Proof of Mailing

Evidence of customary procedures of an office for handling mail may be used to prove that a particular item was in fact mailed.{footnote}Shur-Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592 (8th Cir. 1995)(Texas law).

Check 45 ALR4th 476.

See also Wiley v. United States, 20 F.3d 222 (6th Cir. 1994), on remand 1995 WL 863430 (postal form used for mailing which indicates how a document was mailed constitutes highly probative evidence that it was in fact mailed as shown).

But see In re East Coast Brokers and Packers, Inc., 961 F.2d 1543 (11th Cir. 1992)(unsupported conclusory statements and assumptions about handling of mail are insufficient to trigger presumption of mailing).{/footnote}

The "Mailbox Rule": Presumption of Receipt

Evidence that an item was correctly addressed, affixed with the correct postage and mailed creates a rebuttable presumption that it was received by the addressee.{footnote}Doolin v. United States, 918 F.2d 15 (2d Cir. 1990)(government mailing of check); Shur-Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592 (8th Cir. 1995)(Texas law); Anderson v. United States, 966 F.2d 487 (9th Cir. 1992); Konst v. Florida East Coast Ry. Co., 71 F.3d 850 (11th Cir. 1996).

Cal. § 641.

But see Chrysler Motors Corp. v. Schneiderman, 940 F.2d 911, 115 A.L.R.Fed. 883 (3d Cir. 1991)(presumption inapplicable to mailing of bankruptcy proof of claim); Carroll v. C.I.R., 71 F.3d 1228 (6th Cir. 1995), cert. denied, 116 S.Ct. 2547 (presumption inapplicable to taxpaper submitting form to I.R.S. for election of S-corporation status); Godfrey v. United States, 997 F.2d 335 (7th Cir. 1993)(presumption inapplicable to I.R.S. mailing of refund check because no proper proof of mailing).{/footnote}  This presumption may be rebutted by testimony that the mailed item was never received.{footnote}American Cas. Co. of Reading, Penn. v. Nordic Leasing, Inc., 42 F.3d 725 (2d Cir. 1994);  In re Yoder Co., 758 F.2d 1114 (6th Cir. 1985)(bankruptcy notice of bar date allegedly sent to creditor’s attorney); Godfrey v. United States, 997 F.2d 335 (7th Cir. 1993); Shur-Value Stamps, Inc. v. Phillips Petroleum Co., 50 F.3d 592 (8th Cir. 1995)(Texas law);  Konst v. Florida East Coast Ry. Co., 71 F.3d 850 (11th Cir. 1996); Chavis v. Heckler, 577 F. Supp. 201 (D.D.C. 1983)(termination notice regarding SSI benefits).{/footnote}  Where a document has been sent via certified mail, no presumption of receipt exists in the absence of a returned receipt.{footnote}Moya v. United States, 35 F.3d 501 (10th Cir. 1994).{/footnote}

Judicial Notice

Judicial notice may properly be taken as to the operation of the mails,{footnote}Kessler Institute for Rehabilitation v. NLRB, 669 F.2d 138 (3d Cir. 1982); Protein Foundation, Inc. v. Brenner, 260 F. Supp. 519 (D.C. Dist. Col. 1966).{/footnote} and of the fact that the mail is slowed during the year-end holiday time.{footnote}Sinatra v. Heckler, 566 F. Supp. 1354 (E.D.N.Y. 1983).{/footnote}