TALEN II v. RHINO RHENCOVATORS LLC (2020)

Writ granted.

This writ concerns the abandonment of an action. Code of Civil Procedure Article 561 imposes three requirements to avoid abandonment: (1) a party must take some formal “step” in the prosecution 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; sufficient action by either plaintiff or defendant will be deemed a step.” Clark v. State Farm Mut. Auto. Ins., 00-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784. Jurisprudence has uniformly held Article 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Id. at p. 10-11, 785 So.2d at 785. Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Id.

The petition was filed on January 6, 2014, and actual service was made on the defendants on April 15, 2015, a “step” in the proceedings. The matter therefore was not abandoned on January 26, 2018. Plaintiff's Motion to Vacate Dismissal for Abandonment therefore has merit. The rulings of the lower courts are reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

PER CURIAM

Weimer, J., would deny. Genovese, J., would deny.