Has Modern Technology Trumped The Presumption Under The "Mailbox Rule"?
LGC Staff
Wed February 18, 2015
4:27 AM UTC
Karissa K. Mack

By Karissa K. Mack

As law students we learned early on about the “presumption of receipt” associated with the “mailbox rule.” The presumption of receipt derives from the long-standing common law “mailbox rule” that if a letter or document is properly addressed and delivered to the post office or postman via a mailbox, it is presumed to have been received by the person whom it was addressed. Rosenthal v. Walker, 111 U.S. 185, 193, 4 S. Ct. 382, 28 L. Ed. 395 (1884).

Should an issue arise under this presumption, often times, it became a game of "he said, she said." If the recipient demonstrated that he/she had not received the letter (normally testimony alone being sufficient), courts found that the sender could provide, in the absence of actual proof of delivery, circumstantial proof by introducing evidence of business practices or office customs pertaining to mail. United States v. Hannigan, 27 F.3d 890, 893 (3d Cir.1994). This evidence could likewise be in the form of a sworn statement. Custer v. Murphy Oil USA  Inc., 503 F.3d 415, 420 (5th Cir.2007) ("a sworn statement is credible evidence of mailing for the purposes of the mailbox rule.").

However, nowadays, with all the technology and tracking capabilities, it appears many courts are diverting from this common law presumption, and further, not accepting circumstantial proof such as affidavits to support that a document was sent. This is being seen most frequently in cases arising out of claims by employees who have taken leave pursuant to the Family and Medical Leave Act (“FMLA”) and claim that proper documentation under the FMLA were not provided to them by the employer.

Illustrative of this is the case Lupyan v. Corinthian College, 761 F. 3d 314 (3rd Cir. 2014). In that case, after the plaintiff employee, an instructor at Corinthian College, went on leave for depression, her employer mailed her the appropriate notices, as required under the FMLA, and designating plaintiff’s absence as qualifying under FMLA. Id. at 316-317.  The employee denied ever receiving notice. Id. Following her return to work, 14 weeks after taking leave, plaintiff was advised that she was being terminated due to low student enrollment and because she had not returned to work within the 12 weeks allotted for FMLA leave. Id. at 317. Plaintiff filed a suit alleging she had not been provided proper notice and that Corinthian College had therefore interfered with her rights under the FMLA. Id.

As the notices had been sent via regular mail service, Corinthian College argued that the mailbox rule should be applied and even provided affidavits introducing evidence of the college’s business practices and office customs pertaining to mail. Id. at 320.  However, the court found that the college provided no corroborating evidence that plaintiff had received the notice. Id. The notice was not sent by registered or certified mail, nor did the college request a return receipt or use any of the now common ways of assigning a tracking number to the notice. Id. There simply was no direct evidence of either receipt or non-receipt by plaintiff. Id. The only evidence submitted by the college consisted of the “self-serving” affidavits signed nearly four years after the alleged mailing date, which while triggering the presumption of receipt that arises under the mailbox rule, provided in the court’s eyes a very weak presumption. Id. Therefore, the court found that given plaintiff’s denial, and the ease with which a letter could be certified, tracked, or proof of receipt obtained, the weak rebuttable presumption offered by the college, while maybe sufficient in the past, was not sufficient to establish receipt as a matter of law. Id. The court noted that “[i]n this age of computerized communications and hand-held devices, it is certainly not expecting too much to require businesses that wish to avoid a material dispute about the receipt of a letter to use some form of mailing that includes verifiable receipt when mailing something as important as a legally mandated notice.” Id. at 322.

So what should business owners take away from this? Everything that is sent out that is of any kind of importance—notices, letters, etc.—should always be sent via certified mail or with a tracking number, because if the other jurisdictions follow suit, the mailbox rule is a thing of the past.  As a result, if a case turns on the old ‘he said/she said’ argument, the ‘he’ is always going to win the presumption over the presumption of the mailbox rule.

News & insights
Stay in the loop
Sign up to receive important legal developments from LGC
LinkedIn logo
Connect with us
LinkedIn logo