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Fax confirmation creates issue of fact

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The 7th Circuit Court of Appeals addressed for the first time in a ruling today the evidentiary significance of a fax confirmation generated by the sender's machine. The Circuit Court determined the fax confirmation is strong evidence of receipt, so the District Court erred in granting summary judgment in favor of a company in an employment-discrimination case.

In Moncef Laouini v. CLM Freight Lines Inc., No. 08-3721, Moncef Laouini appealed the grant of summary judgment in favor of his former employer CLM Freight Lines. Laouini worked as a truck driver for the company and believed they fired him in June 2006 based on his race and national origin. He filed suit against CLM in August 2007 and said he filed his charge of discrimination with the EEOC on April 12, 2007, which would have been the last day he could file the charge based on the 300-day deadline.

His counsel said he or his assistant faxed the three-page document to the EEOC in Indianapolis and has a printout from the attorney's fax machine showing the document had been successfully transmitted to the number. The EEOC claimed it didn't receive the fax and didn't timestamp the document until April 16 because that's when it received it in the mail.

The District Court granted summary judgment in favor of CLM because although evidence shows something had been faxed to the office on April 12, there's no evidence the fax was actually received or the document was the same one mailed to the EEOC. The District Court also declared that even though this EEOC office allowed faxed filings, any lawyer who did so acted at his or her peril.

Several courts have either explicitly or implicitly drawn on the presumption that evidence of a proper mailing raises a rebuttable presumption of delivery to decide that a fax confirmation generated by the sender's machine similarly creates a rebuttable presumption that the fax was received by the intended recipient, wrote Judge Joel Flaum. Other courts have concluded a fax confirmation at least creates an issue of fact about whether the fax was received.

"Although fax confirmations may not always be conclusive proof of receipt, we believe that in this case - where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt - the fax confirmation creates a factual dispute sufficient to preclude summary judgment," wrote Judge Flaum.

Even though Laouini didn't present evidence at summary judgment establishing that confirmation of a successful transmission necessarily means that the document printed out on the other end, a reasonable factfinder could infer as much. The fax confirmation is strong evidence of receipt and CLM offered no evidence to meet its burden of proving non-receipt, wrote the judge. It's possible the EEOC lost, misplaced, or otherwise failed to timely process the complaint, so summary judgment was inappropriate.

The Circuit Court also noted a potentially problematic issue with this case. The attorney for Laouini swore in an affidavit that the fax consisted of a cover sheet and Laouini's two-page charge. Indiana Rules of Professional Conduct prohibit a lawyer from serving as an advocate at a trial in which he is likely to be a necessary witness, with a few exceptions. Judge Flaum wrote the District Court will need to address whether counsel would be a "necessary" witness at trial and whether any of the exceptions apply.

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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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