Importance of Keeping Deadlines: Recent Court of Appeals Abandonment Decision

While a plaintiff may have the best case possible, things do not always work out the way they should. Lawsuits don’t just fail on their merits. Sometimes not following procedural deadlines or simply not taking action at all can spell doom as well. In an April 2010 decision, the First Circuit Louisiana Court of Appeals affirmed the dismissal of Shirley W. Fleischmann of Baton Rouge’s claim against Keith Henderson and his insurance company. They did this because three years had gone by with no action taken to move the claim forward, thus bringing into play the Louisiana Abandonment Statute.

The claim arose when Henderson’s car (driven by Jennifer Parker) struck and killed Thomas E. Fleischmann while he was walking along the roadway. Ms. Fleischmann was the victim’s widow and included Henderson and his insurance company as parties in her wrongful death lawsuit filed in April 2002. The State of Louisiana (Department of Transportation) was named as a party as well but was dismissed in 2005 because effective request for service was not made within 90 days of commencement of the action.

In September 2008 Ms. Fleischmann filed a motion for a status conference to declare she intended to move forward against Henderson and his insurance company. In December of that year both parties filed a motion and order to be dismissed from the lawsuit as well because pursuant to LSA-C.C.P. art. 561 no action had been taken for three years. The trial court granted the order. Ms. Fleischmann filed a Motion to Reconsider the Ruling and the matter was heard in court in February 2009. The district court affirmed the dismissal and Ms. Fleischmann appealed claiming that the hearing previously held on the Department of Transportation’s Motion to Dismiss was a step in the prosecution or defense that interrupted tolling on the abandonment of her lawsuit against the other defendants. The Court of Appeals disagreed.

Louisiana Code of Civil Procedure article 561 (1) provides “that 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.” The application of the statute is automatic and does not require action by either party.

The record of this case indicates that no sufficient action was taken from September 2002 to June 2005 when the Department of Transportation moved to dismiss.
The Louisiana Supreme Court has recognized that the actions of one un-served defendant can preclude abandonment claims as to other defendants. However the Court found that principal case where that occurred is distinguishable from this one in that Fleischmann did not continuously take part in discovery or given any depositions. In fact, nothing whatsoever occurred between the filing of Henderson’s insurance company’s Answer and the Motion to Dismiss. “The failure of a plaintiff to have a party served is not moving the case forward to hasten the matter to judgment.” As such, the action of an un-served party to obtain dismissal is not a step towards prosecution either and does not preclude the application of the abandonment statute.

As this case demonstrates, lawsuits that have a good legal basis may fail if plaintiffs do not take appropriate action to move forward in a timely manner or if parties are not served as required under the law. Here, Ms. Fleischmann may have been successful, or at least gotten her case to trial, if she was properly informed of procedural rules and had been able to follow them. An experienced attorney will help you not only analyze possible legal claims but also ensure that rules are followed to the letter if you choose to file a lawsuit.