ALBERT GUTIERREZ AND PEDIATRIC SPECIALTIES APMC v. FRANK BURBANK AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (2024)

On January 11, 2018, plaintiffs filed suit against several parties, including Shelter Mutual Insurance Company (“Shelter”). The last action on the record occurred on April 23, 2020, when a joint motion and order for a protective order was filed.

Three years later, on April 24, 2023, Shelter filed an ex parte motion to dismiss plaintiffs’ suit based on abandonment under La. Code Civ. P. art. 561. The district court granted the ex parte motion to dismiss.

Plaintiffs then filed a motion to set aside the judgment of dismissal. In support, plaintiffs asserted that during 2022, the parties entered into discussions regarding setting the case for trial, although no formal motion to set the case for trial was ever filed into the record.

The district court granted plaintiffs’ motion to set aside the dismissal. Shelter sought supervisory review. A five-judge panel of the court of appeal denied the writ, with two judges dissenting. Shelter now seeks relief in this court.

Pursuant to La. Code Civ. P. art. 561, 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 ․” In Williams v. Montgomery, 2020-01120 (La. 5/13/21), 320 So.3d 1036, 1041, we discussed the requirements for avoiding abandonment:

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 record of the suit, and (3) the step must be taken within three years of the last step taken by either party. Louisiana Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912, pp. 4-5 (La. 12/6/11), 79 So.3d 978, 981. A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La. 4/3/02), 813 So.2d 335, 338. Sufficient action by either plaintiff or defendant will be deemed a step. See Oilfield Heavy Haulers, L.L.C., 11-0912 at p. 5, 79 So.3d at 981.

In the instant case, it is undisputed no action took place on the record during the three-year period between the filing of the joint motion and order for a protective order into the record on April 23, 2020, and the filing of the motion to dismiss for abandonment on April 24, 2024. Nonetheless, plaintiffs contend that during 2022, while the abandonment period was still running, the parties exchanged correspondence and selected a December 2022 trial date, although they admit that due to conflicts, no formal motion to set the case for trial was ever filed into the record.

It is well settled that extrajudicial efforts such as informal settlement negotiations between the parties, are insufficient to constitute a step for purposes of interrupting abandonment. Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La. 5/15/01), 785 So.2d 779, 790. We have also held that “simply attempting to schedule” a discovery matter, such as depositions, through informal correspondence is not a step in the prosecution of an action. Louisiana Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11), 79 So.3d 978, 982-83.

Applying the reasoning of these decisions to the facts of this case, I find any informal discussions or correspondence between the parties regarding scheduling the case for trial was insufficient to constitute a step in the prosecution of the action sufficient to interrupt the abandonment period.¹ In the absence of any steps in the prosecution of the action for a period of three years, I conclude the action is abandoned.

For the reasons assigned, I would grant this the writ, reverse the judgment of the district court setting aside the dismissal, and render judgment in favor of Shelter Mutual Insurance Company dismissing plaintiffs’ claims against it as abandoned.

FOOTNOTES

1.   Plaintiffs cite opinions such as Hutchison v. Seariver Marine, Inc., 2009-0410 (La. App. 1 Cir. 9/11/09), 22 So.3d 989, 995-96, writ denied, 2009-2216 (La. 12/18/09), 23 So.3d 946, in which the courts have held that actions outside of the record can demonstrate an intent on the part of the defendant to not to treat this case as abandoned, thereby waiving its right to assert abandonment. Without passing on the validity of this reasoning, these decisions are factually distinguishable, as they involved actions occurring after the abandonment period had expired and implicated issues of waiver of abandonment. In contrast, the informal actions in the instant case took place prior to the expiration of the abandonment period. After abandonment accrued, Shelter did not take any actions inconsistent with the intent to treat the matter as abandoned; to the contrary, it filed its motion to dismiss immediately after the three-year period expired.

Genovese, J., would grant and assigns the following reasons: