Louisiana Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C.

• Citation: 79 So.3d 978
• Decision Date: 06 December 2011
• Docket Number: No. 2011–C–0912.,2011–C–0912.
• Parties: The LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. OILFIELD HEAVY HAULERS, L.L.C., Ace Transportation, Inc., David Kyle Vincent II, and Liberty Mutual Fire Insurance Company.
• Court: Supreme Court of Louisiana

79 So.3d 978

The LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

v.OILFIELD HEAVY HAULERS, L.L.C., Ace Transportation, Inc., David Kyle Vincent II, and Liberty Mutual Fire Insurance Company.

No. 2011–C–0912.

Supreme Court of Louisiana.

Dec. 6, 2011.

James McCaleb Bookter, Baton Rouge, LA, for Applicant.

Gibson Gruenert & Zaunbrecher, PLLC, Paul Daniel Gibson, Jason Blake Boudreaux, Lafayette, LA, The Martin Law Firm, APLC, Dale Patrick Martin, Broussard, LA, for Respondent.

KNOLL, Justice.

[2011-0912 (La. 1] This civil case presents the issue of whether scheduling a discovery conference pursuant to Rule 10.1 of the Rules for Louisiana District Courts constitutes a “step” in the prosecution or defense of an action sufficient to prevent abandonment of the action under La.Code Civ. Proc. art. 561.

After plaintiff, Louisiana Department of Transportation and Development (“DOTD”), failed to timely respond to discovery requests, defendant, Oilfield Heavy Haulers, L.L.C. (“OHH”), sent a letter to DOTD on April 24, 2007, requesting a Rule 10.1 discovery conference. Subsequently, DOTD served its discovery responses on OHH, but neglected to serve the other defendants.

No formal action occurred in the case until April 22, 2010, when the District Court granted defendants' ex parte motion for an order of dismissal on the basis of abandonment. The Court of Appeal affirmed, finding DOTD's discovery responses and OHH's letter did not constitute steps in the prosecution or defense of the action. We granted this writ to address the correctness vel non of the appellate court's decision. La. Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11–0912 (La.6/24/11); 64 So.3d 224. For the following reasons, we find scheduling a Rule 10.1 conference constitutes a step in the prosecution or defense [2011-0912 (La. 2] of an action sufficient to interrupt abandonment. ¹ Therefore, we reverse the judgment of the Court of Appeal and remand to the District Court for further proceedings.

FACTS

On August 30, 2006, DOTD filed suit against defendants for property damage allegedly caused to two overpasses of Interstate 10 in Acadia Parish. DOTD alleges a vehicle owned by OHH, leased to Ace Transportation, Inc. (“Ace Transportation”), insured by Liberty Mutual Fire Insurance Company (“Liberty Mutual”), and driven by David Kyle Vincent, II (collectively “defendants”), was carrying an oversized load when it struck the overpasses in both the east and westbound lanes. Defendants filed responsive pleadings, including a cross-claim and third party demand by Ace Transportation, Vincent, and Liberty Mutual.

On March 15, 2007, OHH sent Interrogatories and Requests for Production to DOTD, which DOTD did not timely answer in accordance with La.Code Civ. Proc. art. 1458. Consequently, on April 24, 2007, counsel for OHH sent a fax to DOTD's counsel stating:

Your client's discovery responses are well overdue. Pursuant to Rule 10.1 of the Louisiana Uniform Rules, I would like to schedule a discovery conference for purposes of filing a Motion to Compel. Please be advised that we will contact your office on Friday April 27, 2007, at 2:30 p.m. in order to conduct the necessary discovery conference if I have not received your client's responses prior to that time.

OHH's counsel also faxed a copy of this correspondence to counsel for the remaining defendants. Counsel for DOTD and OHH conferred by phone on April 26, 2007, and apparently reached an agreement concerning DOTD's overdue responses. DOTD sent its formal discovery responses to counsel for OHH on May [2011-0912 (La. 3] 10, 2007, but neglected to send a copy of these responses to the remaining defendants.

No formal activity took place in the case until April 20, 2010, when DOTD sent Requests for Admissions to all defendants and filed them into the trial court record on April 22, 2010. Subsequently, on May 21, 2010, Ace Transportation, Vincent, and Liberty Mutual filed an ex parte Motion for Dismissal of the action on the basis of abandonment. On May 24, 2010, the District Court signed the judgment granting dismissal of all claims. DOTD then filed a Motion to Vacate and Set Aside Order of Dismissal. Following a hearing, the District Court denied DOTD's motion.

The Court of Appeal, Third Circuit, affirmed the judgment of the District Court. Relying on La.Code Civ. Proc. art. 561(B), which states “[a]ny formal discovery ... served on all parties ... shall be deemed to be a step in the prosecution or defense of an action,” the court found DOTD's formal discovery responses did not constitute a step in the prosecution of its action, as it did not serve its responses on “all parties,” only on OHH. La. Dep't of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 10–1392, p. 4–5 (La.App. 3 Cir. 4/6/11); 62 So.3d 308, 311.

The court also held OHH's April 24, 2007 letter scheduling a Rule 10.1 conference did not constitute a step in the prosecution of the action. According to the court, “[e]xtrajudicial efforts, such as informal discussions and correspondence between the parties, have uniformly been considered insufficient to constitute a step for purposes of interrupting or waiving abandonment.” Id., p. 5–6; 62 So.3d at 311 (internal quotations and citations omitted). Finding the April 24, 2007 letter was merely a correspondence between the parties, the court reasoned it was not formal discovery under Article 561(B) and was insufficient to constitute a step in the prosecution of the action. Id., p. 6; 62 So.3d at 312.

[2011-0912 (La. 4] Judge Saunders dissented and assigned reasons. First, he argued, dismissal of DOTD's entire suit due to its “inadvertent failure” to serve its discovery responses on all the parties was not in keeping with the purpose of Article 561, “not to dismiss suits whose plaintiffs have no intention of abandoning them based on a mere technicality.” Id., p. 1; 62 So.3d at 312 (Saunders, J., dissenting) (citation omitted). Second, as a Rule 10.1 conference is a prerequisite to filing any discovery motions, scheduling a Rule 10.1 conference constitutes a step in the prosecution of the action. Id., p. 2; 62 So.3d at 312–13. OHH's April 24, 2007 letter could be construed as a step, because “it actually did hasten the suit forward, as DOTD answered the outstanding discovery.” Id., p. 2; 62 So.3d at 312. Judge Saunders also noted:

Affirmation of this case results in a situation where DOTD would likely have been in a stronger position relative to abandonment had it merely ignored OHH's letter and not answered the discovery. Then, more likely than not, OHH would have filed a motion to compel the answer of that discovery, thus interrupting abandonment.

Id.

DISCUSSION

The controlling statute in this case is La.Code Civ. Proc. art. 561, which provides in part:

A. (1) 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....

B. 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.

Article 561 imposes three requirements 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 [2011-0912 (La. 5] 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. Co., 00–3010, p. 5–6 (La.5/15/01); 785 So.2d 779, 784.

A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. See James v. Formosa Plastics Corp. of La., 01–2056, p. 4 (La.4/3/02); 813 So.2d 335, 338. A step by one party prevents abandonment as to all of the parties, even though they are not solidarily liable. Delta Dev. Co., Inc. v. Jurgens, 456 So.2d 145, 146 (La.1984).

The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). Abandonment is not a punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose same by some technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Clark, 00–3010, p. 10–11; 785 So.2d at 787.

Our jurisprudence has uniformly held Article 561 is to be liberally construed in favor of maintaining a plaintiff's suit. Id., p. 8; 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., p. 10; 785 So.2d at 787. The intention of Article 561 is not to dismiss suits as abandoned based on technicalities, but only those cases where plaintiff's inaction during the three-year period has “ ‘clearly demonstrated his abandonment of the case.’ ” Id., p. 8–9; 785 So.2d at 785–86 (quoting Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir.1976), writ denied, 341 So.2d 420 (La.1977)). For the purpose of determining abandonment, [2011-0912 (La. 6] “the intent and substance of a party's actions matter far more than technical compliance.” Thibaut Oil Co., Inc. v. Holly, 06–0313, p. 5 (La.App. 1 Cir. 2/14/07); 961 So.2d 1170, 1172–73.

As an initial matter, we find OHH's letter should be analyzed under subsection (A)(1) of Article 561, rather than subsection (B) which pertains only to formal discovery....