KENNETH GOUDEAU v. FORMOSA PLASTICS CORPORATION LOUISIANA (2026)

This matter is before us on appeal by plaintiff, Kenneth R. Goudeau, from a judgment of the trial court dismissing his suit without prejudice based on abandonment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 6, 2022, Kenneth R. Goudeau filed suit as a third-party petitioner against Formosa Plastics Corporation, Louisiana (“Formosa”) and its insurer seeking damages for an alleged accident, which occurred on May 12, 2021, while Mr. Goudeau was performing welding services at Formosa's facility in Baton Rouge, Louisiana. On June 9, 2022, Formosa answered the petition and asserted affirmative defenses and exceptions.

On July 3, 2025, Formosa filed an ex parte motion for dismissal on the grounds of abandonment pursuant to La. C.C.P. art. 561, averring there had been no steps taken by Mr. Goudeau in the underlying action in the three years following the filing of Formosa's answer and affirmative defenses on June 9, 2022. Formosa attached the affidavit of a member of its legal team attesting that for over three years, since the filing of its answer on June 9, 2022, no pleading had been filed in the record, no discovery pleading had been received or served, and Formosa had not waived abandonment so as to interrupt the abandonment period. Thus, Formosa sought an order of dismissal as of June 9, 2025, the alleged date of abandonment.

Mr. Goudeau opposed the motion, contending that he filed suit against Formosa to interrupt prescription while he was “concurrently” prosecuting a workers’ compensation claim against his employer, Aptim Maintenance, LLC (“Aptim”), which concluded on August 1, 2024, and that the workers’ compensation proceedings served to interrupt prescription and legal delays in the instant tort suit. In support of his opposition, Mr. Goudeau attached an order from the Office of Workers’ Compensation (“OWC”) judge, signed on August 1, 2024, dismissing his suit against Aptim.

Formosa filed a reply memorandum contending that steps taken in a collateral workers’ compensation proceeding were not sufficient to interrupt abandonment in the instant tort suit. Formosa averred that it was not Mr. Goudeau's employer, did not know that Mr. Goudeau's workers’ compensation claim existed, and that it was not a party to the workers’ compensation proceeding.

On July 7, 2025, the trial court granted Formosa's motion for abandonment and signed an order of dismissal, dismissing Mr. Goudeau's claims against Formosa without prejudice. Mr. Goudeau filed the instant appeal.

DISCUSSION

On appeal, Mr. Goudeau contends that the trial court erred as a matter of law in dismissing his tort suit against Formosa on the grounds of abandonment where the dismissal of Mr. Goudeau workers’ compensation case against his employer on August 1, 2024, caused the abandonment period to “run anew” or start over, extending the abandonment period to August 1, 2027. Mr. Goudeau further argues that depositions taken in his workers’ compensation case were sufficient to interrupt the tolling of abandonment in his tort suit against Formosa.

An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding. La. C.C.P. art. 561(A)(1). In order to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the suit record; and (3) the step must be taken within three years of the last step taken by either party. Young v. Ross, 2025-0529 (La. App. 1st Cir. 11/7/25), 424 So. 3d 830, 835, citing Williams v. Montgomery, 2020-01120 (La. 5/13/21), 320 So. 3d 1036, 1041. Abandonment is self-executing — it occurs automatically without formal court order. See La. C.C.P. art. 561(A)(2). However, on ex parte motion of any party or other interested person, by affidavit stating that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. La. C.C.P. art. 561(A)(2).

A step is a formal action by any party before the court intended to hasten the action towards judgment or is the taking of formal discovery. Williams, 320 So. 3d at 1041. A step is taken when there is a demonstrable intention of moving the case to trial, or stated differently, when the parties forward the progress of the case in court. Thus, a party's act of simply filing a document into the record does not constitute a step unless the filing serves to hasten the matter to judgment. Young, 424 So. 3d at 836.

Any formal discovery served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. La. C.C.P. art. 561(B). When the parties take no steps in the prosecution or defense of their claims during that legislatively-ordained period, the logical inference is that the party intends to abandon the claim, and the law gives effect to this inference. Williams, 320 So. 3d at 1041. Whether a step in the prosecution or defense of a case has been taken in the trial court for a period of three years is a question of fact subject to manifest error analysis. Froeba v. Marshall, 2024-0947 (La. App. 1st Cir. 2/21/25), 406 So. 3d 644, 648. Whether a particular act, if proven, qualifies as a step in furtherance of the action and thereby precludes abandonment is a question of law subject to de novo review by this Court. Young, 424 So. 3d at 835.

Abandonment is not a punitive measure. It is designed to discourage frivolous lawsuits by preventing plaintiffs from allowing them to linger indefinitely. Brown v. Kidney and Hypertension Associates, L.L.P., 2008-0919 (La. App. 1st Cir. 1/12/09), 5 So. 3d 258, 265. Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions that have clearly been abandoned. Lemlem v. Adams, 2004-0281 (La. App. 1st Cir. 2/11/05), 906 So. 2d 481, 484. Once a suit is abandoned, subsequent steps cannot serve to revive it. Young, 424 So. 3d at 837; Brown, 5 So. 3d at 265.

The parties herein do not dispute that no filings, actions, or discovery occurred in the instant tort proceeding from the time of the filing of Formosa's answer, affirmative defenses, and exceptions on June 9, 2022, until the filing of Formosa's motion for dismissal on July 3, 2025, a period in excess of three years. Instead, the issue presented herein is whether the actions taken in Mr. Goudeau's workers’ compensation case against his employer were sufficient to interrupt the abandonment period in his tort suit against Formosa.

This Court has held that steps taken in a separate action do not satisfy La. C.C.P. art. 561’s requirements and are insufficient to prevent abandonment. In Lemlem, the plaintiff, a passenger in an automobile accident, filed suit against the driver of the vehicle she occupied and his insurer, as well as the driver of an opposing vehicle and his insurer. The driver of her vehicle filed a separate suit against the driver of the opposing vehicle and his insurer. No action occurred in plaintiff's suit for a period of over three years. The driver and his insurer thus filed a motion to dismiss due to abandonment. The trial court ultimately granted the motion. On review, this Court determined that discovery responses provided by plaintiff in the driver's suit did not constitute a “step” taken in plaintiff's separate suit. See Lemlem, 906 So. 2d at 483-484.

In Hardy v. A. Wilbert's Sons, L.L.C., 2006-1093 (La. App. 1st Cir. 9/19/07), 970 So. 2d 1063, plaintiffs filed a tort suit against Dow for allegedly contaminating drinking water, and no action was taken in the suit for a period of over three years. Dow sought dismissal based on abandonment. Plaintiffs argued that a Case Management Order signed by a judge in another division of court, which listed nineteen lawsuits, including plaintiffs’ suit, alleging injuries arising from alleged contaminated drinking water constituted a step sufficient to preclude abandonment in their tort suit. The trial court deemed their suit abandoned where the order was not filed in their proceeding. On review, this Court affirmed and held that the signing of the case management order by the trial judge in another division did not interrupt the running of the time period for abandonment as to the plaintiffs’ lawsuit filed in a separate division of court. This Court further concluded that plaintiffs failed to demonstrate that the action of signing a Case Management Schedule was taken by a party to the lawsuit because the action was taken by the court, and not a party to the suit as required by La. C.C.P. art. 561, and thus could not serve to prevent abandonment. See Hardy, 970 So. 2d at 1065-1066.

Moreover, in Kelley v. Haller, 2011-1294 (La. App. 1st Cir. 3/23/12), 2012 WL 992116, *2 (unpublished), this Court held that where there were two separate suits involving the same parties in different judicial districts, a deposition taken in one action could not serve as a “step” taken in the other action so as to interrupt the abandonment period. See also Brown, 5 So. 3d at 266-267 (where this Court held that activities associated with a related ancillary pending matter before the Louisiana Office of Disciplinary Counsel did not constitute a step in the prosecution of the case before it); and Radiology Specialty Group v. National Union Fire Insurance Company, 2004-1680 (La. App. 3rd Cir. 11/2/05), 916 So. 2d 336, 338-339 (where the Third Circuit held that a deposition taken in furtherance of a federal lawsuit arising from the same vehicular accident was not an action taken in furtherance of the prosecution of the state court proceedings resulting from the accident so as to interrupt abandonment in the state court suit).¹

In the instant case, no step was taken in the instant tort suit against Formosa and Mr. Goudeua has failed to establish that Formosa was a party to, was privy to, or participated in Mr. Goudeau's workers’ compensation suit. See Lemlem, 906 So. 2d at 484 (“Responses to discovery propounded to an adverse party in a separate lawsuit submitted by counsel for the adverse party do not constitute a step in the prosecution of this lawsuit.”). The sole evidence set forth by Mr. Goudeau is an order of dismissal signed by the OWC judge.² Thus, we find no merit to Mr. Goudeau's argument that the OWC judge's order of dismissal in his workers’ compensation case against his employer was sufficient to interrupt the abandonment period in the instant tort suit against Formosa.

To the extent that Mr. Goudeau contends that Aptim and Formosa are solidary obligors such that “suit by one interrupts prescription as to all” pursuant to La. C.C. art. 1793, we note that abandonment is both historically and theoretically a form of liberative prescription that exists independent of the prescription that governs the underlying substantive claim. Brown, 5 So. 3d at 264. (Emphasis added.) In fact, an action may be deemed abandoned although the substantive claim has not prescribed. Williams, 320 So. 3d at 1044. Thus, while a prescriptive period may be interrupted with regard to an injured employee's claims against a third-party tortfeasor when the employee files a timely claim for workers’ compensation with the OWC, we find that such is not the case for the purposes of abandonment. See and compare Scott v. Sears, Roebuck and Company, 99-0571 (La. App. 1st Cir. 12/22/00), 778 So. 2d 50, 54, citing Williams v. Sewerage and Water Board of New Orleans, 611 So. 2d 1383, 1390 (La. 1993). Instead, in order to determine whether Mr. Goudeau's tort suit is abandoned, we are required to conduct our analysis by applying the governing statute, La. C.C.P. art. 561, and the jurisprudence interpreting same.

We further find no merit to Mr. Goudeau's argument that depositions taken in his workers’ compensation case constituted a step sufficient to interrupt the tolling of abandonment in his tort suit against Formosa. Although any formal discovery served on all parties, whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action, see La. C.C.P. art. 561(B), Mr. Goudeau set forth no evidence to establish the taking of depositions in his workers’ compensation case or the instant tort suit or that Formosa was served with, made aware of, or participated in any depositions.

Following our de novo review, we find the trial court properly deemed Mr. Goudeau's suit abandoned and properly dismissed his claims against Formosa without prejudice.

CONCLUSION

For the above and foregoing reasons, the July 7, 2025 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Kenneth R, Goudeau.

AFFIRMED.

FOOTNOTES

1.   See and compare Johnson v. Berg Mechanical Industries, 35-290 (La. App. 2nd Cir. 12/19/01), 803 So. 2d 1067, writ denied, 2002-0240 (La. 4/26/02), 814 So. 2d 556. Therein, the Second Circuit held that depositions taken in a workers’ compensation matter served as a step in the prosecution of the related tort matter arising from the same facts where defense counsel in the tort action was aware of the workers’ compensation proceeding, attended the depositions in the worker's compensation proceeding, and reserved their right to re-depose the parties in the tort action. The Johnson Court reasoned that “these defendants derived the benefit of listening to all of the depositions in preparation for defending the tort action. Undoubtedly, any information favorable to the defense would have been used by the defense attorneys who attended to monitor the proceedings for their clients. Had they considered the tort action abandoned, the defense attorneys would have had no reason to attend the worker's compensation depositions. ․ While there was no step in the prosecution of ․ this tort action taken before the court, this plaintiff clearly did not intend to abandon his tort action.” Johnson, 803 So. 2d at 1073. The facts of the instant case are notably distinguishable from those presented in Johnson.

2.   Although Mr. Goudeau argues in his brief on appeal that he took steps to bring his OWC case to a close, including setting pretrial and trial dates, conducting discovery, and depositions, he set forth no evidence to establish same.

MILLER, J.