RICHARD MAHONEY v. ARIES MARINE CORPORATION WHITE FLEET DRILLING LLC ABC INSURANCE COMPANY AND XYZ INSURANCE COMPANY (2026)

Plaintiff, Richard Mahoney, a Jones Act seaman, filed suit after allegedly sustaining serious injuries during his employment with defendant, Aries Marine Corporation (“Aries Marine”), while aboard a vessel owned by defendant, White Fleet Marine, LLC (“WFM”). WFM appeals the trial court's April 28, 2025 judgment denying the joint motion to dismiss Mahoney's claims against WFM as abandoned. Aries Marine filed a writ application seeking review of the trial court's September 4, 2025 judgment granting Mahoney's motion for new trial, vacating the portion of the April 28, 2025 judgment dismissing Mahoney's claims against Aries Marine as abandoned, and denying the joint motion to dismiss as to Mahoney's claims against Aries Marine. For the following reasons, we dismiss WFM's appeal for lack of appellate jurisdiction and decline to convert the appeal to an application for supervisory writs. We deny Aries Marine's writ application.

FACTUAL AND PROCEDURAL BACKGROUND

On October 9, 2019, Mahoney filed his Jones Act lawsuit in the Nineteenth Judicial District Court for the Parish of East Baton Rouge (the “19th JDC”).² In response, both Aries Marine and WFM filed dilatory exceptions of improper venue, asserting that venue is improper in the 19th JDC and asking the court to either dismiss Mahoney's suit or transfer it to the proper venue in the Fifteenth Judicial District Court for the Parish of Lafayette. Mahoney opposed both the venue exceptions and the motion to transfer.

On September 28, 2020, a hearing was held on the exceptions of improper venue and was presided over by an ad hoc judge due to the hospitalization of the presiding judge, Judge Richard “Chip” Moore. At the conclusion of the hearing, the ad hoc judge allowed the parties ten days to supplement the record and provide reply memos, and noted it would issue a ruling thereafter. However, no ruling was ever issued on the venue exceptions.

On May 17, 2023, counsel for Mahoney sent an email to counsel for Aries Marine and WFM, stating:

We previously served discovery on both of your clients. I have attached the proof of service for each. To date we do not show that we received any discovery responses. I want to set a 10.1 conference in this case to discuss the outstanding discovery. I am setting it for 5/24 at 9 AM. If this time does not work for you please let me know.

Counsel for WFM replied to the above email the day it was sent, explaining WFM's position that the discovery requests were procedurally improper at that time because WFM had not yet filed an answer or made an appearance “due to the pending venue exception.” Counsel for WFM suggested the parties stipulate a transfer of the case to Lafayette so that WFM could file an answer and respond to Mahoney's discovery requests. Counsel for WFM stated he was available to discuss a “path forward” in the case on May 24, 2023 at 10:3 0 a.m. According to counsel for WFM, counsel for Mahoney did not respond to his email and did not initiate a telephone call for the Rule 10.1 conference.

On February 14, 2025, WFM and Aries Marine filed a joint ex parte motion to dismiss Mahoney's suit as abandoned pursuant to La. C.C.P. art. 561. WFM and Aries Marine asserted the last step taken in the prosecution or defense of the case occurred on October 5, 2020, when WFM filed its post-hearing supplemental memorandum in support of its exception of improper venue. Mahoney filed an opposition to the joint ex parte motion to dismiss arguing, in pertinent part, that the parties have treated the case as “effectively stayed” due to the pending exceptions of improper venue. Mahoney also argued the May 17, 2023 email by his counsel setting a Rule 10.1 conference was a step in the litigation, which interrupted abandonment.

On April 7, 2025, a contradictory hearing was held on WFM and Aries Marine's joint ex parte motion to dismiss.³ Thereafter, on April 28, 2025, the trial court issued a judgment finding that no steps had been taken in the prosecution or defense of the matter for three years after October 5, 2020, and that the matter was abandoned on October 5, 2023 as to Aries Marine, but was not abandoned as to WFM. Accordingly, the trial court granted Aries Marine's motion to dismiss, dismissing all of Mahoney's claims against Aries Marine without prejudice, and denied WFM's motion to dismiss. WFM appeals the April 28, 2025 judgment.

On May 14, 2025, Mahoney filed a motion for new trial as to the portion of the trial court's April 28, 2025 judgment dismissing his claims against Aries Marine as abandoned. The trial court held a contradictory hearing on Mahoney's motion on July 21, 2025. On September 4, 2025, the trial court granted Mahoney's motion for new trial, vacated the portion of the April 28, 2025 judgment dismissing Mahoney's claims against Aries Marine as abandoned, and denying the joint motion to dismiss as to Aries Marine. Aries Marine timely filed an application for supervisory writs, seeking review of the September 4, 2025 judgment. Aries Marine's writ application was referred to this appeal. Mahoney v. Aries Marine Corp., 2025-1112 (La. App. 1 Cir. 12/29/25) (unpublished writ action).

DISCUSSION

As an appellate court, we have the duty to examine our subject matter jurisdiction and to determine sua sponte whether such subject matter jurisdiction exists, even when the issue is not raised by the litigants. Bond v. Louisiana Purchase Equestrian Estates, LLC, 2019-0957 (La. App. 1 Cir. 2/21/20), 299 So. 3d 120, 124. This Court's appellate jurisdiction only extends to “final judgments.” Rose v. Twin River Development, LLC, 2017-0319 (La. App. 1 Cir. 11/1/17), 233 So. 3d 679, 683; see also La. C.C.P. art. 2083(A).

An interlocutory judgment is only appealable when expressly provided by law. La. C.C.P. art. 2083(C). The proper procedural vehicle to contest an interlocutory judgment is by application for supervisory writ. See La. C.C.P. art. 2201; Myers v. Diaz, 2022-0445 (La. App. 1 Cir. 11/4/22), 354 So. 3d 78, 81. A denial of a motion to dismiss for abandonment is a nonappealable interlocutory judgment because it determines a preliminary matter and not the merits of the action. Burkette v. Central Community School System, 2023-0305 (La. App. 1 Cir. 9/15/23) 2023 WL 6018585, *2 (unpublished). Likewise, the granting of a motion to set aside a dismissal that reverses the dismissal based on abandonment is an interlocutory judgment as it determines only a preliminary matter, not the merits of the action, and orders that the case is still pending.⁴ Id. Therefore, the April 28, 2025 judgment denying WFM's motion to dismiss Mahoney's claims against it as abandoned is an interlocutory judgment. See Burkette, 2023 WL 6018585 at *2.

We recognize that this Court has discretionary authority to convert an appeal from an interlocutory judgment to an application for supervisory writs. See Stelluto v. Stelluto, 2005-0074 (La. 6/29/05), 914 So. 2d 34, 39. Here, notice of the trial court's April 28, 2025 judgment was mailed to the parties on May 5, 2025, and WFM filed its motion for appeal on May 27, 2025. Therefore, WFM's appeal would have been timely had it been filed as an application for supervisory writs. See La. C.C.P. art. 1914; Rule 4-3 of the Uniform Rules of Louisiana Courts of Appeal. Nevertheless, we decline to convert WFM's appeal to an application for supervisory writs as this case does not meet the criteria set forth by the Louisiana Supreme Court in Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981) (per curiam). In particular, we do not find the trial court's denial of WFM's motion to dismiss Mahoney's claims against WFM as abandoned to be arguably incorrect.⁵

Louisiana Code of Civil Procedure article 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Louisiana Department of Transportation & Development v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So. 3d 978, 981-82. The intention of Article 561 is not to dismiss suits as abandoned based on technicalities, but only those cases where plaintiff's inaction during the three-year period has “clearly demonstrated his abandonment of the case.” Oilfield Heavy Haulers, 79 So. 3d at 982. We find Mahoney's May 17, 2023 email to Aries Marine and WFM requesting discovery responses and attempting to schedule a Rule 10.1 conference constituted a step in the prosecution of Mahoney's case. See La. C.C.P. art. 561; Oilfield Heavy Haulers, 79 So. 3d at 986 (holding that “sending a letter to all parties scheduling a discovery conference under Louisiana District Court Rule 10.1 constitutes a step in the prosecution or defense of the action”). Additionally, during the abandonment period at issue, the parties were awaiting a ruling on Aries Marine's and WFM's exceptions of improper venue—a threshold issue in the case. Therefore, the delay was attributable to the trial court, not Mahoney, and abandonment did not accrue. See Bickham, 395 So. 3d at 804-05 (explaining that where “the trial court fails to issue judgment following a trial during the period of abandonment, abandonment does not accrue”); Bryant v. Travelers Ins. Co., 288 So. 2d 606, 609 (La. 1974); Succession of Moody, 306 So. 2d 869, 873 (La. App. 1 Cir. 1974), writ denied, 310 So. 2d 639 (La. 1975).

CONCLUSION

For the above reasons, we decline to exercise our supervisory jurisdiction. We dismiss the appeal for lack of appellate jurisdiction. We deny the writ application assigned 2025 CW 1112. Costs of the appeal are assessed to White Fleet Marine, LLC.

APPEAL DISMISSED; WRIT DENIED.

Because I would reverse the trial court's denial of the defendants’ joint ex parte motion to dismiss, and because the granting of the joint ex parte motion to dismiss would terminate this litigation, I believe that judicial efficiency dictates consideration of the merits of this matter. See Burkette v. Central Community School System, 2023-0305, p. 5 (La.App. 1 Cir. 9/15/23), 2023WL6018585, *2 (unpublished). Accordingly, I disagree with the majority's decision not to convert WFM's appeal to a supervisory writ and to deny Aries Marine's supervisory writ application.

On the merits, the majority relies on Louisiana Department of Transportation and Development v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So.3d 978, as authority for their conclusion that “Mahoney's May 17, 2023 email to Aries Marine and WFM requesting discovery responses and attempting to schedule a Rule 10.1 conference constituted a step in the prosecution of Mahoney's case.”¹ ,² However, the instant case is factually distinguishable from Oilfield Heavy Haulers in that Oilfield Heavy Haulers was decided under a prior version of Rule 10.1, and counsel for Mahoney failed to follow the mandatory procedure set forth in the applicable version of Rule 10.1 as a prerequisite to the filing of a motion to compel discovery.

In Oilfield Heavy Haulers, the Louisiana Supreme Court considered whether scheduling a Rule 10.1 conference constitutes a step in the prosecution of a case sufficient to prevent abandonment of the action under La. C.C.P. art. 561. In that case, counsel for Oilfield Heavy Haulers sent a fax to DOTD's counsel, with a copy sent to counsel for the remaining defendants, stating that he would like to schedule a discovery conference for the purposes of filing a motion to compel regarding overdue discovery responses. Counsel for Oilfield Heavy Haulers advised in the fax that he would contact DOTD's counsel on a particular date and time in order to conduct the necessary conference if he had not received the overdue discovery response prior to that time. The parties ultimately agreed upon a resolution of the discovery issue prior to the date of the Rule 10.1 conference, and no motion to compel was ever filed. Oilfield Heavy Haulers, 2011-0912 at pp. 2-3, 79 So.3d at 980. An ex parte motion to dismiss on the basis of abandonment was later filed, requiring the supreme court to consider whether Oilfield Heavy Hauler's counsel's scheduling of a Rule 10.1 conference constituted a step in the prosecution or defense of the matter. Oilfield Heavy Haulers, 2011-0912 at pp. 2-3, 79 So.3d at 980. Considering the express language of the applicable version of Rule 10.1,³ the supreme court noted that a Rule 10.1 conference is a prerequisite to filing a motion to compel discovery or other discovery motion, which has been uniformly held to constitute a step in the prosecution of the action. Accordingly, the supreme court concluded that sending a fax to all parties scheduling a Rule 10.1 conference hastened the matter toward judgment, making it a step in the prosecution or defense of the action rather than merely informal correspondence. Oilfield Heavy Haulers, 2011-0912 at pp. 9-10, 79 So.3d at 984.

The case before us on appeal also concerns correspondence sent to counsel for all parties concerning the scheduling of a Rule 10.1 conference to discuss past-due discovery responses. However, unlike Oilfield Heavy Haulers, the version of Rule 10.1 applicable to the instant case provides that the moving party or attorney shall confer in person or by telephone with the opposing party or counsel for the purpose of amicably resolving the discovery dispute before any motion to compel discovery may be filed. The applicable version of Rule 10.1 further provides that the moving party or attorney shall attempt to schedule a suitable conference date with the opposing party or counsel and confirm the date by written notice sent at least five (5) days before the conference date, unless an earlier date is agreed upon or good cause exists for a shorter time period. Further, if the conference is to be held by telephone, the applicable version of Rule 10.1 states that the conference shall be initiated by the person seeking the discovery responses. La. District Court Rules, Rule 10.1(a). The applicable version of Rule 10.1 goes on to state that no motion to compel shall be filed or set for hearing unless accompanied by a Rule 10.1 Certificate of Conference, which shall certify to the court either (1) that a Rule 10.1 conference was held, but the parties were unable to resolve their discovery dispute, despite their best efforts, or (2) that the moving party or their counsel has personally attempted to contact the opposing party or their counsel to resolve the discovery dispute, but the opposing party or their counsel has failed to respond or to confer in good faith in an attempt to resolve the discovery dispute. La. District Court Rules, Rule 10.1(b).

In the instant case, after sending an email to opposing counsel stating that he wanted to set a Rule 10.1 conference on a particular date and time to discuss the outstanding discovery and asking opposing counsel to contact him if that time did not work for them, counsel for Mahoney failed to respond to opposing counsel's reply email concerning alternate conference times, failed to send the mandatory written notice of the conference date, and failed to either initiate a telephone conference or appear for an in-person conference (counsel for Mahoney's email failed to specify whether the Rule 10.1 conference would be held in person or by telephone). Thus, although Mahoney's counsel sent informal correspondence expressing a desire to schedule a Rule 10.1 conference, he did not follow the mandatory procedure set forth in the applicable version of Rule 10.1, which was a prerequisite to filing a motion to compel discovery. Accordingly, his email was merely informal correspondence that did not hasten the matter toward judgment and did not constitute not a step in the prosecution of the action.

I also disagree with the majority's finding that since the delay (waiting for the trial court to rule on the defendants’ exceptions) was attributable to the trial court rather than to Mahoney, the abandonment period is automatically interrupted. In so concluding, the majority relies on jurisprudence holding that abandonment does not accrue after a matter has been tried and submitted for decision and the delay is attributable to the court. However, in one of the cases cited by the majority, Bryant v. Travelers Ins. Co., 288 So.2d 606 (La. 1974), the supreme court explained that “[s]ubmission ․ following trial is pertinent [to the issue of whether a case is abandoned] because under the jurisprudence[,] where a case has been submitted for decision[,] the [former abandonment statute] is inapplicable to either litigant.” Bryant, 288 So.2d at 608, citing Barton v. Burbank, 71 So. 134, 135 (La. 1916) (holding that the former abandonment statute was inapplicable to situations where the case had been submitted for decision because the idea behind that statute was merely to hold a plaintiff responsible for a delay attributable to his nonaction in and failure to prosecute his suit up to the point at which the court is placed in a position to render judgment); but cf. Newson v. Bailey, 88 So.2d 391, 393 (La. Ct. App. 1956) (holding that the former abandonment statute applied and plaintiff's suit was abandoned where he failed to take any step in its prosecution or defense for the requisite time period following the trial on the merits and submission of the matter for decision because he failed to demonstrate that the delay or lack of prosecution was induced by circumstances beyond his control); and Nora v. Stanford, 633 So.2d 1209, 1210 (La. 1994) (holding that the abandonment statute applied and the abandonment period accrued in the years following the conclusion of the trial of the matter where the delay was due to the plaintiff's own culpability in failing to present his formal judgment to the court after confirming a default judgment, explaining that the plaintiff's failure to take a step that was his responsibility to take was a “critical factor” distinguishing the matter from its holdings in Barton and Bryant).

In concluding that the abandonment period was interrupted in this matter because the delay was attributable to the trial court rather than to Mahoney, the majority appears to be relying on a jurisprudential exception to the abandonment rule. Two exceptions to the abandonment rule have been recognized in the jurisprudence: (1) a plaintiff-oriented exception, based on the doctrine of contra non valentum, which applies when the failure to prosecute is caused by circumstances beyond the plaintiff's control; and (2) a defense-oriented exception, based on acknowledgement, that applies when a defendant waives the right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v. Bickham, 2023-01364, p. 12 (La. 10/25/24), 395 So.3d 792, 802.

With regard to the first exception, the plaintiff is required to make a showing that his failure to prosecute was caused by circumstances beyond his control. Food Perfect, Inc. v. United Fire & Casualty Co., 2012-2492, p. 2 (La. 1/18/13), 106 So. 3d 107, 108. Mahoney has argued that the trial court's failure to issue a ruling on the defendants’ venue exceptions and the defendants’ refusal to respond to propounded discovery were circumstances beyond his control that prevented him from litigating his claims. Mahoney explains that he “did not find it appropriate to insist on the court's determination of the defendants’ [venue exceptions],” but “he tried to continue to litigate his claims ․ by propounding discovery, requesting depositions of the defendants’ witnesses, and by urging the defendants to respond.” This argument is not persuasive. While Mahoney claims that the defendants’ refusal to respond to the discovery prevented him from taking a step in the prosecution of his claims, if he had served formal discovery on all parties (regardless of the defendants’ refusal to respond) or filed a motion to compel discovery following the defendants’ refusal to respond (adhering to the mandatory procedure set forth in Rule 10.1 for doing so), either action would have constituted a step in the prosecution of the matter that would have prevented abandonment. See La. C.C.P. arts. 561(B), 1421, and 1474; see also Oilfield Heavy Haulers, 2011-0912 at p. 10, n.4, 79 So.3d at 984, n.4. In addition, a motion for status conference to set a trial date and discovery deadlines has been held to be a step in the prosecution of an action because “the ultimate purpose of the conference was to hasten the matter to judgment by selecting deadlines for the parties to conclude all pretrial matters.” See Dendy v. City National Bank, 2006-2436, p. 10 (La.App. 1 Cir. 10/17/07), 977 So.2d 8, 13; see also La. C.C.P. art. 1551 and La. District Court Rules, Rule 9.14. Mahoney filed a motion for status conference “for the purpose of setting a trial date and discovery deadlines” on December 10, 2024 (after the expiration of the abandonment period); thus, he was clearly not prevented from filing such a motion by either the trial court's failure to issue a ruling on the venue exceptions or the defendants’ refusal to respond to discovery. In fact, the trial court held a status conference on February 2, 2025, despite the circumstances that Mahoney alleged prevented him from litigating his claims. Thus, Mahoney was clearly not prevented from taking steps to prosecute his action by circumstances beyond his control, and the plaintiff-oriented exception to abandonment does not apply.

Mahoney has also argued that the defense-oriented exception to abandonment applies because the defendants waived their right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned prior to the expiration of the three-year abandonment period, citing Moise v. Baton Rouge General Medical Center, 2022-0623, p. 6 (La.App. 1 Cir. 4/20/23), 367 So.3d 108, 112, writ denied, 2023-00718 (La. 9/26/23), 370 So.3d 475 (“[W]aiver by acknowledgment can occur before or after the accrual of the abandonment period and cause the period to begin anew.”). The actions that Mahoney alleges constituted a waiver of abandonment were Smith's emails dated May 17, 2023 and July 12, 2023, informing Lewis that WFM would not respond to discovery until the district court ruled on the venue exceptions. Mahoney argues that these pre-abandonment actions “effectively prevented the plaintiff from conducting any discovery in this case” and were inconsistent with their position that the case is abandoned.

The defense-oriented jurisprudential exception to abandonment developed during a time when La. C.C.P. art. 561 required a step in the prosecution of the matter to be taken by the plaintiff in order to preclude abandonment. La. C.C.P. art. 561, Official Revision Comments – 1960(c). The jurisprudential exception allowed a plaintiff to avoid dismissal of his suit as abandoned where the defendant had taken some action in the case inconsistent with an intention to have it treated as abandoned. Id. However, as explained in the comments to La. C.C.P. art. 561, “the problem is solved by [Article 561’s] broadened language ‘when the parties fail to take any steps in its prosecution or defense.’ ” La. C.C.P. art. 561, Official Revision Comments – 1960 (c).

Following the amendment to La. C.C.P. art. 561 to broaden the language to include actions taken by defendants, the defense-oriented jurisprudential exception continued to be applied to actions taken both before and after the accrual of the abandonment period. See Moise, 2022-0623 at p. 6, 367 So.3d at 112. However, in Foundation Elevation & Repair, LLC v. Miller, 2024-00810, p. 4, n.1 (La. 5/9/25), 408 So.3d 893, 896, n.1, the Louisiana Supreme Court clarified:

Article 561 provides that an action is abandoned “when the parties fail to take any step in its prosecution or defense” for three years. Because the foundational question before the three-year period elapses is whether an action is a “step” in the prosecution or defense, any discussion in the jurisprudence of defense “waiver” of abandonment before the three-year period has elapsed is improper.

As previously stated, there were no actions by the defendants prior to the expiration of the abandonment period that would constitute a step in the defense of the matter, and Smith's emails explaining WFM's refusal to respond to discovery did not prevent Mahoney from serving formal discovery on all parties, scheduling a Rule 10.1 conference, filing a motion to compel discovery or other discovery motions, or scheduling a status conference. The fact that Mahoney was not prevented from taking steps in the prosecution of the matter is further evidenced by the fact that Mahoney did in fact take some of these steps – they simply were not taken during the three-year abandonment period. The defense-oriented exception is likewise inapplicable to prevent abandonment under the circumstances of this case.

Accordingly, for the reasons set forth herein, I respectfully disagree with the majority's ruling in this matter and would convert WFM's appeal to an application for supervisory writ, grant the writ, and reverse the April 28, 2025 judgment denying White Fleet Marine's motion to dismiss; grant Aries Marine's supervisory writ application and reverse the September 24, 2025 judgment vacating the April 28, 2025 judgment as to Aries Marine and denying Aries Marine's motion to dismiss; and render judgment dismissing Mahoney's suit in its entirety as abandoned pursuant to La. C.C.P. art. 561.

FOOTNOTES

2.   On March 12, 2020, Mahoney filed a First Amended Petition for Damages adding WFM as a defendant and alleging venue was proper in the 19th JDC. In his original petition, Mahoney mistakenly named White Fleet Drilling, LLC as a defendant instead of WFM. Following the filing of Mahoney's First Amended Petition for Damages, White Fleet Drilling, LLC was dismissed from the suit without prejudice.

3.   We note the version of La. C.C.P. art. 561 applicable at the time WFM and Aries Marine's joint ex parte motion for dismissal was filed did not allow the trial court to set a contradictory hearing on the motion. Instead, the applicable version of La. C.C.P. art. 561(A)(2) required the trial court to enter a formal order of dismissal on the ex parte motion supported by affidavit that states that no step has been timely taken in the prosecution or defense of the action. As amended by Acts 2026, No. 127, § 1, effective August 1, 2026, La. C.C.P. art. 561(D) now allows a trial court to set a contradictory hearing on an ex parte motion if the mover's affidavit certifies that any pleadings, documents, or judgments have been filed in the record during the three years preceding the expiration of the abandonment period or that there has been written communication pertaining to the action between the mover and any adverse party or their attorneys of record during the one year preceding the expiration of the abandonment period.

4.   Mahoney styled his motion to set aside dismissal of his claims against Aries Marine as abandoned as a motion for new trial. Although a motion to set aside an order of dismissal is similar to a motion for new trial, under the exclusive procedure set forth in La. C.C.P. art. 561, a motion to set aside a dismissal is the proper pleading to challenge a dismissal order based on abandonment. See Comment—2003 to La. C.C.P. art. 561; Stogner v. Toyota Motor Sales, U.S.A., Inc., 2023-1234 (La. App. 1 Cir. 6/3/24), 392 So. 3d 377, 380. Therefore, this Court has treated a motion for new trial from a dismissal on the basis of abandonment as a motion to set aside the dismissal under La. C.C.P. art. 561(A)(3). See Stogner, 392 So. 3d at 380.

5.   As a question of law, the issue of whether a lawsuit is abandoned is subject to de novo review. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College v. Bickham, 2023-01364 (La. 10/25/24), 395 So. 3d 792, 798.

1.   The issue of whether activity in a case constitutes a “step” under Article 561 turns on whether it “hastens” the matter to judgment. Board of Supervisors of Louisiana State University & Agricultural & Mechanical College v. Bickham, 2023-01364, p. 6 (La. 10/25/24), 395 So.3d 792, 799. Although a step (other than formal discovery served on all parties) must appear in the record, not all pleadings or filings in a lawsuit are deemed to be steps sufficient to hasten a suit to judgment. For example, motions to enroll, withdraw, or substitute counsel of record do not constitute steps as contemplated by Article 561 because such motions grant to counsel the right to take steps, or to prepare to take steps, toward the prosecution or defense of a case, but are not considered steps because they do not hasten the matter to judgment. Bickham, 2023-01364 at pp. 6-7, 395 So.3d at 799; see also, James v. Formosa Plastics Corp. of Louisiana, 2001-2056, p. 9 (La. 4/3/02), 813 So.2d 335, 341 (A motion to substitute counsel of record merely grants to counsel the right to take steps toward prosecution of his client's case, but does not itself constitute such a step.). Simply attempting to schedule a deposition through informal correspondence, discussions, or negotiations before a formal notice of deposition is filed or mailed or the deposition actually takes place is not enough to constitute a step in the prosecution of a case for purposes of interrupting or waiving abandonment. Similarly, extrajudicial efforts, such as informal discussions and correspondence between the parties, have uniformly been considered insufficient to constitute a step for purposes of interrupting or waiving abandonment. Turner v. Moreau, 2024-0946, p. 3, n. 4 (La.App. 1 Cir. 7/3/25), 417 So.3d 1105, 1108, n. 4, writ denied, 2025-00992 (La. 11/5/25), 420 So.3d 41. On the other hand, motions to set for trial, or to schedule a status or other conference with the court, clearly advance a lawsuit and are thus steps that interrupt the abandonment period. Bickham, 2023-01364 at p. 7, 395 So.3d at 799.

2.   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; by contrast, whether a particular act, if proven, interrupts abandonment is a question of law that is examined by ascertaining whether the trial court's conclusion is legally correct. Froeba v. Marshall, 2024-0947, p. 5 (La.App. 1 Cir. 2/21/25), 406 So.3d 644, 648.

3.   Oilfield Heavy Haulers was decided under a prior version of Rule 10.1, which simply required a party to attempt to arrange a discovery conference prior to filing any discovery motion. Any discovery motion ultimately filed was required to include a certificate stating either that the parties held a conference and were unable to reach an agreement or that opposing counsel refused to participate in the conference after reasonable notice. See Oilfield Heavy Haulers, 2011-0912 at p. 9, 79 So.3d at 984.

BALFOUR, J.

Theriot, J. Dissents and Assigns reasons Haggerty, J. Dissents and joins in the reasons for dissent assigned by Theriot, J.