8th Cir.: Plaintiff Failed to Rebut Presumption of Delivery of ECF Notice

The Eighth Circuit revisited a case which revolves around whether the attorney in a case received notice of an order via the court's electronic filing (ECF) system.  (American Boat Company, Inc. v. United States, 2009 U.S. App. LEXIS 11961 (June 4, 2009).)

The basic facts were that plaintiff lost a motion for reconsideration.  Plaintiff wished to appeal, but failed to file the notice of appeal within 30 days of the reconsideration order.  Four months later, plaintiff filed a motion to reopen the time to file an appeal (which typically runs 30 days).  The district court denied the motion, and the Eight Circuit initially reversed and remanded, finding that an evidentiary hearing was appropriate on the issue of whether plaintiff actually received notice of the original reconsideration order (which would start the clock).  Following the appeal the district court held an evidentiary hearing and again denied plaintiff's request.  (Previous post on this case, covering the district court ruling: here.) The second appeal to the Eighth Circuit (which resulted in this ruling) followed. The Eighth Circuit affirmed the district court's denial of plaintiff's request: plaintiff is out of luck and cannot pursue the appeal.

This case is not particularly earthshattering except it shows the importance of making sure you receive all emails from the courts (particularly the federal courts which use ECF and tend to not send out any paper notices).  In other words, make sure your email works and doesn't block or lose emails from courts.  Here, there was testimony that one of the lawyers in the case "did not have his own computer" and his assistant "was responsible for checking [his email account."  Yikes.  I imagine there are still lawyers out there who don't use computers, but it's getting to the point where so much important activity occurs via email that it must take a giant leap of faith to not check your own email. 

The Eighth Circuit ends up affirming the district court's conclusion.  There's a presumption of receipt (as with the mails) that applies to emails sent by the court's cm/ecf system and the plaintiff failed to provide sufficient evidence to overcome this.

Note:  this is a great case to read to get a clue into how arguments around non-receipt of emails pan out, and what sort of evidence you should put forth (and what your expert should end up saying) if you are on either side of this argument.  I imagine this must come up often in contract or other cases where notice becomes an issue.  While there is a presumption of receipt that applies to a properly addressed email (Kennell v. Gates, 215 F.3d 825, 829 (8th Cir. 2000)) this can be overcome. 
 
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