SANDERS v. HACKBARTH DELIVERY SERVICE INC (2024)

Writ granted; stay lifted. The interpretation given La. C.C.P. art. 1313(A)(4) by the court of appeal's majority erroneously places a burden of proof of receipt of an electronically transmitted pleading on the serving party. A plain reading of the statute establishes there is a presumption transmission is successful and the burden is on the party being served to rebut that presumption or timely notify the serving party of nonreceipt. Cf. Clark v. Bridges, 23-0237, pp. 7-10 (La. 2/22/23), 356 So. 3d 990, 994-96 (observing a distinction between “transmitted” and “delivered” for purposes of timely filing tax returns). Problematic is that the transmitting party has no way of knowing a pleading was received unless personally verified and a receiving party has no way of knowing whether a pleading was intended to be sent in the first instance. Clarification of the statute addresses itself to the legislature. However, we agree with Judges Chutz and Greene that, under the unique facts of this case, the trial court was within its discretion to grant a continuance for consideration of the opposition.

COURT OF APPEAL REVERSED; REMANDED TO TRIAL COURT

Generally, a trial court has no discretion to extend the fifteen-day deadline for filing an opposition to a motion for summary judgment. See La. Code of Civ. Proc. art. 966(B)(2); Auricchio v. Harriston, 2020-1167, (La. 10/10/21) 332 So.3d 660. But, a trial court may consider equitable concerns and continue a summary judgment hearing for “good cause.” Auricchio, 332 So.3d at 663; La. Code of Civ. Proc. art 966(C)(2); Mahe v. LCMC Health Holdings LLC, 2023-0025, (La. 3/14/23) 357 So.3d 322.

Louisiana Code of Civil Procedure art. 1313(A)(4) allows for service “by electronic means to counsel of record” and such service “is complete upon transmission but is not effective and shall not be certified if the service party learns the transmission did not reach the party to be served.” Here, the opposition pleading was timely filed and emailed to all counsel of record. However, it was not received by at least one party, Subcontracting Concepts, LLC, presumably because the volume of attachments prevented electronic delivery. No-one knew this at the time of transmission, and the notice of non-receipt occurred after the Art. 966(B)(2) filing deadline. Neither the language of Art. 966(B)(2) nor Art. 1313(A)(4) addresses this circumstance of electronic service. Because the service statute is flawed relative to electronic delivery, I find these facts constitute “good cause” for the continuance. The trial court did not abuse its discretion in granting the same.

PER CURIAM

Genovese, J., concurs in the result. Crain, J., concurs and assigns reasons,