral requirement, but is a condition of the lawsuit being considered to have been filed at all.

Recently, some lawyers (and, by extension, their clients) got into trouble with an insufficient filing fee. In Landini v. Bil-Jax, Inc., Record No. 140591, the Supreme Court of Virginia found that a two dollar ($2) deficiency in a filing fee meant that a lawsuit had not been properly filed on the date that the papers were handed to the Clerk's Office. Rather, it was not until the remaining two dollars ($2) was paid four days later that the lawsuit was "filed."

In most circumstances, this might not have been a significant issue; however, in this case, the statute of limitations expired during those intervening four days. The Supreme Court held it was not until the day that the fee was paid in full that the lawsuit was considered "filed," and because that came after the statute of limitations expired, the lawsuit was dismissed with prejudice. It did not matter that a deputy clerk had supposedly told the lawyers that the fee they paid was sufficient; they had a duty to pay all the fees required by statute.

Bottom line: to the extent that you have a duty to file a lawsuit prior to the expiration of a statute of limitations, you should double and triple check your lawsuit's filing fees against the published fee schedule. Failure to do so could result in an insufficient fee, an expired statute of limitation and a very unhappy client filing a bar complaint and a malpractice claim against you.

You can read the Supreme Court's full (unpublished) Opinion here: http://www.courts.state.va.us/courts/scv/orders_unpublished/140591.pdf (PDF)

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Duff & Kronfeld, P.C.
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