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Prompt correction rescues deficient complaint

Where a complaint filed by a woman asserting claims for race discrimination and retaliation was signed by an attorney who was not admitted in the court, a corrected complaint signed by an admitted attorney was promptly filed, but the corrected complaint was filed more than 90 days after the EEOC issued the right-to-sue notice, the company’s motion to dismiss was denied. The prompt correction allowed the revised complaint to be deemed as timely filed.


Yolanda Caison alleges claims of race discrimination and retaliation in violation of Title VII against her former employer, Thermo Fisher Scientific. Thermo Fisher moves to dismiss the complaint as untimely filed.


Title VII requires that a plaintiff file any lawsuit within 90 days of receiving a right-to-sue letter from the EEOC. Defendant argues that the complaint is untimely because the original complaint, filed in the Eastern District of Virginia by Charles Tucker Jr., is a legal nullity. Defendant cites a local rule providing that “[a]ny counsel presenting papers, suits, or pleadings for filing, or making an appearance, must be members of the bar of this Court, or must have counsel who are members of the bar of this Court to join in the pleading by endorsement….” The same local rules require Virginia State Bar membership to sign an initial pleading.

Tucker is not a member of the Virginia State Bar. With the original complaint — filed on Jan. 31, 2022 — being a nullity, the complaint filed on Feb. 2 should be the operative complaint for purposes of analyzing timeliness. Since this complaint was filed more than 90 days after the issuance of the right to sue letter, defendant argues that the complaint should be dismissed as untimely.

Defendant’s argument, however, disregards Rule 11 of the Federal Rules of Civil Procedure. Plaintiff corrected the first complaint in accordance with Rule 11, which provides that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented …. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.” Plaintiff promptly corrected the signature error one day after being notified. Therefore, the complaint can be deemed timely filed as of Jan. 31, 2022.

Defendant cites cases stating that defective pleadings are considered legal nullities, such as a complaint signed by a lay person or a pleading signed by a corporate agent for a corporation. Those cases do not address this situation, where a complaint signed by the wrong person is promptly corrected. To the extent that the local rules of the Eastern District of Virginia might suggest a different outcome, those rules must be read to be consistent with, and not in conflict with, the Federal Rules of Civil Procedure. But the rules do not conflict. The requirement that a pleading be signed by an attorney licensed in Virginia is completely consistent with Rule 11’s allowance for unsigned pleadings to be promptly corrected.

Finally, defendant also argues that Rule 11(a)’s correction provision does not apply because it states that unsigned papers can be corrected, not papers that were signed by someone without authority to sign. The court sees this as a distinction without a difference. A paper that, due to the application of another rule, is considered invalid because of a wrong signature can be considered unsigned under Rule 11.

Defendant’s motion to dismiss denied.

Caison v. Thermo Fisher Scientific, Case No. 5:22-cv-00013, Oct. 17, 2022. WDVA at Harrisonburg (Dillon). VLW 022-3-468. 6 pp.