JACOB MARTIN v. CADET CASSANDRA GREEN AND STATE OF LOUISIANA THROUGH LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS RAYBURN CORRECTIONAL CENTER (2025)

Plaintiff, Jacob Martin, appeals a judgment sustaining a declinatory exception of insufficiency of service of process filed by defendant, State of Louisiana, through the Louisiana Department of Public Safety and Corrections Rayburn Correctional Center, and dismissing the State, without prejudice. After review, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 8, 2021, Martin, an inmate at Rayburn Correctional Center, filed a petition for damages/sexual assault against the State and Cadet Cassandra Green, a Rayburn employee; and a motion to proceed in forma pauperis.¹ The petition contained a request for the clerk of court to “ISSUE CITATION AND PLEASE SERVE” the State.² The trial court denied Martin's motion to proceed in forma pauperis on April 8, 2021 and ordered him to deposit with the clerk of court the initial filing fee of $350.00 and “such other costs as may from time to time accrue.” However, Martin did not pay the required fees owed to the clerk of court to effect service upon the State until March 2023, nearly two years after suit was filed.³

In response, the State filed declinatory exceptions of insufficiency of citation and insufficiency of service of process.⁴ See La. C.C.P. art. 925(A)(1) and (2).⁵ Materially, the State asserted that, although Martin requested service in his petition, he failed to pay all fees required to effectuate service.⁶ In suits against the State or a state agency, service of citation must be requested within ninety days of filing suit. See La. R.S. 13:5107(D)(2). According to the State, Martin did not pay the required fees and, thus, did not properly request service until March 2023, nearly two years after the petition was filed. Martin opposed the exceptions, pertinently arguing that he requested service in his petition, which is all that is required by La. R.S. 13:5107.

A contradictory hearing was held in August 2023, after which the trial court signed a judgment, sustaining the State's exception of insufficiency of service of process and dismissing the State, without prejudice. This judgment, signed on October 6, 2023, was silent as to the exception of insufficiency of citation.

Martin subsequently filed a motion for new trial, asserting the dismissal was improperly based on a lack of timely payment, not the lack of a timely request. Martin urged that the Louisiana Supreme Court has not found that a request for service is a nullity or ineffective without payment of the service fees within ninety days. Following a hearing in February 2024, the trial court denied the motion for new trial in a judgment signed on March 12, 2024. Martin then filed this appeal.⁷

ISSUES ON APPEAL

Martin contends there is no requirement that service fees be paid within ninety days for service to be “requested” for purposes of La. R.S. 13:5107. For this reason, he asserts the trial court erred by sustaining the State's exception of insufficiency of service of process and further erred by denying his motion for new trial.

When the defendant is the State, La. R.S. 13:5107(D)(1) requires that service of citation be requested within ninety days of the commencement of the action. Louisiana Code of Civil Procedure article 1201(C) likewise requires that service of the citation be requested on all named defendants within ninety days of commencement of the action. If service is not timely requested, the action shall be dismissed as to the State without prejudice, after contradictory motion as provided La. C.C.P. art. 1672(C). See La. R.S. 13:5107(D)(2). Louisiana Code of Civil Procedural article 1672(C) states, in part, that a judgment dismissing an action without prejudice shall be rendered as to a defendant for whom service has not been requested within the time prescribed by Article 1201(C) upon the sustaining of a declinatory exception filed by that defendant, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

Martin concedes the required service fees were not paid until March 2023 and that, as a result, the clerk of court “did not effectuate service” in response to the request for service set forth in his April 2021 petition.

In Carrie v. Southern University at New Orleans, 2024-00060 (La. 3/12/24), 380 So.3d 555 (per curiam), the Louisiana Supreme Court held that plaintiff's initial request for service of her supplemental petition was not proper because she “failed to [timely] pay the required service fees[.]” The Carrie plaintiff did not make a proper request for service until more than ninety days after the supplemental petition was filed, in violation of La. C.C.P. art. 1201(C). Consequently, the supreme court rendered judgment in favor of defendants, dismissing plaintiff's supplemental petition against them without prejudice pursuant to La. C.C.P. art. 1672(C). In reaching this conclusion, the supreme court favorably cited this court's decision in Jenkins v. Larpenter, 04-0318 (La. App. 1st Cir. 3/24/05), 906 So.2d 656, 659, writ denied, 05-1078 (La. 6/17/05), 904 So.2d 711, (“[w]e find that a request for service without payment of required fees, or without leave of court excusing such payment because of pauper status, simply is no proper request at all.”) Carrie, 380 So.3d at 555.

In Jenkins, 906 So.2d at 657, plaintiff's petition filed against a sheriff included a request that the sheriff be served with a copy of the petition. A pauper application, attached to the petition, was denied days after suit was filed, and service was not made until a year later. Jenkins, 906 So.2d at 657. The sheriff successfully sought to dismiss plaintiff's suit due to his failure to timely request service pursuant to La. C.C.P. art. 1201(C) and La. R.S. 13:5107(D). This court found that a request for service alone, without the payment of fees required to effectuate service, is insufficient. “The articles requiring that service be requested within ninety days would be rendered meaningless if a non-pauper plaintiff could include a paragraph in his petition ‘requesting’ service, but not actually pay the fee required for service to be effected.” Jenkins, 906 So.2d at 659. Thus, if a pauper status request is denied, it is incumbent on plaintiff to pay all fees required, including those necessary to effect service. Jenkins, 906 So.2d at 659.

Since Jenkins, this court has repeatedly reached the same conclusion. See Methvien v. Our Lady of the Lake, 2020-1081 (La. App. 1st Cir. 4/16/21), 318 So.3d 329, 332 (affirming the judgment sustaining an exception of insufficiency of service of process where plaintiff requested service in his petition but did not pay the fees to the sheriff's office for service within ninety days of filing the petition); Miller v. Hirstius, 2022-0740 (La. App. 1st Cir. 3/15/23), 363 So.3d 532, 540 (finding no error in the trial court's conclusion that service was not requested within ninety days of the suit's commencement because payment of the required sheriff's fees was untimely); and Lathan Co., Inc. v. Division of Administration, 2017-0396 (La. App. 1st Cir. 1/24/19), 272 So.3d 1, 6, writ denied, 2019-0331 (La. 4/29/19), 268 So.3d 1036 (finding plaintiff satisfied La. R.S. 13:5107 by requesting service and paying the required fees within ninety days of filing the petition.)⁸

Therefore, in accordance with jurisprudence mandated by the Louisiana Supreme Court and this court, we find the trial court properly sustained the State's exception of insufficiency of service of process due to Martin's failure to pay the required service fees within ninety days of filing suit. Martin does not allege and has not shown that good cause existed for his failure to timely effect service upon the State. Thus, the claims against the State were properly dismissed without prejudice. See La. R.S. 13-.5107(D)(2) and La. C.C.P. art. 1672(C). In light of this holding, we find no merit in Martin's assignment of error concerning the denial of his motion for new trial.

CONCLUSION

For the foregoing reasons, we affirm the October 6, 2023 judgment, sustaining the declinatory exception of insufficiency of service of process filed by the State of Louisiana, through the Louisiana Department of Public Safety and Corrections Rayburn Correctional Center, and dismissing the State, without prejudice. All costs of this appeal are assessed against Jacob Martin.

AFFIRMED.

The plain language of the statutes at issue, La. R.S. 13:5107(D)(1) and La. Code Civ. P. art. 1201(C), requires that service of citation be requested on all named defendants within ninety days of the commencement of the action. Neither La. R.S. 13:5107(D)(1) nor La. Code Civ. P. art. 1201(C) require that a defendant actually be served within ninety days of the plaintiff's filing of the petition. Miller v. Hirstius, 2022-0740 (La. App. 1st Cir. 3/15/23), 363 So.3d 532, 538. Nor do they mandate that a request for service requires payment of service fees. See La. R.S. 13:5107(D)(1) and La. Code Civ. P. art. 1201(C). However, the majority holds that the plaintiff's failure to pay the required service fees within ninety days of filing suit was not a proper request for service and warrants dismissal of his suit.

The starting point for the interpretation of any statute is the language of the statute itself. Louisiana State University Board of Supervisors Through Louisiana State University, v. Lewis, 2023-0647 (La. App. 1 Cir. 11/9/23), 379 So.3d 82, 85. “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. Code Civ. art. 9; Zanella's Wax Bar, LLC v. Trudy's Wax Bar, LLC, 2019-0043 (La. App. 1st Cir. 11/7/19), 291 So.3d 693, 697, writ denied, 2019-01931 (La. 1/28/20), 291 So.3d 1052.

Had the legislature intended that a plaintiff pay any applicable filing fees or be granted pauper status within a specified time period in order for the service request to be valid, it could have so provided. The legislature, in other statutes, has specified time periods for the delivery of required fees. For example, pursuant to La. R.S. 13:850(B)(2) regarding facsimile transmission, “[w]ithin seven days, exclusive of legal holidays, after the clerk of court receives the facsimile filing, all of the following shall be deli vered to the clerk of court․ [t]he fees for the facsimile filing and filing of the original document stated on the confirmation of receipt, if any.” Pursuant to La. R.S. 40:1231.8(A)(1)(g), “[t]he filing fee applicable to each identified qualified health care provider shall be due forty-five days from the mailing date of the confirmation of receipt of the request for review for the additional named defendants in accordance with Subparagraph (3)(a) of this Subsection.”

Furthermore, there is a remedy for a defendant when a plaintiff requests service of citation but fails to pay the applicable services fees, and that is, his civil claim will be subject to abandonment if he fails to take any additional step in the furtherance of the prosecution of the case for a period of three years. See La. Code Civ. P. art. 561(A). By wording La. R.S. 13:5107(D)(1) and La. Code Civ. P. art. 1201(C) as it has, the legislature clearly intended that service only be requested within ninety days and nothing more. Because La. R.S. 13:5107(D)(1) and La. Code Civ. P. art. 1201(C) are clear, and their application as written leads to no absurd consequences, this court should not expansively interpret La. R.S. 13:5107(D)(1) and La. Code Civ. P. art. 1201(C). Therefore, I respectfully dissent from the majority opinion finding that the trial court properly sustained the State's exception of insufficiency of service of process due to the plaintiff's failure to pay the required service fees within ninety days of filing suit.

FOOTNOTES

1.   This appeal presents a purely procedural issue; therefore, we do not address or consider Martin's factual allegations.

2.   Martin's petition also included a request for service on Cadet Green along with service instructions.

3.   In March 2023, Martin filed a motion to lift the stay, erroneously believing an automatic stay was in place pursuant to La. R.S. 15:1186. The parties subsequently agreed there was no stay in effect.

4.   Cadet Green separately filed an exception of insufficiency of service of process, which is not before this court.

5.   Louisiana Code of Civil Procedure article 925 sets forth the declinatory exceptions, which pertinently include (1) insufficiency of citation and (2) insufficiency of service of process, including failure to request service of citation on the defendant within the time prescribed by La. C.C.P. art. 1201(C).

6.   We do not address the parties’ arguments regarding service on the Office of Risk Management, as they are not material to the outcome of this appeal.

7.   Martin initially filed a writ application, seeking review of the October 6, 2023 judgment. This court granted the writ and remanded the matter to the trial court with instructions to grant Martin an appeal pursuant to the pleading that notified the trial court of his intent to seek writs. See Martin v. Green, 2024-0217 (La. App. 1st Cir. 6/17/24), 2024 WL 3045182 (unpublished writ action).

8.   The same result was reached in Spillman v. Parker, 54,532 (La. App. 2d Cir. 5/25/22), 339 So.3d 1268, writ denied, 2022-01005 (La. 10/12/22), 348 So.3d 77, Eugene v. Duroncelet, 19-224 (La. App. 5th Cir. 7/3/19), 275 So.3d 971, 975, writ denied, 2019-01393 (La. 11/25/19), 283 So.3d 500; and Ayers v. Goodwill Industries, 2003-1576 (La. App. 4th Cir. 3/10/04), 870 So.2d 348, 349.

PENZATO, J.

Fields, J., dissents with reasons