                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-1032


MID SOUTH CARBON CORPORATION,

                Plaintiff - Appellant,

          v.

TRICAMP CAPITAL, LLC,

                Defendant - Appellee.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:14-cv-26023)


Submitted:   July 29, 2015               Decided:   September 10, 2015


Before KEENAN and    HARRIS,   Circuit   Judges,    and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert W. Bright, Middleport, Ohio, for Appellant.    Nathan I.
Brown, Randall L. Saunders, NELSON MULLINS RILEY & SCARBOROUGH,
LLP, Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Mid South Carbon Corporation (“MSCC”) appeals the district

court’s order dismissing MSCC’s case pursuant to Fed. R. Civ. P.

12(b)(4) for insufficient process.                 The district court dismissed

MSCC’s    action    because    MSCC     failed       to     attach     a   civil       case

information     statement     (“CCIS”)        to   MSCC’s      initial     state      court

pleading, as required by state law, and did not correct this

deficiency before TriCamp Capital, LLC (“TriCamp”) removed the

proceeding to federal court pursuant to 28 U.S.C. §§ 1441, 1446

(2012).     TriCamp has moved to dismiss MSCC’s appeal, arguing

that, pursuant       to   Domino   Sugar       Corp.      v.   Sugar   Workers        Local

Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993), because the

district court dismissed MSCC’s action without prejudice, the

decision    was     not   final    or   otherwise          appealable.           We    deny

TriCamp’s motion to dismiss, but affirm the district court’s

dismissal of MSCC’s action.

                                          I

      We turn first to the motion to dismiss.                        We may exercise

jurisdiction only over final orders, 28 U.S.C. § 1291 (2012),

and   certain      interlocutory    and       collateral        orders,     28     U.S.C.

§ 1292 (2012); Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 545-46 (1949).         When a district court dismisses an action

without prejudice, we “examine . . . the specific facts of the



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case    in   order     to     guard   against     piecemeal    litigation        and

repetitive appeals.”           Chao v. Rivendell Woods, Inc., 415 F.3d

342, 345 (4th Cir. 2005) (internal quotation marks omitted).

       “Dismissals without prejudice are generally not appealable

final orders.”       In re GNC Corp., ___ F.3d ___, ___, No. 14-1724,

2015 WL 3798174, at *3 n.3 (4th Cir. June 19, 2015).                       However,

when it is “clear that amendment of the complaint could not cure

its    defects”   or   when    the    plaintiff   “elects     to   stand    on   the

complaint presented to the district court,” the district court’s

dismissal without prejudice is an appealable final order.                       Chao,

415 F.3d at 345.            An additional factor we consider is whether

the    district   court      dismissed   plaintiff’s    action     or    just    the

complaint.     See id. (“In Domino Sugar, we noted the difference

between an order dismissing an action without prejudice and one

dismissing    a   complaint       without    prejudice,     stating      that    the

latter order is generally not appealable.”).

       Applying these guideposts, we conclude that the order of

dismissal is final and appealable.                First, the district court

dismissed MSCC’s action and not just its complaint.                     Second, at

the time of dismissal, MSCC, having filed amended complaints in

both state and federal court, had already exhausted all avenues

in seeking to cure its complaint.                 But once TriCamp removed

MSCC’s case to federal court, MSCC lost the ability to cure the



                                         3
defect in its pleading because the state court lost jurisdiction

over the case.         See Ackerman v. ExxonMobil Corp., 734 F.3d 237,

249     (4th   Cir.    2013)       (recognizing            that    28       U.S.C.    § 1446(d)

“deprives      the    state       court   of        further       jurisdiction         over   the

removed    case      and    that    any   post-removal            actions      taken     by   the

state court in the removed case action are void ab initio”).

Third, MSCC stands on its dismissed pleading, noting that it

would    effectively        be     prevented        from    litigating         a     newly-filed

complaint in a West Virginia forum because TriCamp has initiated

an action in another district regarding the same dispute.                                     See

VRCompliance LLC v. HomeAway, Inc., 715 F.3d 570, 574-75 (4th

Cir. 2013) (ruling that subsequently-filed action involving same

dispute should        be    stayed,       and       resolution         of   issues     in   first

action     will      have        preclusive         effect        on    subsequently-filed

action).       Accordingly, the district court’s order is a final one

and we have jurisdiction to hear MSCC’s appeal.

                                               II

        In reviewing the district court’s dismissal, the crux of

the issue is whether MSCC’s initial state court pleading, which

did not include a CCIS, constituted a “complaint” sufficient to

commence a valid civil action.                       “[A] federal court must honor

state court rules governing commencement of civil actions when

an action is first brought in state court and then removed to



                                                4
federal court.”            Winkels v. George A. Hormel & Co., 874 F.2d

567, 570 (8th Cir. 1989).              Thus “[a] federal court may consider

the sufficiency of process after removal and does so by looking

to the state law governing the process.”                       Usatorres v. Marina

Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir.

1985) (per curiam).

     Under West Virginia law, “[a] civil action is commenced by

filing a complaint.”          W. Va. R. Civ. P. 3(a).             “Every complaint

shall   be    accompanied       by    a   completed     civil    case     information

statement     in     the    form     prescribed    by    the    Supreme    Court    of

Appeals.”      W. Va. R. Civ. P. 3(b).             Under West Virginia law, a

court clerk is without authority to file a complaint that is not

accompanied by a CCIS.             Cable v. Hatfield, 505 S.E.2d 701, 709

(W. Va. 1998).         Accordingly, by not including a CCIS with its

initial      state    court     pleading,      MSCC     failed     to   submit     the

necessary papers to commence a valid action in accordance with

the West Virginia Rules of Civil Procedure.                 See id.

     MSCC advances three arguments to support its claim that the

district     court     should      have   deemed      the   initial     state    court

pleading sufficient to permit MSCC to proceed with its claims.

First, MSCC argues that a West Virginia court would not rely on

Cable to conclude that MSCC did not initiate a valid action

because, unlike in Cable, the state court clerk in this case



                                           5
filed MSCC’s submission.         We disagree.        Under West Virginia law,

when a state court clerk errs in applying the Rules of Civil

Procedure, the error “amount[s] to an amendment to the Rules”

and is an error with a constitutional dimension because a court

clerk lacks the authority to amend the Rules.                    See Plum v.

Camden-Clark Found., Inc., 496 S.E.2d 179, 181 n.2 (W. Va. 1997)

(per curiam).        Therefore, a West Virginia court presented with

the   dilemma   posed    by    the     clerk’s   improper   filing   of   MSCC’s

submission would correct the clerk’s error by nullifying the

clerk’s action and deem MSCC’s case void ab initio.

      Second,   MSCC     argues        that   this   case   is   analogous    to

Wright v. Myers, 597 S.E.2d 295 (W. Va. 2004), where W. Va. R.

Civ. P. 60(a) was applied to permit the correction of a clerical

error by a state court clerk when date-stamping a complaint.

Under Rule 60(a), “[c]lerical mistakes in judgments, orders or

other   parts   of    the     record    and   errors   therein   arising     from

oversight or omission may be corrected by the court at any time

of its own initiative or on the motion of any party and after

such notice, if any, as the court orders.”               For purposes of Rule

60(a), “clerical error” is defined as:

      An error committed in the performance of clerical
      work, no matter by whom committed; more specifically,
      a mistake in copying or writing; a mistake which
      naturally excludes any idea that its insertion was
      made in the exercise of any judgment or discretion, or
      in pursuance of any determination; an error made by a


                                          6
       clerk in transcribing, or otherwise, which must be
       apparent on the face of the record, and capable of
       being corrected by reference to the record only.

Barber v. Barber, 464 S.E.2d 358, 362-63 (W. Va. 1995) (brackets

and internal quotation marks omitted).

       Here, two errors occurred in the state court—MSCC’s failure

to file the CCIS and the state court clerk’s filing of MSCC’s

pleading.        The error committed by MSCC’s attorney occurred in

the    performance     of    legal,    rather      than   clerical     work.        The

clerk’s error was also not clerical in nature because it did not

involve any copying, writing, or transcribing.                        Instead, the

error possessed a constitutional dimension because it involved

an    improper    application    of     the     West   Virginia   Rules   of       Civil

Procedure.       See Plum, 496 S.E.2d at 181 n.2 (treating clerk’s

error with respect to filing complaint as an amendment to the

Rules    of   Civil    Procedure      and   a   constitutional       error).       Even

assuming that the clerk’s error was clerical, correction of this

error would entail striking MSCC’s pleading, which would have

the same effect as the district court’s determination that MSCC

did not file a valid action in state court.                    Accordingly, MSCC

cannot gain meaningful relief pursuant to Wright or W. Va. R.

Civ. P. 60(a).

       Third, MSCC relies on Hoover v. W. Va. Bd. of Med., 602

S.E.2d    466    (W.   Va.   2004),     for     the    proposition    that     a   West



                                            7
Virginia court would remand MSCC’s complaint to the state trial

court and permit MSCC to amend its complaint to include the

CCIS, allowing the amendment to relate back to the date MSCC

filed its initial pleading.           We conclude that MSCC’s reliance on

Hoover is misplaced.           Hoover involved an administrative agency

proceeding and the failure of members of the West Virginia Board

of Medicine to comply with statutorily created requirements when

signing    a   complaint       against    Hoover         and    is      therefore    not

comparable to this case.           Id. at 468, 473.

     Further, even if an amendment to the complaint in state

court could cure the defect in MSCC’s complaint, MSCC has no

presently-available means for remanding this case to state court

and did not raise this argument below when MSCC moved for remand

within the 30-day time limit to move for remand under 28 U.S.C.

§ 1447(c) (2012).

     Accordingly,       even    though       we   have    jurisdiction         to   hear

MSCC’s appeal and therefore deny TriCamp’s motion to dismiss, we

conclude that the district court properly held that MSCC failed

to commence a valid action and that the deficiency in MSCC’s

action    cannot   be   cured. *      Therefore,     we        affirm    the   district


     * We further deny MSCC’s motion to file an addendum to its
reply brief because the addendum consists of a document and an
affidavit not contained in the district court record. See Fed.
R. App. P. 10(a) (providing that record on appeal consists only
(Continued)

                                         8
court’s order dismissing MSCC’s action.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this Court and argument would

not aid the decisional process.

                                                        AFFIRMED




of certified copy of docket, transcripts of any proceedings, and
original papers and exhibits filed in district court).



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