We’ve previously posted on the ridiculous misjoinders frequently seen in mass tort cases. To avoid paying filing fees, plaintiffs’ lawyers join the claims of scores — or hundreds, or thousands — of unrelated plaintiffs in a single complaint. As we noted in our earlier post, courts usually see through those shenanigans and order severance and re-filing of the complaints as separate lawsuits on behalf of individual plaintiffs.

But now there’s a new wrinkle: plaintiffs’ counsel sometimes insist that they shouldn’t have to pay separate filing fees for each of the new complaints. It’s no surprise that plaintiffs make that argument. After all, the filing fee is $350 per complaint. Multiply $350 times a few thousand complaints, and pretty soon you’re talking real money.

But should plaintiffs nonetheless be required to pay those fees? Of course they should.

First, the statute requiring the payment of filing fees is unambiguous:

The clerk of each district court shall require the parties instituting any civil action, suit or proceeding in such court, whether by original process, removal or otherwise, to pay a filing fee of $350, except that on application for a writ of habeas corpus the filing fee shall be $5.

28 U.S.C. Sec. 1914(a). That language should be dispositive. When claims are severed for misjoinder and new complaints are filed, a civil action has surely been instituted “by original process, removal or otherwise.”

Happily, courts regularly so hold. For example, in In re Diet Drugs, 325 F. Supp. 2d 540, 542 (E.D. Pa. 2004), app. dism’d, 418 F.3d 372 (3d Cir. 2005), 62 plaintiffs filed a single product liability complaint in Mississippi state court. After removal and transfer to the pending MDL proceeding, the federal court severed the plaintiffs’ claims for misjoinder and ordered the filing of separate complaints. The court properly interpreted the broad language of Section 1914(a) to require the payment of filing fees for each of the new complaints:

While it is true that the plaintiffs started out with one civil action, this court has now compelled the filing of separate complaints for each of the plaintiffs. The filing of a separate complaint constitutes the institution of a civil action or proceeding — if not by original process or removal, then otherwise.

Id. at 542 (emphasis in original). Similarly, in In re Seroquel Products Liability Litigation, No. 6:06-md-1769-Orl-22DAB, 2007 WL 737589 (M.D. Fla. Mar. 7, 2007), the court severed the claims of misjoined plaintiffs and ordered each plaintiff to pay a filing fee. Plaintiffs sought to reduce the fee because, if the fee were not reduced, plaintiffs’ counsel would immediately be forced to pay more than $2 million in filing fees. The court denied plaintiffs’ motion both because filing fees are a “gatekeeping feature” and because the court was entitled to be paid a fee that defrays from the cost of managing plaintiffs’ individual cases. Id. at *3.

Those decisions are not alone. See also, e.g., Baumgardner v. Wyeth Pharmaceuticals, No. 05-05720-JF, slip op. at 3 (E.D. Pa. May 11, 2006) (“There really are 10 separate cases. If plaintiffs wish to proceed in this court, each set of plaintiffs must pay the appropriate filing fee.”); DIRECTV v. Loussaert, 218 F.R.D. 639, 644 (S.D. Iowa 2003) (each plaintiff must pay filing fee for new action after claims severed for misjoinder); DIRECTV v. Beecher, 296 F. Supp. 2d 937, 945 (S.D. Ind. 2003) (severing misjoined claims and granting plaintiff option “to file separate actions, if it chooses to do so, with new complaints and filing fees”): Aaberg v. ACandS, 152 F.R.D. 498, 501 (D. Md. 1994) (if new complaints filed after severance for misjoinder, “any such filing must be accompanied by the appropriate filing fee”).

We don’t like spilling ink (or, in this cyber-world, is it “wasting electrons”?) over routine administrative matters such as the obligation to pay filing fees. But if plaintiffs are going to try to short-change the courts, we feel obliged to speak up for the system.

We’ve done it, and we feel much better now.