                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 04-3388
                                  ___________

American Boat Company, Inc.;            *
Underwriters Insurance Company;         *
Navigators Insurance Company,           *
                                        *
            Plaintiffs - Appellants,    *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Unknown Sunken Barge; Unknown           *
Owner of Unknown Sunken Barge;          *
Unknown Tower of Unknown Sunken *
Barge,                                  *
                                        *
            Defendants,                 *
                                        *
United States of America,               *
                                        *
            Defendant - Appellee.       *
                                   ___________

                           Submitted: April 11, 2005
                               Filed: August 16, 2005
                                ___________

Before MURPHY, BRIGHT, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       The Appellants (“American Boat”) brought this action for negligence and the
district court granted summary judgment. American Boat filed a Motion to Amend
Judgment, or in the Alternative for Reconsideration, and the district court denied the
motion. The time to appeal the denial expired without action by American Boat.
American Boat then moved to reopen the time to file an appeal, claiming it did not
receive notice of the denial. The district court denied the motion, and also denied
American Boat’s two subsequent motions for reconsideration. American Boat now
appeals. We reverse and remand, with instructions.

                               I. Procedure & Facts

       American Boat owns and operates towboats that push barges on the Mississippi
River. On February 15, 2000, a towboat owned and operated by American Boat
allided with a submerged wreck. American Boat brought a claim against the United
States for negligently failing to maintain the navigable channel of the lower
Mississippi River.

       During the proceedings, the district court began operating an electronic case
filing and case management system. Individuals registered through the system to
receive notice of court filings via e-mail. Those who registered were not entitled to
service of a paper copy. Frank J. Dantone, Joel J. Henderson, and Edward D. Lamar
of Henderson Dantone, P.A. of Greenville, Mississippi, served as trial counsel for
American Boat. None had registered with the district court to receive pleadings via
e-mail. Donald Dickerson, of Cape Girardeau, Missouri, served as local counsel for
American Boat. Dickerson and his secretary, Heather Greable, had both registered
with the district court’s electronic mail filing system.

      On September 2, 2003, the district court granted summary judgment to the
United States, finding that the discretionary function exception to the Federal Tort
Claims Act applied and exempted the United States from liability as a matter of law.
American Boat filed a Motion to Amend Judgment, or in the Alternative for
Reconsideration. On November 5, 2003, the district court denied the motion.

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American Boat states that it did not receive notice of this order until Lamar saw the
order on PACER on March 4, 2004. He immediately called District Court Clerk’s
office and requested a copy of the order. The Clerk’s office faxed him a copy of the
November 5, 2003 order, together with the message traffic, which read in part:

      1:01-cv-21 Notice will be electronically mailed to:

      Donald L. Dickerson ddickerson@clas.net, hgreable@clas.net
      Joseph M. Landolt joseph.landolt@usdoj.gov, rebecca.burke@usdoj.gov

It then had a header reading “1:01-cv-21 Notice will not be electronically mailed to:”
and listed the names and mailing addresses of Dantone, Henderson, Lamar and
Michelle Delemarre, lead counsel for the United States.

A.    Motion to Reopen the Time to File an Appeal

      On March 9, 2004 American Boat filed a Motion to Reopen the Time to File
an Appeal of the Court’s Order granting the United States’ Motion for Summary
Judgment (“Motion to Reopen”), arguing that it had not received notice of the district
court’s November 5, 2003 order until March 4, 2004. Attached to the motion were
affidavits of Dickerson and Greable in which they both stated they did not receive the
e-mail notice of the November 5, 2003 order. Also attached were affidavits in which
Dantone, Henderson, and Lamar stated they had not received notice of the November
4, 2003 order until March 4, 2004, when Lamar saw the document on PACER.

       Delemarre did not receive notice through the United States Mail and only
became aware of the entry of the order through communications she had with
Assistant United States Attorney Joseph M. Landolt. Landolt was the only one on the
list of intended adressees who stated he had received notice of the entry of the
November 5, 2003 order via e-mail.


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       On July 1, 2004, the district court denied American Boat’s motion, finding that
it had received timely notice of the entry of the Court’s Order of November 5, 2003,
and that, therefore, it had not complied with prerequisite of Fed. R. App. P. 4(a)(6).

B.    Motion to Reconsider

      On July 14, 2004, American Boat filed a motion to reconsider pursuant to Fed.
R. Civ. P. 59(e). American Boat also argued in the alternative for relief under Fed.
R. Civ. P. 60(b)(6). It also submitted the affidavit of Matthew Wallhausen, a
computer technician, that stated “with near to absolute certainty the November 5,
2003 notice of filing was never received by the computer at the office of Dickerson,
Hill & Lange.”

      On August 12, 2004, the district court denied American Boat’s motion to
reconsider. The district court found that the facts set forth in Wallhausen’s affidavit
did not constitute newly discovered evidence under Rule 59(e). The district court
found further that American Boat had not established that “exceptional
circumstances” existed warranting relief under Rule 60(b)(6).

       During the pendency of the first Motion to Reconsider, Lamar and his legal
assistant, Jennie L. DiBiase, registered with the district court’s e-mail system. They
received registration confirmation e-mails on August 5, 2004. On August 6, 2004,
Lamar received a copy of a pleading in an unrelated case through the e-mail system.
However, he did not receive via e-mail a copy of the district court’s August 12, 2004
order denying American Boat’s Rule 59(e)/60(b)(6) motion.

C.    Second Motion to Reconsider

      On August 25, 2004, American Boat again moved the district court to
reconsider its August 12, 2004 order. American Boat argued that the district court’s

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electronic mail system failed to send notice of the August 12, 2004 order to Lamar.
American Boat argued that this failure was additional evidence that the district court
should reconsider. Attached to the motion was an Affidavit of Staten Trippe, network
operations director of TecInfo, Inc., an internet service provider, opining that
Henderson Dantone, P.A. e-mail system did not receive a message addressed to
Lamar from the district court’s e-mail system from August 12 through August 13,
2004.

      On September 8, 2004, the district court denied American Boat’s second
motion for reconsideration. American Boat now appeals the district court’s denial of
its Motion to Reopen Time to File an Appeal as well as the district court’s August 12,
2004 and September 8, 2004 orders.

                                    II. Analysis

A.    Standard of Review

       We review the district court’s denial of American Boat’s Motion to Reopen for
an abuse of discretion. See Scott-Harris v. City of Fall River, 134 F.3d 427, 433 (1st
Cir. 1997); Nunley v. City of Los Angeles, 52 F.3d 792, 794 (9th Cir. 1995); Ogden
v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994); Jones v. W.J. Services, Inc.,
970 F.2d 36, 39 (5th Cir. 1992). We review the district court’s factual determination
that American Boat received notice for clear error. See Nunley, 52 F.3d at 797.

B.    Discussion

       As a general rule, in cases where the United States is a party, parties have 60
days from the date of judgment to file a notice of appeal. Fed. R. App. P. 4(a)(1)(B).
However, certain exceptions to this time limit exist:



                                         -5-
      The district court may reopen the time to file an appeal for a period of
      14 days after the date when its order to reopen is entered, but only if all
      the following conditions are satisfied:
         (A) the motion is filed within 180 days after the judgment or order is
      entered or within 7 days after the moving party receives notice of the
      entry, whichever is earlier;
         (B) the court finds that the moving party was entitled to notice of the
      entry of the judgment or order sought to be appealed but did not receive
      the notice from the district court or any party within 21 days after entry;
      and
         (C) the court finds that no party would be prejudiced.

Fed. R. App. P. 4(a)(6). The court has discretion to reopen the time to file an appeal
only if all three conditions are satisfied. Zimmer St. Louis, Inc. v. Zimmer Co., 32
F.3d 357, 361 (8th Cir. 1994). Below, the district court found that American Boat
had in fact received notice of the November 5 order, and thus did not satisfy all three
conditions of Rule 4(a)(6).

       The district court reasoned that a presumption of delivery of the e-mails should
apply. It held that the clerk’s docket entries are presumed correct in the absence of
reliable evidence to the contrary, citing Arnold v. Wood, 238 F.3d 992, 995-96 (8th
Cir. 2001). It further held that the district court clerk’s Electronic Case Filing entries
in this case constituted the official clerk’s docket entries. If these entries indicated
that an e-mail was sent and not returned as undeliverable, then receipt of that e-mail
would be presumed. Since no e-mails were returned in this case, the district court
presumed that they had been received by American Boat. The district court also
noted that Assistant United States Attorney Landolt had confirmed receipt of his e-
mail.

       The district court then considered American Boat’s evidence of non-delivery.
It stated that American Boat had submitted: (1) the affidavits of three attorneys
stating that they had neither received notice via U.S. Mail nor e-mail, (2) an affidavit

                                           -6-
of Greable, stating that she had not received notice (3) a printout of Geable’s Inbox,
which showed she had received 13 other e-mail notifications from the district court
between October 31, 2003 and November 21, 2003, but did not show the e-mail
notification at issue. The district court assessed this evidence and concluded that
American Boat failed to overcome the presumption that the docket accurately
reflected delivery of the November 5, 2003 e-mail notification.

       We agree with the district court that a presumption of delivery should apply to
e-mails. “A jury is permitted to infer that information sent via a reliable means—such
as the postal service or a telegram—was received.” Kennell v. Gates, 215 F.3d 825,
829 (8th Cir. 2000). We have held that there is “no principled reason why a jury
would not be able to make the same inference regarding other forms of
communication—such as facsimiles, electronic mail, and in-house computer message
systems—provided they are accepted as generally reliable and that the particular
message was properly dispatched.” Id. However, in this case, we conclude that the
appellants have made a sufficient showing to at least be entitled to an evidentiary
hearing on the issue of whether they have adequately rebutted the presumption.

       In making this determination, we note several factors. First, the system had
only been in operation for a few weeks. We have no doubt that the district clerk’s
office had thoroughly tested the system. However, any new computer system is
subject to a certain number of “glitches.” Secondly, the fact that the system was not
operating as intended is evidenced by the fact that it appears undisputed that none of
the attorneys who were to receive paper notice received a copy of the court’s order.
Finally, the government’s co-counsel in Washington indicated that she had no record
of having received e-mail notification, although, she had also registered to receive
notification in that format. Although the district court was correct that the affidavit
of the computer technician, filed as a part of the motion for reconsideration, should
have been filed sooner, it does lend further support to our concerns about whether
notice was actually sent and received.

                                         -7-
        “[A]s a practical matter it is never easy to prove a negative” Elkins v. United
States, 364 U.S. 206, 218 (1960). In cases involving lack of notice, there is often
little a party can do except swear he or she did not receive the communication. Here,
where several intended recipients, most of whom are officers of the court, all said
they did not receive notice, there is enough evidence to warrant an evidentiary
hearing on the rebuttal of the presumption of delivery and receipt.

                                  III. Conclusion

       For the above reasons, we reverse the judgment of the district court and remand
for an evidentiary hearing to determine whether American Boat should be permitted
to reopen the time to file an appeal.
                        ______________________________




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