5th Circuit Holds There is Genuine Issue of Material Fact as to Whether Defendant Properly Mailed Notice; Reverses Summary Judgment

Per Custer v. Murphy Oil USA, Inc. , --- F.3d ----, 2007 WL 2095814 (5th Cir.(La.) Jul 24, 2007) (NO. 06-30672):

Because Murphy attempts to prove that it mailed the notice without providing any direct evidence of mailing, it relies on circumstantial evidence, namely that it sent the December 2002 notice through Murphy's normal internal mailing procedures. See, e.g., Wells Fargo Business Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983) ("Placing letters in the mail may be proved by circumstantial evidence, including customary mailing practices used in the sender's business."); Myer v. Callahan, 974 F.Supp. 578, 584 n. 7 (E.D.Tex.1997) ("Proof of mailing may also be established if the letter was shown to have been sent through a systematic process at the clerk's office or through records at the clerk's office.") (citing Knickerbocker Life Ins. Co. v. Pendleton, 115 U.S. 339, 345-46, 6 S.Ct. 74, 29 L.Ed. 432 (1885); Myers v. Moore-Kile Co., 279 F. 233, 234-36 (5th Cir.1922)). These cases establish only that the fact finder may use the circumstantial evidence to infer that a letter placed in a company's internal mailing system was properly placed in the mail. Such circumstantial evidence may in some cases be sufficient to justify a grant of summary judgment, but not in this case where the plaintiffs have presented more than a mere assertion of non-receipt and the defendants have presented no evidence about the reliability of its internal mailing procedures.

Although the plaintiff ultimately bears the burden of demonstrating that Murphy failed to "use measures reasonably calculated to ensure actual receipt" of the notice, Murphy, as the party moving for summary judgment, bears the burden of demonstrating that there is no genuine issue of material fact. See Harvill v. Westward Commc'ns., L.L.C., 433 F.3d 428, 433 (5th Cir.2005) ("The moving party has the burden of demonstrating that there are no genuine issues of material fact in dispute."). The plaintiffs have alleged they did not receive the notice, and that allegation is supported by the other Meraux shift supervisors' testimony that they could also not recall receiving the notice and that they regularly retain such notices but could not locate the notice in their records. Murphy has produced neither testimony or business records that the notice was sent to individuals at the Meraux plant nor any individual at the Meraux plant claiming to have received the notice. Taken together, this record demonstrates that a reasonable jury may think that, at the very least, Murphy did not distribute the December 2002 notice using methods reasonably calculated to ensure receipt for the Plan participants at the Meraux plant-so there is a genuine issue of material fact as to whether Murphy properly mailed the December 2002 notice to Custer. Therefore, we reverse the district court's grant of summary judgment on this issue.