Summary
The Louisiana Court of Appeal, Third Circuit, reversed a trial court judgment annulling a prior dismissal for abandonment under Louisiana Code of Civil Procedure article 561. The court held that an unserved and procedurally defective motion to fix the matter for trial, filed before all parties had answered, was not a step in the prosecution of the action. It further held that the plaintiff’s failure to timely seek relief under article 561 barred use of the extraordinary annulment remedy under article 2004.
Topics
Practice areas
Questions Presented
- Whether an unserved and procedurally defective motion to fix a case for trial, filed before all issues were joined and contrary to local court rules, constituted a step in the prosecution sufficient to prevent abandonment under Louisiana Code of Civil Procedure article 561.
- Whether annulment under Louisiana Code of Civil Procedure article 2004 was available when the plaintiff had been served with the abandonment dismissal and could have timely moved to set it aside or appealed.
- Whether the trial court erred by annulling the prior abandonment dismissal.
Holdings
- A motion to fix a matter for trial does not constitute a step in the prosecution when it violates the applicable district-court rule because a named defendant has not answered and all issues have not been joined. Such a procedurally unauthorized and vain act cannot interrupt abandonment under article 561.
- Article 2004 annulment is not an alternative to the timely remedies provided by article 561. When a plaintiff was served with an abandonment dismissal and was not deprived of the opportunity to timely move to set it aside or appeal, the extraordinary remedy of annulment for fraud or ill practices is unavailable.
Key quotations
“The jurisprudence has uniformly held that La. C. Civ. Pro. art. 561 is to be liberally construed in favor of maintaining a plaintiff’s suit.” (5)
“A vain and useless act, such as moving for a trial fixing before all issues have been joined, cannot constitute a “formal action before the court intended to hasten the matter to judgment.”” (8)
“One does not have an option, when served with a dismissal pursuant to La.Code Civ.P. art. 561, between moving to set the judgment aside or seeking its annulment under La.Code Civ.P. art. 2004.” (10)
Factual background
Blandon Richard and Amanda Hebert sued Ruth Hebert and Repwest Insurance Company over injuries allegedly sustained when a U-Haul van swerved to avoid an animal and entered a ditch. After Amanda's claims were dismissed for failure to comply with discovery obligations, Richard took no qualifying prosecutorial action for several years, although he filed motions seeking a trial date in 2022 and 2023. U-Haul obtained an ex parte dismissal under Louisiana Code of Civil Procedure article 561, and Richard later sought annulment under article 2004, asserting that the dismissal resulted from fraud or ill practices.
Procedural history
Richard and Amanda Hebert filed suit arising from a one-vehicle accident. Amanda's claims were dismissed for discovery violations, and after a period of inactivity U-Haul obtained an ex parte dismissal of Richard's claims under Louisiana Code of Civil Procedure article 561. Richard did not timely move to set aside or appeal that dismissal, but later sought annulment under article 2004, which the trial court granted. The court of appeal reversed.