Opinion
Civil Action No. 06-cv-00282-EWN-CBS.
September 11, 2006
ORDER
This civil action comes before the court on "Plaintiff's Motion to Compel Service of Pleadings Filed by State Defendants" (filed September 7, 2006) (doc. # 86). Howard alleges that he was not served with a copy of Defendants' "Reply in Support of Motion for Summary Judgment and to Dismiss" (doc. # 84). Pursuant to the General Order of Reference dated March 13, 2006 (doc. # 10) and the memorandum dated September 7, 2006 (doc. # 87), this Motion was referred to the Magistrate Judge. The court has reviewed the Motion, the entire case file, and the applicable law and is sufficiently advised in the premises.
Service of notice is completed by "[m]ailing a copy to the last known address of the person served." Fed.R.Civ.P. 5(b)(2)(B). "Service by mail is complete upon mailing." Id. "The validity of service is not affected by whether notice was actually received by the party." United States v. Laws, 352 F. Supp. 2d 707, 714 (E.D. Va. 2004) (citation omitted). See also In re Eagle Bus. Mfg. Inc., 62 F.3d 730, 735 (5th Cir. 1995) (stating that a court should look to whether a proper certificate of service was filed to determine whether mailing took place). "A valid certificate of service creates a presumption that the notice was actually mailed." Laws, 352 F. Supp. 2d at 714.
The Certificate of Service filed on August 18, 2006 states that Defendants' Reply was served "upon all parties herein by E-Filing and/or depositing same in the United States mail, first-class postage prepaid" to Howard at his current address: Scott L. Howard, CDOC No. 123501, at Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, Colorado 81034-1000. "A presumption that the information actually was mailed attaches to this valid certificate of service." See Fed.R.Civ.P. 5(d), Advisory Committee Notes, 1991 amendment (stating that certificates of service are required to be on file because they "may be useful for many purposes, including proof of service if an issue arises concerning the effectiveness of the service"). The record reflects that Howard has received numerous other filings from Defendants at the same address. Howard has provided no evidence to rebut the presumption that a copy of Defendant's Reply was actually mailed.
Accordingly, "Plaintiff's Motion to Compel Service of Pleadings Filed by State Defendants" (filed September 7, 2006) (doc. # 86) is DENIED.