8th Circuit Reopens Appeal After E-Filing Notice Snafu

An 8th Circuit panel has reopened an appeal based on evidence of a technological foul-up with the then-new electronic filing system for the U.S. District Court for the Eastern District of Missouri.

Several lawyers who signed up to receive court notices via e-mail have said they never received them, while other attorneys in the case who did not register for e-mail notification never got the traditional paper notices they should have received, the panel said.

The ruling came in a suit filed by American Boat Co. Inc. against the United States in which the Eastern District of Missouri ruled in favor of the federal government. American Boat, which operates towboats on the Mississippi River, alleged one of its towboats collided with a submerged wreck in the lower Mississippi River, and claimed the government was negligent in failing to maintain the waterway in a navigable condition.

The District Court granted summary judgment to the government Sept. 2, 2003, and denied American Boat's motion for reconsideration Nov. 5, 2003. The Nov. 5 order started the clock ticking on American Boat's 60-day appeal period.

While American Boat's case was pending, the 8th Circuit explained, the District Court began operating an electronic filing system under which attorneys could file pleadings and receive notices from the court via e-mail. Attorneys who signed up for e-mail notification would not receive printed copies of court orders by regular mail.

According to the opinion, American Boat's local counsel, Donald Dickerson of Cape Girardeau, Mo., and his secretary signed up to receive e-mail notification, as did the government's attorneys, Joseph M. Landolt and Michelle Delemarre. American Boat's trial attorneys, Frank J. Dantone, Joel J. Henderson and Edward D. Lamar of Henderson Dantone P.A. in Greenville, Miss., did not register for e-mail notification.

Lamar said he did not become aware of the Nov. 5, 2003, order until he saw it on the District Court's PACER site March 4, 2004. By that point, the time limit for American Boat to appeal had expired. The company twice asked the District Court to reopen the appeal but was rebuffed both times.

American Boat then took its case to the 8th Circuit, arguing that under the circumstances it should be allowed to file a late appeal.

The 8th Circuit panel, in an opinion by Circuit Judge Michael J. Melloy, agreed with the District Court's holding that courts should presume an e-mail was received if - as was the case here - there was no return message saying the e-mail was not delivered.

But the panel said American Boat presented sufficient evidence to at least merit a hearing on whether it has rebutted that presumption. The panel remanded the case to the District Court to conduct the hearing.

The panel noted that, of the attorneys who signed up for e-mail notification, only Landolt, the government's counsel, said he received correct notification of the Nov. 5 order. Meanwhile, the panel noted, the Henderson and Dantone - who had not registered for e-mail notifications - never received paper notices as they should have.

As of the Nov. 5 order, the e-filing system had only been operating for a few weeks, the panel observed.

"We have no doubt that the district clerk's office had thoroughly tested the system," the panel said. "However, any new computer system is subject to a certain number of 'glitches.'"

Circuit Judges Myron H. Bright and Diana E. Murphy joined in Circuit Judge Melloy's opinion.

Courtesy of Andrews Publications.

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American Boat Co. Inc. et al. v. Unknown Sunken Barge et al., No. 04-3388 (8th Cir. Aug. 16, 2005).