Metropolitan News-Enterprise


Monday, June 3, 2019


Page 1


Ninth Circuit:

Summons, Complaint Not ‘Delivered’ by Email Telling of Filing, With Link to Documents

Ruling Comes in Case Where Plaintiff Who Sued Postal Service Rather Than Government Asserted That Pleading Naming Correct Party Related Back to Original Filing


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed the dismissal with prejudice of a woman’s action based on slip-and-fall injuries incurred at a Postal Service office, holding that a court-generated notice of electronic filing sent to the U.S. Attorney’s Office, with a link to the summons and complaint, did not constitute “delivery” of the documents within contemplation of the relevant rule.

A three-judge panel on Thursday rejected the appellant’s contention that the “advent of new technology—the court’s new electronic filing system,” calls for a fresh interpretation of a longstanding requirement which came into play in the case.

Appellant Wendy Hastings brought suit within the six-month limitations period following rejection of her tort claim, but mistakenly sued the Postal Service rather than the U.S. Government. The issue before the Ninth Circuit was whether her second amended complaint naming the government as a defendant, filed after the limitations period expired, related back to the filing of her initial complaint.

Relation-Back Doctrine

The parties agreed that the relation-back doctrine would apply if there was compliance with Federal Rules of Civil Procedure, rule 15(c)(2) which requires that “process was delivered or mailed to the United States attorney or the United States attorney’s designee, to the Attorney General of the United States, or to the officer or agency” within the limitations period.

Hastings argued that the notice of electronic filing (“NEF”) satisfied that requirement.

District Court Judge Jeffrey T. Miller of the Southern District of California disagreed, terminating the action on Oct. 2, 2017. He reasoned:

“Plaintiff makes no allegation that the United States Attorney’s Office received process by delivery or mail. She relies solely on the NEF. An NEF does not constitute delivery or mailing of process as contemplated in Rule 15(c)(2).”

Ruling Telegraphed

The affirmance by the Ninth Circuit on Thursday, in a memorandum opinion, was signaled by the judges—Ninth Circuit members Andrew Hurwitz and Kim Wardlaw, along with First Circuit Judge Kermit V. Lipez, sitting by designation—at oral argument in Pasadena on May 14.

Hurwitz did most of the talking, as he customarily does.

He expressed the view that an emailed advisement that the summons and complaint exist does not constitute a “delivery” of them. Posing a question to Hastings’s lawyer, John Stanton Addams of the San Diego firm of Niddrie Addams Fuller Singh LLP, Hurwitz said:

“I get an email that says, ‘You can find this if you like to and here’s how to do it.’ Is that delivery?”

Addams argued that the rule harks to the days before email, and twice termed an email as a “virtual envelope.”

Definition of ‘Mail’

Valerie E. Torres, of the U.S. Attorney’s Office for the Southern District of California, took the position that under a 1966 decision, “mail means U.S. mail,” ruling out the prospect that email would suffice.

Hurwitz asked:

“Well, do you have to convince us of that to win in this case? You didn’t really get the summons and complaint—all you got was a link to where the summons and complaint can be found.

“Do we really have to find that ‘mail’ doesn’t encompass email?”

Torres responded:

“Your honor is correct.”

The judge remarked at another point:

“Wouldn’t we all understand that ‘mail’ is the same as email? It’s email.

“It’s not e-something else.”

Hurwitz alluded to the Tenth Circuit’s 1991 unpublished decision in Herman v. Utah National Guard in which it was held that service by fax sufficed. He commented:

“The Tenth Circuit says that’s delivery. I’m not sure they’re wrong.”

Ninth Circuit Opinion

Thursday’s memorandum opinion declares:

“The plain language of the government notice provision required Hastings to deliver or mail her original summons and complaint to one of the enumerated U.S. entities before the six-month limitations period expired. However, it is undisputed that the U.S. Attorney received only court-generated electronic notices that Hastings filed her original summons and complaint within the limitations period. The electronic notices did not contain or attach Hastings’s original summons or complaint. Rather, the U.S. Attorney could access the original summons or complaint only by clicking on a link in the notice and visiting the court website to view the document. Because the electronic notices to the U.S. Attorney did not deliver, mail, or even attach Hastings’s original summons and complaint, the district court correctly concluded that the relation back doctrine does not apply.”

The case is Hastings v. USPS, 17-56643.


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