USCA4 Appeal: 23-1709 Doc: 49 Filed: 11/20/2024 Pg: 1 of 6

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1709

JAY FOLSE,

Plaintiff – Appellant,

v.

TIFFANY HOFFMAN, in her personal capacity; CHRISTIPHER COOK, in his personal capacity; JONATHAN STIPETICH, in his personal capacity; FRANCIS GORDON; MICHAEL BEAVER; HEATHER GORDON,

Defendants – Appellees.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:23-cv-00212-JPB)

Argued: September 25, 2024 Decided: November 20, 2024

Before AGEE, THACKER, and HEYTENS, Circuit Judges.

Affirmed by published opinion. Judge Heytens wrote the opinion, which Judge Agee and Judge Thacker joined.

ARGUED: Jeremy B. Cooper, BLACKWATER LAW, PLLC, Pittsburgh, Pennsylvania, for Appellant. Thomas E. Buck, BAILEY & WYANT, PLLC, Wheeling, West Virginia, for Appellees. USCA4 Appeal: 23-1709 Doc: 49 Filed: 11/20/2024 Pg: 2 of 6

TOBY HEYTENS, Circuit Judge:

Pro se litigant Jay Folse tried to start a lawsuit by faxing a complaint to a federal

district court. The clerk stamped the complaint “filed,” created an electronic docket for the

case, and added the complaint to the docket. Two weeks later, the district court dismissed

the complaint without prejudice, determining its local rules did not permit filing complaints

by fax and declining Folse’s request for permission to do so. We have appellate jurisdiction

because the district court dismissed Folse’s complaint “without prejudice and without

granting leave to amend.” Britt v. DeJoy,

(4th Cir. 2022) (en banc).

Seeing no reversible error, we affirm.

* * *

Federal Rule of Civil Procedure 5(d)(3)(B)(i) says pro se litigants may “file

electronically only if allowed by court order or by local rule.” The current rules do not

define “file electronically.” But a previous version of Rule 5 referenced “fil[ing] by

facsimile or other electronic means.” Fed. R. Civ. P. 5(e) (1994) (repealed 1996) (emphasis

added). And when that language was removed, the Advisory Committee notes stated that

“[f]acsimile transmission continues to be included as an electronic means.” Notes of

Advisory Committee on Rules—1996 Amendment. That conclusion—that filing by fax is

a form of electronic filing—squares nicely with the plain meaning of “electronically,” and

Folse does not challenge it. For that reason, the relevant question is whether a local rule or

court order “allowed” Folse to file a complaint via fax. We conclude the answer is no.

Folse relies mainly on one of the district court’s local rules. That rule reads:

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As stated in LR Gen P 5.01, absent good cause, counsel shall file electronically in CM/ECF. However, other than a complaint or petition, when necessary a party may file a document by fax transmission. The Clerk of Court shall accept the document as filed if the filing and the document comply with these and other applicable rules and statutes.

N.D. W. Va. LR Gen. P. 5.05(a).

On first view, this rule seems to make Folse’s position weaker, not stronger. The

rule’s second sentence says “a party” may sometimes file documents “by fax transmission”

while specifically excluding “a complaint or petition” from such treatment. N.D. W. Va.

LR Gen. P. 5.05(a). Folse is “a party” to this case. For that reason, the most straightforward

reading of Local Rule 5.05(a) is that it forbade Folse from filing his complaint via fax.

Folse reads the rule differently. He notes that the rule’s first sentence—which

establishes a general rule requiring filing via CM/ECF—refers to “counsel” rather than to

pro se litigants. Accord Fed. R. Civ. P. 5(d)(3)(A) (creating a general rule that “[a] person

represented by an attorney must file electronically”); N.D. W. Va. LR Gen. P. 5.01

(similar). Invoking the principle that “adjacent statutory subsections that refer to the same

subject matter should be read harmoniously,” Doe v. Cooper,

(4th Cir.

2016) (quotation marks removed), Folse argues the words “a party” in Local Rule 5.05(a)’s

next sentence should also be understood as applying only to represented parties.

That argument fails for several reasons. To begin, it flouts the interpretive principle

that when drafters use “certain language in one part of ” an enactment (here, ‘counsel’) and

“different language in another” (here, ‘a party’), “the court assumes different meanings

were intended.” Sosa v. Alvarez-Machain,

, 711 n.9 (2004) (quotation marks

removed). But even if counsel and party meant the same thing here, that still would not

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help Folse. The question is not, as Folse asserts, whether Local Rule 5.05(a) prohibits only

represented litigants from filing complaints by fax. As just explained, the Federal Rules of

Civil Procedure already bar pro se litigants from fax filing any document unless “allowed”

to do so by local rule. Fed. R. Civ. P. 5(d)(3)(B)(i). For that reason, it would not be enough

for Folse to show that Local Rule 5.05(a) does not forbid him from filing his complaint by

fax. Rather, Folse needs to identify a local rule that affirmatively authorized him to do so.

To be sure, the Federal Rules of Civil Procedure also say pro se litigants may file

electronically “if allowed by court order.” Fed. R. Civ. P. 5(d)(3)(B)(i). For that reason,

the district court would have had discretion to permit Folse to file his complaint by fax.

Accord N.D. W. Va. LR Gen. P. 89.01 (permitting district judges to “allow departures from

these Local Rules when warranted by particular facts and circumstances”). But “a district

court’s application and interpretation of its own local rules should generally be reviewed

for abuse of discretion,” Weitzner v. Sanofi Pasteur Inc.,

(3d Cir. 2018),

and Folse makes no argument that the district court committed a case-specific abuse of

discretion by denying him leave to file electronically here. For that reason, any such claim

is now forfeited. See, e.g., Grayson O Co. v. Agadir Int’l LLC,

(4th Cir.

2017).

Instead, Folse insists the district court’s treatment of his case conflicts with Federal

Rule of Civil Procedure 83(a)(2), which states that “[a] local rule imposing a requirement

of form must not be enforced in a way that causes a party to lose any right because of a

nonwillful failure to comply.” That argument fails several times over.

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First, Rule 83(a)(2) is inapplicable. The baseline “requirement” here—i.e., non-

represented litigants may not file documents electronically unless permitted by a local rule

or court order—comes from the Federal Rules of Civil Procedure rather than from a local

rule. There was thus no “local rule” that was “enforced in a way that” caused Folse to lose

any right that he otherwise would have had absent that rule.

Second, the enforcement of the rule that pro se litigants have no general entitlement

to file electronically did not cause Folse “to lose any right.” Fed. R. Civ. P. 83(a)(2). The

district court clerk did not refuse to accept Folse’s document for filing, as happened in

Allen v. Atlas Box & Crating Co.,

(4th Cir. 2023), and certain out-of-circuit

cases discussed in Folse’s briefs. See, e.g., Farley v. Koepp,

(7th Cir. 2015).

Instead, the district court dismissed the complaint without prejudice, which left the door

open for refiling. See, e.g., Semtek Int’l Inc. v. Lockheed Martin Corp.,

(2001). True, the statute of limitations would normally have run by the time the district

court dismissed Folse’s complaint because he submitted it on the last day of the relevant

limitations period. But the timely delivery of Folse’s complaint stopped the statute of

limitations from running, see, e.g., Allen, 59 F.3d at 148, and it appears Folse had another

year to refile this action after the district court dismissed the complaint based on Folse’s

failure to file it in a proper manner. See Owens v. Okure,

(1989)

(explaining that “courts entertaining claims brought under 42 U.S.C. § 1983”—the federal

statute under which Folse brought suit—“should borrow the state statute of limitations for

personal injury actions”); Heimeshoff v. Hartford Life & Accident Ins. Co.,

(2013) (“[W]hen a federal statute is deemed to borrow a State’s limitations period, the

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State’s tolling rules are ordinarily borrowed as well[.]”);

(a)

(providing a one-year refiling period for an action that “was involuntarily dismissed for

any reason not based upon the merits of the action”).

Third, Folse cannot show that any conceivable right he lost was “because of a

nonwillful failure to comply” with the relevant rules. Fed. R. Civ. P. 83(a)(2) (emphasis

added). “Willful” means “[d]one wittingly or on purpose, as opposed to accidentally or

casually.” Willful, Black’s Law Dictionary (12th ed. 2024). Folse did not simply fax his

complaint to the district court—he also filed a separate motion asking the court “to allow

him to file the Complaint . . . by fax.” JA 16. And this, in turn, suggests that Folse knew he

could not file the complaint by fax absent permission to do so.

* * *

“[T]rial courts are encouraged to liberally treat procedural errors made by pro se

litigants.” Bauer v. Commissioner,

(4th Cir. 1996). Rather than dismissing

the complaint outright, the district court could have permitted Folse to file his complaint

by fax or issued an order to show cause why the case should not be dismissed for failure to

comply with the paper-document requirement. See Farley,

(noting that

litigants who do not “promptly come into compliance” with local filing rules may have

their cases dismissed for failure to prosecute). But no Federal Rule of Civil Procedure or

local rule gave Folse the right to do what he did here, and he has not shown that the district

court committed legal error or abused its discretion in declining to bend the normal rules

for him. The district court’s judgment is

AFFIRMED.

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