Mailbox Rule Does Not Apply to UPS

An interesting opinion issued last week from the 2d District in the case Baca v. Trejo. There are several interesting parts of that case that I would like to highlight.

In that case, plaintiff took a default judgment for $18,000 on October 22, 2007. Defendant (through his attorney) mailed a motion to vacate the default judgment on November 21, 2007 (the day before Thanksgiving). For some reason, defense counsel sent the motion via overnight UPS, even though he presumably knew that the circuit clerk was closed on Thanksgiving. The circuit clerk did not receive and file the motion until the following Monday, November 26, 2007.

Plaintiff argued in response that defendant should have filed a 2-1401 petition because no motion to vacate had been filed within 30 days. Defendant argued that the mailbox rule should apply.

I did not know that the mailbox rule applied to posttrial motions, but it does. When a party deposits a posttrial motion in the mail within 30 days of the entry of a judgment, the time of mailing constitutes the time of filing for purposes of the time restrictions imposed by section 2-1203 (Motions after judgment in non-jury cases). A.S. Schulman Electric Co. v. Village of Fox Lake, 115 Ill.App.3d 746, 749 (1983). The court in Baca notes in a footnote that it sees no basis to distinguish between post judgment motions filed under 2-1203 or traditional motions to vacate within 30 days under 2-1301. So, the mailbox rule applies to both of them.

But, the mailbox rule does not apply to private carriers like UPS or FedEx. The court analyzed several different statutes and Supreme Court rules and decided that all references to mailing referred to the U.S. mail, not private carriers. So, defendant's motion to vacate would have been timely had he simply dropped it in the mail, but because his lawyer paid extra to send it overnight UPS, the motion was not timely filed.

It is interesting to note that defendant argued on appeal that the "article tracking" capabilities of private carriers are better than those offered by the U.S. post office, so the court should extend the mailbox rule to private carriers. The court offered a brilliant tip for those who wish to get the benefits of both the mailbox rule and the private carriers' article tracking capabilities: use both!!

"For the price of a copy of the paper and a first-class stamp, he or she may send the original by mail, using the private carrier to send a backup." Huh? It seems unnecessary to me to track a copy of a document, if the original was already deemed filed when you dropped it in the mail. Maybe the court was being sarcastic.