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Trial Briefs
The newsletter of the ISBA’s Section on Civil Practice & Procedure

March 2010, vol. 55, no. 7

Supreme Court Rule update: “You’ve got mail”

The U.S. Postal Service has apparently lost business since the days it was touted as an efficient, successful, authoritative branch of government in Miracle on 34th Street. The Illinois Supreme Court has now amended Supreme Court Rules 11, 12, 361, 267, 373, 381 and 383 in recognition of the popularity and efficiency of third-party commercial carriers. Attorneys will no longer run afoul of the rules by accidentally using a commercial carrier over the Postal Service when filing documents with courts or applying the mailbox rule to deadlines. In addition to enlarging the services counsel can use, the Supreme Court also has improved the gender neutrality of the language in the Rules.

According to Supreme Court Rule 11, entitled “Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts,” the big change is the allowance of delivery by commercial carriers. It states that papers are served…:

(4) by delivering them to a third-party commercial carrier--including deposit in the carrier’s pick-up box or drop off with the carrier’s designated contractor—enclosed in a package, plainly addressed to the attorney’s business address, or to the party at the party’s business address or residence, with the delivery charge fully prepaid;

The changes in the Rule also convert the outdated use of “his” clerk or “his” residence to the attorney’s clerk or the party’s residence.

In the remaining rules, such as Rule 12 that deals with proof of service, the change is reflected by adding the option after the word mail to add “or by delivery to a third-party commercial carrier.” Perhaps a further reflection on the efficiency of the Postal Service, the effective date of service by mail is four days after mailing but is the third business day after delivery of the package to any third-party carrier. (Supreme Court Rule 12 (d)).

Rule 361 also now allows motions in the reviewing courts to be transmitted by third-party commercial carrier. There is no distinction between the times a response to a motion must be filed. The response is due within 10 days after a motion was sent by regular mail or “10 days after delivery to a third-party commercial carrier if service is by delivery to a third-party commercial carrier…” (Supreme Court Rule 361(b) (2).

According to Rule 367, petitions for rehearing may be delivered by third-party commercial carrier now or counsel may continue to use first class mail. Rule 373 still maintains that the time of filings in the reviewing courts is the date the documents are actually received unless they time is after the due date. If the documents are late, then the clerk uses the time of mailing with the Postal Service or the time of delivery to a third-party commercial carrier for delivery to the clerk within three business days. Counsel must provide a proof of mailing or proof of delivery to the third party commercial carrier.

Actions filed in the Supreme Court as original actions (Rule 381) or motions for supervisory orders (Rule 383) may also be transmitted via third-party commercial carrier instead of regular mail. Either method of transmittal gives 14 days after regular mail or after delivery to a third-party commercial carrier for opposing parties to respond.

Thanks to the Supreme Court’s amended rules, attorney will not suffer an adverse outcome for failure to use the US mail as occurred Baca v. Trejo, 388 Ill.App.3d 193, 327 Ill.Dec. 722 (2d dist. 2009). There, defendant filed a motion to vacate more than 30 days after entry of a default judgment. Defendant tried arguing that he sent the document via UPS and that giving it to UPS was the same as having it delivered by the U.S. Postal Service. The Court stated: “Although we agree that the motion would have been timely had defendant consigned it to the United States mail on the thirtieth day after the judgment, such a mailbox rule does not apply to consignment of a motion to a private carrier.” 388 Ill.App.3d 195. The court ruled the motion was untimely.

With these amendments, the Supreme Court now allows parties and counsel to choose the U.S. Postal Service, FedEx, UPS, or any other third-party commercial carrier. These amendments may be considered to reflect the miracle of modern delivery services and technology. The new Supreme Court rules do not go so far as allowing delivery via magic sleighs and flying reindeer, however. Counsel may choose to believe in that method for delivery of toys and other parcels; just avoid sending legal documents to other attorneys or courts with Kris Kringle unless he becomes licensed as a third-party commercial carrier! ■