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Date upon certificate of service does not coincide with postal date of mailing

Asked over 2 years ago - Scottsdale, AZ

Lawsuits

I was served with a motion where the opposing party certified upon the certificate of service the document was mailed to me on July 30th. The U.S. Postal date of mailing reflects August 4th. Is this a violation of the Rules of Civil Procedure and do I file a motion to strike? If not, what document should I file given the fact any response I make will be considered untimely.

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Attorney answers (2)

E. Brian Davis

Reputation Level 14

Answered over 2 years ago. Litigation Lawyer in Louisville, KY.

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The situation could be handled in several ways. Assuming your relationship with the opposing party or his counsel is civil, you could ask that counsel agree that your response could be filed by whatever day it should be due based on the day of your receipt. An agreed Order would accomplish that.

If the relationship is more contentious, you could simply set forth the facts in the response (X was certified as having been served on 7/30; X actually bore a postmark date of 8/4; while it might appear that response would be due on 8/? if you assume service on 7/30, in fact it is due on 8/?+4 because of postmark.

This could be done with or without a motion to accept late filing (or to extend time to respond).

This is all from a generalized view of civil procedure. I am not admitted to practice in Arizona and you should consult an Arizona lawyer for definitive answers, particularly in cases, such as this, where local custom may play an important role in how you should handle the situation.

E. Brian Davis

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Carrie A Kercsmar

Reputation Level 7

Answered almost 2 years ago. Litigation Lawyer in Scottsdale, AZ.

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According to the Arizona Rules of Civil Procedure, Rule 5(d)(2)(C), service of pleadings and other papers is complete upon mailing. Thus, August 4th would be the service date by which you would calculate your response due date. A motion to strike or other pleading would likely be more of a waste of time and money to file. And, hopefully it was an accident by the opposing party. If I were in this situation, I would file a notice with the Court and properly serve the opposing party stating that a response will be filed based upon the August 4th date as allowed by the Arizona Rules of Civil Procedure, Rule 5(d)(2)(C). That way everyone will know of your intentions to respond and you will not be penalized by a ruling that may come prematurely since the Court may not know of your actual service date.

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