Ouch. The case of Webster v. Walgreen (pdf) is a tough one. The plaintiff alleged that she was injured when she slipped and fell at a Walgreens due to the store’s negligence. The fall took place on December 17, 2008. On December 10, 2010, the plaintiff’s lawyer put the complaint in the mail to the Clerk of the trial court. Typically you have two years to file a complaint and typically a complaint is deemed filed when you deposit it in the mail.
Trouble is that the scale of the plaintiff’s attorney apparently wasn’t calibrated the same as the scale of the U.S. Post Office. The Complaint was mailed with $6.83 postage. The U.S. Postal Service said that $7.00 was required. The Clerk of the trial court declined to pay the additional postage, and the Complaint was returned to the attorney on December 21, 2010 – 4 days after the statute of limitations ran, barring the suit.
The Court of Appeals affirmed the dismissal, holding that a document has not been “mailed” unless it is deposited in the mail with sufficient postage.
There are a couple of practice pointers here – 1) unless matters are out of your control (e.g. Client comes to you at the last minute), you don’t cut things that close to the statute of limitations; 2) if you don’t have confirmation of filing before the statute, get confirmation from the court prior to it running. At least then, if necessary, you can drive to the court house or otherwise take more extraordinary measures to ensure timely filing.
Still, ouch. I feel kind of sick for that attorney.
I rarely for that and other reasons ever try to file a complaint by mail. Every county has its quirks and I want to be there to deal with them. And I certainly wouldn’t mail the complaint if I was up against the statute of limitations. There are other reasons not to wait until the last minute on a personal injury case. Often it’s difficult to tell what the actual business entity is that you have to sue.
Could have been worse. Just a slip and fall case, which are generally very hard to prove anyway. Imagine if this was from a wrongful death case. This kind of case is the best example of why a great legal secretary is worth the investment.
My thoughts:
(1) This is why you use expedited mail.
(2) Can you imagine the attorney’s face when he/she got it back in the mail?
(3) I feel bad for the attorney, but if it was a good case, I feel worse for the plaintiff.
Since I am not super organized in all respects I overpay postage if I have the slightest doubt as to the amount. I am sure the P.O. have made money off me by this practice. I have been known to call on important matters and try to confirm whatever needed to be done. In this case one wonders if the attorney just got the case or procrastinated.
The Post Office is inconsistent. When the envelope was rejected by the Court Clerk (Dec. 14) it then took 7 days to arrive at the attorney’s
office (Dec. 21). It then was re-sent (Dec. 21) with more postage and
it took only 1 day to get back to the Court Clerk (Dec. 22).
If it had arrived back to the attorney’s office on Dec. 15/ 16, it still could have been re-filed on time had the attorney been on his toes.
Bankruptcy cases are filed 24-7 thanks to electronic filing
and credit cards.
Since this was the attorney’s fault would this be grounds for his client to file a malpractice claim against the attorney?
Yes.
And if the attorney had “mistakenly” hand walked the case to the
Clerk’s office in the attorney’s own county and “inadvertently”
filed it there on Dec. 10, it likely would have survived.
Practice not – suck up to all clerks – bring donuts, know their grandkid’s names – the life you save may be your own.
Filing a week early is not ideal, but it’s far enough ahead that the attorney probably presumed that he had enough time to deal with any problems. While I think using a guaranteed delivery service such as FedEx makes the most sense so close to the SOL date, subjectively I would expect to receive a mailing with insufficient postage back more promptly than it was received.
Knowledge is Power: there’s no “likely” about it. A case may be venued in any county, unless the defendant seeks to have the case transferred to a county of preferred venue.