Tavitas, J.
Case Summary
Chris E. Harkins (“Harkins”), pro se, appeals the trial court’s grant of summary judgment in favor of Shannon Westmeyer, Jon Niklas, Angie Harkins (“Angie”), and Janet Harkins (“Janet”). We affirm.
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Harkins argues that the trial court erred in failing to apply the prison mailbox rule and in striking Harkins’ response materials as untimely filed.
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The prison mailbox rule provides that “a pro se incarcerated litigant who delivers a [document] to prison officials for mailing on or before its due date accomplishes a timely filing”; and the document is deemed “filed” on the date of submission to prison officials. Id. at 607. A pro se prisoner must provide “reasonable, legitimate, and verifiable documentation supporting a claim that a document was timely submitted to prison officials for mailing.” Id. at 608. “Where a prisoner’s proof is lacking, however, the opposite result obtains.” Id.
Here, Harkins argues that he “handed his legal mail to the facility personnel on September 6, 2016 for mailing to the court and the parties to the action.”…
Notably, Ms. Rhodes’ letter is not a sworn affidavit submitted under penalty of perjury; however, we will give Harkins the benefit of the doubt here and find that “the evidence taken as a whole create[s] a presumption that Harkins functionally filed his documents” on September 6, 2016…
Next, Harkins argues that his September 6, 2016 filing, which was due to the trial court on September 1, 2016, was timely because (1) Harkins received by mail the trial court’s order granting Harkins a forty-five-day extension of time to respond to Westmeyer; and (2) pursuant to Indiana Trial Rule 6(E), Harkins was, therefore, entitled to an automatic three-day extension. Specifically, Harkins argues that, applying the Rule 6(E) three-day extension to the September 1, 2016 deadline, Harkins’ responsive deadline was Sunday, September 4, 2016; the following day, September 5, 2016, was the Labor Day holiday; and, therefore, Harkins’ response materials were timely filed on September 6, 2016. See Trial Rule 6(A). We cannot agree.
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Our supreme court’s unequivocal answer to this question is that not all court orders receive the benefit of the Rule 6(E) automatic three-day extension…
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In each of the examples cited by the McDillon court in which Rule 6(E) was used to extend the deadline for certain filings, the deadline was triggered by service or notice—not, as here, “from the date of [an] order” by the trial court. This small difference in language is important. For example, McDillon cites Baker v. Sihsmann, 315 N.E.2d 386, 387 (Ind. Ct. App. 1974), to demonstrate allowance of the three-day extension when the response period began “the day after receipt of the summons.” McDillon, 841 N.E.2d at 1151 (emphasis added). McDillon also cites Yaksich v. Gastevich, 440 N.E.2d 1138, 1139 n.2 (Ind. Ct. App. 1982) as an example, which allowed the three-day extension when the period was triggered “after notice of the order.” McDillon, 841 N.E.2d at 1152 (emphasis added). These examples are consistent with the McDillon court’s conclusion that Rule 6(E) applies when the deadline to respond is triggered by service or notice to a party and not, as here, when the deadline is triggered by the date of an order.
Stated differently, there are essentially two requirements for the three-day extension to apply. First, the time period for a filing must be triggered by service of a paper. Second, service to the individual must be completed by mail. In this case, while Harkins was in fact served by mail, the first requirement is not met. The order granting Harkins’ motion for extension of time granted Harkins “an extension of 45 days from the date of this order to respond to Defendant Shannon Westmeyer’s Motion for Summary Judgment.” [Footnote omitted.] Appellant’s App. p. 27 (emphasis added). Harkins’ forty-five-day extension period was not a prescribed period after service but, rather, was a period that was merely “triggered by” the entry of the trial court’s order extending Harkins’ time to respond to Westmeyer. See McDillon, 841 N.E.2d at 1152.
Guided by McDillon’s explicit holding, we conclude that the forty-five-day enlargement period does not receive the benefit of Rule 6(E) because the period was merely triggered by the trial court’s entry of the enlargement order. A finding otherwise would afford all court orders the benefit of Rule 6(E), which would contravene the McDillon court’s explicit holding that Rule 6(E) properly applies only to extend the commencement of deadlines that are triggered by service.
For these reasons, we find that the automatic three-day extension pursuant to Rule 6(E) does not apply to extend Harkins’ deadline from September 1, 2016. The trial court, therefore, did not err in deeming Harkins’ September 6, 2016 response materials to be untimely filed and ordering Harkins’ response materials stricken.
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Affirmed.
Brown, J., and Altice, J., concur.