Court systems are very highly burdened. Currently, there are too many cases compared to the number of judges and judicial staff. This phenomenon of law will not likely change any time soon. Therefore, the judicial system had to come up with ways to counter the overflowing process. One of the most logical methods of ending too much litigation is to limit the amount of time a case can sit in the judicial system without action. This is a process called abandonment. In Louisiana, if a case has not progressed, through prosecution or defense, for three years, the case will be thrown out of the court system and will be banned from further action.
The impact of such a rule is significant on any litigation. However, overcoming this outcome is very easy. Any significant action taken on behalf of any party in the case will re-start the time period. Therefore, the only cases that are hurt are cases where the plaintiff has filed a suit and has forgotten about it or has found better things to occupy time with. These cases remain on the books, and when, a few years down the road, the plaintiff remembers that the case is still pending, the case will be denied access to the courts.
Additionally, lawyers and clients should be aware that not all action intervenes on the three year time period. Some action will not stop the clock from running. LSA-C.C.P. art 561 states in relevant part:
This provision shall be operative without formal order, but on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
Then the statute goes on to describe what types of actions will constitute a step in the process of litigation:
Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
Any discovery will end the clock for abandonment. In a recent case, Mary Brown v. Michael Borg, a court discussed what will constitute a step. The action began with a typical car accident. The plaintiff, Ms. Brown, sued Michael Borg and his insurance company after Mr. Borg, while operating his vehicle, collided with Ms. Brown’s vehicle. After the action commenced, the parties relayed discovery requests back and forth. On August 18, 2005, Ms. Brown commenced her action. Attached to the petition was a request for discovery and interrogatories. On October 19, 2005, the defendants responded to the petition and also made discovery requests of their own. Ms. Brown responded to the defendants discovery request on July 17, 2006. On November 28, 2007, Mr. Borg’s counsel wrote to Ms. Brown and her counsel, requesting the discovery that was sent on July 17. On December 10, Ms. Brown’s counsel reported that all the requested documents and answers were already sent. No other actions were taken by either party. On October 16, 2009, Mr. Borg filed a motion to dismiss the petition due to abandonment. Ms. Brown argued that the communication on November 28, 2007 and December 10, 2007 were actions taken by the parties in furtherance of the prosecution and defense of the petition. However, the Court looked at the circumstances differently.
The Court classified the communication by the parties as indications that action would be taking. The Court argued that the communication indicated that no actions had been taken and that no actions would be done in response. The Court stated that the last action taken by either party was on July 17, 2006 when Ms. Brown responded to the defendants request for discovery. By the time Mr. Borg filed to dismiss the claim on October 16, 2009, by the Court’s decision, no action had been taken for over three years. Therefore, there was no longer any case pending, and Ms. Brown had lost her chance to file a petition.
If you have a claim, it is essential that you speak to an attorney as soon as possible. Competent legal counsel will provide continuous and consistent legal representation. If a case is pending for too long without action, Ms. Brown’s case demonstrates what can happen.
Please call the Berniard Law Firm to speak to an attorney who will take care of your case.