track 2: civil procedure updates - louisiana judicial college · pdf filetrack 2: civil...

2017 FALL JUDGES

CONFERENCE October 1-3, 2017

Omni Royal Orleans Hotel, First Floor

Track 2: Civil Procedure Updates

Judge Nakisha Ervin-Knott Orleans Civil District Court

Professor William Corbett LSU Paul M. Hebert Law

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RECENT DEVELOPMENTS IN LOUISIANA CIVIL PROCEDURE AND EVIDENCE

2016-2017 William R. Corbett*

* © 2017 Frank L. Maraist and Wex S. Malone Professor of Law, LSU Law Center. I thank my friends and mentors Professor Emeritus Frank Maraist and Dean Tom Galligan for their newsletters, which I consulted as I prepared this paper. I thank Taylor Herpin, LSU Law Class of 2017, and Brooke C. Bahlinger, LSU Law Class of 2019, for their research assistance in preparation of this paper. All alleged facts discussed in this paper are as stated by the courts in the opinions or in other sources cited. This paper was last updated on Aug. 25, 2017.

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Table of Contents I. LEGISLATION AND RULES ..........................................................................................3

A. State Legislation ...........................................................................................................3

B. District Court Rules .................................................................................................... 34

II. CASE LAW ................................................................................................................... 34

A. United States Supreme Court .................................................................................... 34

B. Supreme Court of Louisiana ....................................................................................... 36

1. JNOV/New Trial ...................................................................................................... 36

2. Arbitration ............................................................................................................... 38

3. Subject Matter Jurisdiction ....................................................................................... 40

4. Medical Malpractice ................................................................................................. 41

C. Courts of Appeal ........................................................................................................ 42

1. Appeals .................................................................................................................... 42

2. Judgments............................................................................................................... 45

3. Summary Judgment ................................................................................................ 48

4. Trial ......................................................................................................................... 53

5. Witnesses ................................................................................................................. 55

6. Pleading ................................................................................................................... 55

7. Discovery .................................................................................................................. 56

8. Subpoena ................................................................................................................. 57

9. Prescription .............................................................................................................. 58

10. Abandonment ........................................................................................................ 60

11. Personal Jurisdiction .............................................................................................. 61

12. Collateral Source Rule ........................................................................................... 62

13. Prematurity ........................................................................................................... 62

14. Motion to Strike ..................................................................................................... 63

15. Intervention ............................................................................................................ 64

16. Sovereign Immunity ............................................................................................... 64

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I. LEGISLATION AND RULES

A. State Legislation

1. Act No. 91 repealed Code of Civil Procedure Art. 1426.1(E) in its entirety.

Art. 1426.1 provides as follows:

A. Upon motion of the district attorney in a criminal proceeding, a court having jurisdiction over any related pending civil action or proceeding may, in the interests of justice and for good cause shown after a contradictory hearing with all parties in the civil action, stay all or a portion of discovery sought in such civil action or proceeding. The contradictory hearing shall be held by the court in the civil action within thirty days of the filing of the motion. Good cause shall include but not be limited to a finding by the court that such discovery will adversely affect the ability of the district attorney to conduct a related criminal investigation or the prosecution of a related felony criminal case.

Before its repeal, Art. 1426.1(E) provided as follows:

E. No provision of this Article shall have applicability to petitions or proceedings for divorce, custody, child support, visitation, or protective orders pursuant to Title 9 and Title 46 of the Louisiana Revised Statutes of 1950.

2. Act No. 186 enacted La. R.S. 9:5826 and :5827:

§5826. Purpose

In response to the widespread flooding and power outages that occurred 13 in August of 2016, the governor of this state issued Executive Orders JBE 2016-53, 57, and 66, which, among other things, purport to suspend or extend certain prescriptive periods and peremptive periods. The legislature finds that it is necessary to provide for a clear termination of any suspension or extension of prescriptive

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periods and peremptive periods created by these executive orders in order to preserve a fair and consistent application of the laws of prescription and peremption.

§5827. Suspension and extension of prescription and peremption; 2016 flooding disaster

In accordance with Executive Orders JBE 2016-53, 57, and 66, all prescriptive periods, including liberative, acquisitive, and the prescription of nonuse, and all peremptive periods were suspended or extended for a period beginning August 12, 2016, and ending September 30, 2016. To the extent that any prescriptive period or peremptive period would have run on or before September 30, 2017, but for the suspension or extension of the period pursuant to the Executive Orders JBE 2016-53, 57, and 66, the prescriptive or peremptive period will be deemed to have run upon the earlier of: (1) the date calculated pursuant to Louisiana Civil Code Article 3472, or (2) September 30, 2017. The suspension and extension of prescriptive periods and peremptive periods contained in Executive Orders JBE 2016-53, 57, and 66 shall not apply to any prescriptive period or peremptive period accruing on or after October 1, 2017.

3. Act No. 268 amended and reenacted Code of Civil Procedure Art. 1446(A)(1) as follows:

Art. 1446. Certification by officer; custody of deposition; exhibits; copies; notice of availability for inspection or copying; cost of originals and copies of transcripts

A. (1) (a) The officer as defined in Article 1434(B) shall certify on the deposition that the witness was duly sworn and that the deposition is a true record of the testimony given by the witness.

(b) The officer shall do either of the following:

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(i) Securely He shall then securely seal the deposition in an envelope endorsed with the title of the action and marked “Deposition of (here insert name of witness)” and shall promptly and simultaneously send it by United States mail or by courier to the party at whose request the deposition was taken, who shall become the custodian of the deposition, and to all other parties to the action who have ordered a copy of the deposition transcript.

(ii) At the request of the parties, seal the deposition electronically by secure electronic means approved by rules promulgated by the Louisiana Board of Examiners of Certified Shorthand Reporters and shall promptly and simultaneously deliver the deposition electronically to the party at whose request the deposition was taken and to all other parties to the action who have ordered a copy of the deposition transcript. The party at whose request the deposition was taken shall then become the custodian of the deposition.

(c) The original of the deposition shall not be filed in the record, but shall be made available to all other parties in the matter for inspection or copying. The failure or lack of filing such original in the record shall not affect the use or admissibility of the original at trial or by the court if otherwise authorized or provided by law.

* * *

4. Act 294 amends and reenacts La. R.S. 40:1231.8 (A)(2)(b) and :1237.2 (A)(2)(b):

Act 294 of 2017:

§ 1231.8. Medical review panel

A.

* * *

(2)

* * *

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(b) (i) The request for review of a malpractice claim under this Section shall be deemed filed on the date of receipt of the request stamped and certified by the division of administration or on the date of mailing of the request if mailed to the division of administration by certified or registered mail the request is:

(aa) Sent, if the request is electronically sent by facsimile transmission or other authorized means, as provided by R.S. 9:2615(A), to the division of administration.

(bb) Mailed, if the request is delivered by certified or registered mail to the division of administration.

(cc) Received, if the request is delivered to the division of administration by any means other than as provided by Subitem (aa) or (bb) of this Item.

(ii) Upon receipt, the request shall be stamped with the filing date and certified by the division of administration. Filing of the request shall be complete only upon timely compliance with the provisions of Subparagraph (1)(c) or (d) of this Subsection. Upon receipt of any request, the division of administration shall forward a copy of the request to the board within five days of receipt.

§ 1237.2. State medical review panel

A.

* * *

(2)

* * *

(b) (i) The request for review of the claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the commissioner, or on the date of mailing of the complaint if mailed to the commissioner by certified or registered mail the request is:

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(aa) Sent, if the request is electronically sent by facsimile transmission or other authorized means, as provided by R.S. 9:2615(A), to the division of administration.

(bb) Mailed, if the request is delivered by certified or registered mail to the division of administration.

(cc) Received, if the request is delivered to the division of administration by any means other than as provided by Subitem (aa) or (bb) of this Item.

(ii) Upon receipt, the request shall be stamped with the filing date and certified by the division of administration. Filing of the request shall be complete only upon timely compliance with the provisions of Subparagraph (1)(c) or (d) of this Subsection.

5. Act No. 363 amends and reenacts La. R.S. 13:4163(E)(1)(b), (E)(1)(c), and I:

§ 4163. Ex parte motion for legislative continuance or extension of time; legislators or employees engaged in legislative or constitutional convention activities

* * *

E. (1)

* * *

(b) If the grounds for a legislative continuance or extension are founded upon any provision of Subparagraph (C)(1)(c) of this Section or upon the issuance of a call for an extraordinary session of the legislature, the motion for legislative continuance or extension shall be timely if filed no later than five calendar days prior to the hearing or proceeding to be continued or no later than two days following the issuance of the notice of the meeting or of the call for the extraordinary legislative session, which ever occurs last. An affidavit of the clerk of the House of Representatives or

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the secretary of the Senate verifying the issuance and date of the issuance of the notice or of the call shall be attached to the motion.

(c) The provisions of this Paragraph shall not be applied so as to impede the peremptory nature of this Section.

* * *

I. (1) For sufficient cause shown, the court may shall consider a motion for legislative continuance or extension at any time prior to the hearing or proceeding.

(2) The motion for a legislative continuance may be filed by electronic means such as facsimile transmission or electronic mail, or any other means authorized by law, provided that the mover shall provide all opposing counsel or parties with a copy of the motion, simultaneously with the transmission of the motion to the court.

6. Act No. 381 amends and Reenacts Code of Civil Procedure Arts. 1421 and 1464 and La. R.S. 23:1123, :1124, :1203(E), :1221(4)(s)(ii), :1307, :1317.1, 39:1952(14)(e), and 46:2136(A)(4):

a. Art. 1421. Discovery methods

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations, including additional medical opinions under Article 1464; request for release of medical records; and requests for admission. Unless the court orders otherwise under Article 1426, the frequency of use of these methods is not limited.

* * *

b. CCP Art. 1464 Order for an additional medical opinion for physical or mental examination of persons

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A. When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a an additional medical opinion regarding physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. In addition, the court may order the party to submit to an additional medical opinion regarding an examination by a vocational rehabilitation expert or a licensed clinical psychologist who is not a physician, provided the party has given notice of intention to use such an expert. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

B. Regardless of the number of defendants, a plaintiff shall not be ordered to submit to multiple examinations by multiple physicians within the same field of specialty for the same injury except for good cause shown.

C. A minor subject to examination under the provisions of this Article shall have the right to have a parent, tutor, or legal guardian present during the examination. If such person cannot be present, the court shall order the examination to be videotaped at the expense of the party being examined. The court shall consider the best interests of the minor and may impose conditions upon videotaping, including that it be done in a manner least harmful to the minor and without disclosure to the minor.

c. R.S. 23:1123. Disputes as to condition or capacity to work; additional medical opinion regarding an examination under supervision of the director

If any dispute arises as to the condition of the employee, or the employee's capacity to work, the director, upon application of any party, shall order an additional medical opinion regarding an examination of the employee to be made by a medical practitioner selected and appointed by the

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director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

d. La. R.S. 23:1124. Refusal to submit to an additional medical opinion regarding an examination; effect on right to compensation If the employee refuses to submit himself to an additional medical opinion regarding a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter may be suspended by the employer or payor until the examination takes place. Such suspension of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A)(4) and (5). When the employee has filed a disputed claim, the employer or payor may move for an order to compel the employee to appear for an additional medical opinion regarding an examination. The employee shall receive at least fourteen days written notice prior to the additional medical opinion regarding an examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension. e. La. R.S. 23:1203 Duty to furnish medical and vocational rehabilitation expenses; prosthetic devices; other expenses

* * * E. Upon the first request for authorization pursuant to R.S. 23:1142(B)(1), for a claimant's medical care, service, or treatment, the payor, as defined in R.S. 23:1142(A)(1), shall communicate to the claimant information, in plain language, regarding the procedure for requesting an independent additional medical opinion regarding a medical examination in the event a dispute arises as to the condition of the employee or the employee's capacity to work, and the procedure for appealing the denial of medical treatment to the medical director as provided in R.S. 23:1203.1. A payor shall not deny medical care, service, or treatment to a claimant unless the payor can document a reasonable and diligent effort in communicating such information. A payor who denies medical care, service, or treatment without making such an effort may be fined an amount not to exceed five

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hundred dollars or the cost of the medical care, service, or treatment, whichever is more.

* * *

f. La. R.S. 23:1221 Temporary total disability; permanent total disability; supplemental earnings benefits; permanent partial disability; schedule of payments Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

* * * (4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:

* * *

(s)(i) (ii) In any claim for an injury, it must be established by clear and convincing evidence that the employee suffers an injury and that such resulted from an accident arising out of and in the course and scope of his employment. Nothing herein shall limit the right of any party to obtain a second medical opinion or, in appropriate cases, the opinion of an independent additional medical opinion medical examiner pursuant to R.S. 23:1123.

* * * g. La. R.S. 23:1307. Information to injured employee Upon receipt of notice of injury from the employer or other indication of an injury reportable under R.S. 23:1306, the office shall mail immediately to the injured employee and employer a brochure which sets forth in clear understandable language a summary statement of the rights, benefits, and obligations of employers and employees under this Chapter, together with an explanation of the operations of the office, and shall invite the employer and employee to seek the advice of the office with reference to any question or dispute which the employee has concerning the injury. Such brochure shall specifically state the procedure for requesting an independent

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additional medical opinion regarding a medical examination in the event a dispute arises as to the condition of the employee or the employee's capacity to work and the procedure for appealing the denial of medical treatment to the medical director as provided in R.S. 23:1203.1. If such brochure has previously been mailed to an employer within the calendar year, the office shall not mail such the employer an additional brochure unless the employer specifically requests such it. h. La. R.S. 23:1317.1 Independent Additional medical opinion regarding medical examinations A. Any party wishing to request an independent additional medical opinion regarding a medical examination of the claimant pursuant to R.S. 23:1123 and 1124.1 shall be required to make its request at or prior to the pretrial conference. Requests for independent additional medical opinions regarding medical examinations made after that time shall be denied except for good cause or if it is found to be in the best interest of justice to order such examination. B. An examiner performing independent additional medical opinion exams pursuant to R.S. 23:1123 shall be required to prepare and send to the office a certified report of the examination within thirty days after its occurrence. C. The report of the examination shall contain the following, when applicable: (1) A statement of the medical and legal issues the examiner was asked to address. (2) A detailed summary of the basis of the examiner's opinion, including but not limited to a listing of reports or documents reviewed in formulating that opinion. (3) The medical treatment and physical rehabilitative procedures which have already been rendered and the treatment, if any, which the examiner recommends for the future, together with reasons for the recommendation. (4) Any other conclusions required by the scope of the independent additional medical opinion regarding a medical examination, together with reasons for the conclusion reached. (5) A curriculum vitae of the examiner. (6) A written certification personally signed by the examiner that the report is true. The substance of the certification shall be: “I certify that I have caused this report to be prepared, I have examined it, and to the

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best of my knowledge and belief, all statements contained herein are true, accurate, and complete.” D. If a physical examination of the claimant was conducted, the certified report shall contain all of the following additional information: (1) A complete history of the claimant, including all previous relevant or contributory injuries with a detailed description of the present injury. (2) The complaints of the claimant. (3) A complete listing of tests and diagnostic procedures conducted during the course of the examination. (4) The examiner's findings on examination, including but not limited to a description of the examination and any diagnostic tests and X-rays. E. When the independent additional medical opinion medical examiner's report is presented within thirty days as provided in this Section: (1) The examiner shall be protected from subpoena except for a single trial deposition. However, upon a proper motion for cause, the workers' compensation judge may order further discovery of the independent additional medical opinion by a medical examiner as deemed appropriate. (2) Except to schedule the deposition or further discovery as described above, the office of the independent additional medical opinion medical examiner shall not be contacted regarding the claimant by any party, attorney, or agent. F. Objections to the independent additional medical opinion regarding a medical examination shall be made on form LDOL–WC–1008, and shall be set for hearing before a workers' compensation judge within

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thirty days of receipt. No mediation shall be scheduled on disputes arising under this Section. i. La. R.S. 39:1952(14)(e) 1952. Definitions Unless the context requires otherwise, the following words shall have the following meanings:

* * * (14) “Minority” means a person who is a citizen or permanent resident of the United States residing in Louisiana and who is any of the following:

* * * (e) Person with a disability: a person who has a permanent physical impairment which includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, speech organs, skin, and endocrine, which substantially limits at least one major life activity of an individual, as defined in R.S. 28:477(3)(a), as verified by two physicians or as certified by the United States Department of Veterans Affairs as meeting the qualifications and approved by the division. The division may require an additional independent medical opinion regarding a medical examination by a physician chosen by the division, at the applicant's expense, prior to approval of an application. For the purpose of this Subparagraph, “disability” shall not mean mental impairment, temporary impairment, alcohol or drug addiction, sexual or behavioral disorders, or substantially limiting illnesses including human immunodeficiency virus.

* * *

j. La. R.S. 46:2136. Protective orders; content; modification; service A. The court may grant any protective order or approve any consent agreement to bring about a cessation of domestic abuse as defined in R.S. 46:2132(3), or the threat or danger thereof, to a party, any minor

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children, or any person alleged to be incompetent, which relief may include but is not limited to:

* * * (4)(a) Ordering an additional medical opinion regarding a medical evaluation of the defendant or the abused person, or both, to be conducted by an independent court-appointed evaluator who qualifies as an expert in the field of domestic abuse. The evaluation shall be conducted by a person who has no family, financial, or prior medical relationship with the defendant or abused person, or their attorneys of record. (b) If the additional medical opinion medical evaluation is ordered for both the defendant and abused person, two separate evaluators shall be appointed. (c) After an independent an additional medical opinion medical evaluation has been completed and a report issued, the court may order counseling or other medical treatment as deemed appropriate.

* * *

7. Act No. 409 enacts Code of Evidence Art. 902(11): Art. 902. Self-authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

* * * (11) Certified records of a regularly conducted business activity in criminal cases. In criminal cases, the original or a copy of a record of a regularly conducted business activity that meets the requirements of Article 803(6), as shown by a certification of the custodian or another qualified person, and that complies with Louisiana law, including R.S. 13:3733 through 3733.2, or a rule prescribed by the Louisiana Supreme Court. Before the trial or hearing, the proponent shall give an adverse party reasonable written notice of the intent to

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offer the record and shall make the record and certification available for inspection so that the party has a fair opportunity to challenge it. 8. Act 419 amends and reenacts numerous CCP arts. and La. R.S. a. CCP Art. 74.3.1 Art. 74.3.1. Marriage of persons; waiver of certain information A. A person applying for a marriage license who is unable to provide a birth certificate, letter required by R.S. 9:227, a valid and unexpired passport, or visa accompanied by Form I-94 as issued by the United States may provide a Certificate of Naturalization by the U.S. Citizenship and Immigration Authority. A person applying for a marriage license who is unable to provide a social security number may provide a driver's license, a government issued identification card, a passport, a visa issued by the United States Department of State, or a Certificate of Naturalization issued by the United States Citizenship and Immigration Services. A person applying for a marriage license who is unable to comply with the requirements of this Article may seek judicial authorization for waiver of the requirements of this Article. The court may grant the waiver and order the issuance of the marriage license if, after hearing and good cause shown, the court finds that such relief is appropriate and that the person has complied with other legal requirements for the marriage license. The hearing may be conducted in camera, and before a duty judge. The written order granting the waiver shall be attached to the marriage license application. If the court denies the waiver, the court shall provide reasons for the denial of the waiver. B. The judicial authorization may be granted by the district court, parish court, family court, or juvenile court, in the parish in which the marriage license application is made, or by the First or Second City Court of the City of New Orleans if such application is made within their territorial jurisdiction, or by a justice of the peace court or city court if the issuing official is located within the justice of the peace or city court's territorial jurisdiction. C. The provisions of this Article are in addition to any other right or remedy provided by law, are notwithstanding any other

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provision of law to the contrary, and shall supersede and control to the extent of conflict with any other provision of law. b. CCP Art. 253.3 A. In any case assigned pursuant to Article 253.1, a duty judge shall only hear and sign orders or judgments for the following:

* * * (4) Uncontested cases in which all parties other than the plaintiff are represented by a curator ad hoc an attorney appointed by the court.

* * * Comments—2017

The purpose of the amendment to Subparagraph (A)(4) of this Article was to align the provision with Article 5091 by replacing “a curator ad hoc” with “an attorney appointed by the court.” c. CCP Art. 284 Art. 284. Judicial powers of district court clerk The clerk of a district court may render, confirm, and sign final default judgments by default or judgments by confession in cases where the jurisdiction of the court is concurrent with that of justices of the peace, as provided in Article 5011.

Comments—2017 This Article has been amended to substitute “final default judgments” for “judgments by default” to make the article more easily understood and to make the terminology consistent with other related articles. This amendment is intended to be stylistic only. d. CCP Art. 532 Art. 532. Suits Motions to stay in suits pending in Louisiana and federal or foreign court When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same transaction or occurrence, between the same parties in the same capacities, on motion of the defendant or on its own motion, the court may stay all

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proceedings in the second suit until the first has been discontinued or final judgment has been rendered.

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e. CCP Art. 925 Art. 925. Objections raised by declinatory exception; waiver A. The objections which may be raised through the declinatory exception include but are not limited to the following:

* * * (3) Lis pendens under Article 531.


Subparagraph (A)(3) of this Article was amended to clarify that, although Article 532 appears in Chapter 3 of Book I of Title II, entitled “Lis Pendens,” the declinatory exception of lis pendens may be raised only under Article 531. Article 532 permits the court to stay the proceedings of a second suit pending resolution of the first suit but does not permit the court to dismiss the second suit by granting an exception of lis pendens.

* * *

f. CCP Art. 928 Art. 928. Time of pleading exceptions A. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the confirmation signing of a final default judgment. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same

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pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.


Paragraph A of this Article has been amended to substitute “signing of a final default judgment” for “confirmation of a default judgment” to make the article more easily understood and to make the terminology consistent with other related articles. Pursuant to Article 1002, the defendant may file an answer or other pleading at any time prior to the actual signing of the final default judgment. See Martin v. Martin, 680 So. 2d 759 (La. App. 1st Cir. 1996). g. CCP Art. 1002 Art. 1002. Answer or other pleading filed prior to confirmation signing of final default judgment Notwithstanding the provisions of Article 1001, the defendant may file his answer or other pleading at any time prior to confirmation the signing of a final default judgment against him.

Comments—2017 This Article has been amended to clarify that the defendant may file an answer or other pleading at any time prior to the actual signing of the final default judgment. See Martin v. Martin, 680 So. 2d 759 (La. App. 1st Cir. 1996). h. CCP Art. 1701 Art. 1701. Judgment by Preliminary default A. If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or by the court, judgment by default a preliminary default may be entered against him. The judgment preliminary default may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment preliminary default shall consist merely of an entry in the minutes. B. When a defendant in an action for divorce under Civil Code Article 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a judgment of preliminary default may be entered against the defendant the day on which the affidavit

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is filed. The affidavit of the defendant may be prepared or notarized by any notary public. The judgment preliminary default may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment preliminary default shall consist merely of an entry in the minutes. Notice of the signing entry of the final judgment as provided in Article 1913 preliminary default is not required.

Comments—2017 (a) This Article has been amended to substitute “preliminary default” for “judgment of default” and “judgment by default” to make the article more easily understood and to make the terminology consistent within the article and with other related articles. A preliminary default is not a judgment. A final judgment confirming a preliminary default is now referred to as a “final default judgment.” These amendments are intended to be stylistic only. (b) The first sentence of Paragraph A of this Article has also been amended to provide that a preliminary default can be entered if the defendant “fails to answer or file other pleadings within the time prescribed by law or by the court.” i. CCP Art. 1702 Art. 1702. Confirmation of preliminary default judgment A. A judgment of preliminary default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirmation the entry of a final default judgment. The court may permit documentary evidence to be filed in the record in any electronically stored format authorized by the local rules of the district court or approved by the clerk of the district court for receipt of evidence. If no answer or other pleading is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of preliminary default. When a judgment of preliminary default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of preliminary default must be sent by certified mail by the party obtaining the judgment of preliminary default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of preliminary default. B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to

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establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a final default judgment. (2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a final default judgment (3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required. C. In those proceedings in which the sum due is on an open account or a promissory note, other negotiable instrument, or other conventional obligation, or a deficiency judgment derived therefrom, including those proceedings in which one or more mortgages, pledges, or other security for the open account, promissory note, negotiable instrument, conventional obligation, or deficiency judgment derived therefrom is sought to be enforced, maintained, or recognized, or in which the amount sought is that authorized by R.S. 9:2782 for a check dishonored for nonsufficient funds, a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final default judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the proposed final default judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the final default judgment. A certified copy of the signed final default judgment shall be sent

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to the plaintiff by the clerk of court, and notice of the signing of the final default judgment shall be given as provided in Article 1913. D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony. E. Notwithstanding any other provisions of law to the contrary, when the demand is for divorce under Civil Code Article 103(1) or (5), whether or not the demand contains a claim for relief incidental or ancillary thereto, a hearing in open court shall not be required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition, the original and not less than one copy of the proposed final judgment, and a certification which shall indicate the type of service made on the defendant, the date of service, the date a preliminary default was entered, and a certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other opposition pleading has been filed. If the demand is for divorce under Civil Code Article 103(5), a certified copy of the protective order or injunction rendered after a contradictory hearing or consent decree shall also be submitted to the court. If no answer or other pleading has been filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry of a preliminary default, review the affidavit, proposed final default judgment, and certification, render and sign the proposed final default judgment, or direct that a hearing be held. The minutes shall reflect rendition and signing of the final default judgment.

Comments—2017 (a) This Article has been amended to substitute “preliminary default” for “judgment of default” and “judgment by default” to make the article more easily understood and to make the terminology consistent within the Article and with other related Articles. A final judgment confirming a preliminary default is now referred to as a “final default judgment.” These amendments are intended to be stylistic only. (b) Paragraph E of this Article has been amended to provide that, when a demand for divorce is made under Civil Code Article 103(5), a certified copy of the protective order or injunction rendered after a contradictory

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hearing or consent decree as required by that Article shall be submitted to the court in addition to the affidavit of the plaintiff. j. CCP Art. 1702.1 Art. 1702.1. Confirmation of preliminary default judgment without hearing in open court; required information; certifications A. When the plaintiff seeks to confirm a preliminary default judgment without appearing for a hearing in open court as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the a written motion for confirmation of preliminary default and proposed final default judgment a certification that the suit is on an open account, promissory note, or other negotiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and the fact that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed since demand was made upon the defendant. B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition pleading has been filed within the time prescribed by law or by the court.

Comments—2017 (a) This Article has been amended to substitute “preliminary default” for “default judgment” to make the Article more easily understood and to make the terminology consistent within the Article and with other related Articles. A final judgment confirming a preliminary default is now referred to as a “final default judgment.” These amendments are intended to be stylistic only. (b) Paragraph A of this Article has been amended to clarify that a written motion for confirmation of preliminary default is required only if the

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plaintiff is seeking the confirmation without hearing in open court as provided in Article 1702(B)(1) and (C). (c) The filing of the suit constitutes a demand made upon the defendant for the purposes of Paragraph A of this Article. k. CCP Art. 1703 Art. 1703. Scope of judgment A judgment by default final default judgment shall not be different in kind from that demanded in the petition. The amount of damages awarded shall be the amount proven to be properly due as a remedy.

Comments—2017 This Article has been amended to substitute “final default judgment” for “judgment by default” to make the Article more easily understood and to make the terminology consistent with other related Articles. A “judgment of default” or “judgment by default” is now referred to as a “preliminary default.” This amendment is intended to be stylistic only. l. CCP Art. 1704 Art. 1704. Confirmation of judgment by preliminary default in suits against the state or a political subdivision A. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of preliminary default against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment preliminary default entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel to the attorney general by registered or certified mail, or shall be served by the sheriff personally upon the attorney general or the first assistant attorney general at the office of the attorney general. If the minute entry and the petition are served on the attorney general by mail, the person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the attorney general with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails mail. In addition the return receipt shall be attached to the affidavit which was filed in the record. B. If no answer or other pleading is filed during the fifteen days immediately following the date on which the attorney general or the first assistant attorney general received notice of the preliminary default as

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provided in Subsection A of this Section Paragraph A of this Article, a judgment by preliminary default entered against the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article 1702. C. Notwithstanding any other provision of law to the contrary, prior to confirmation of a judgment of preliminary default against a political subdivision of the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities, a certified copy of the minute entry constituting the judgment preliminary default entered pursuant to Article 1701, together with a certified copy of the petition or other demand, shall be sent by the plaintiff or his counsel by registered or certified mail to the proper agent or person for service of process at the office of that agent or person. The person mailing such items shall execute and file in the record an affidavit stating that these items have been enclosed in an envelope properly addressed to the proper agent or person for service of process, with sufficient postage affixed, and stating the date on which such envelope was deposited in the United States mails mail. In addition the return receipt shall be attached to the affidavit which was filed in the record. D. If no answer or other pleading is filed during the fifteen days immediately following the date on which the agent or person for service of process received notice of the preliminary default as provided in Paragraph C of this Article, a judgment by preliminary default entered against the political subdivision of the state or any of its departments, offices, boards, commissions, agencies, or instrumentalities may be confirmed by proof as required by Article 1702.

Comments—2017 This Article has been amended to substitute “preliminary default” for “judgment of default” and “judgment by default” to make the Article more easily understood and to make the terminology consistent within the Article and with other related Articles. A final judgment confirming a preliminary

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default is now referred to as a “final default judgment.” These amendments are intended to be stylistic only.

* * * m. CCP Art. 1843 Art. 1843. Judgment by Final default judgment A final default judgment by default is that which is rendered against a defendant who fails to plead within the time prescribed by law.

Comments—2017 This Article has been amended to substitute “final default judgment” for “judgment by default” to make the Article more easily understood and to make the terminology consistent with other related Articles. A final default judgment is different from a preliminary default, which is nothing more than an entry in the minutes prior to the rendition of a final default judgment and is not itself a judgment. n. CCP Art. 1913 Art. 1913. Notice of judgment

* * * B. Notice of the signing of a final default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state. C. Notice of the signing of a final default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.


This Article has been amended to substitute “final default judgment” for “default judgment” to make the Article more easily understood and to make the terminology consistent with other related Articles. A “judgment of

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default” or “judgment by default” is now referred to as a “preliminary default.” These amendments are intended to be stylistic only.

* * * o. CCP Art. 2002 Art. 2002. Annulment for vices of form; time for action A. A final judgment shall be annulled if it is rendered:

* * * (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid final default judgment by default has not been taken.


Subparagraph (A)(2) of this Article has been amended to substitute “final default judgment” for “judgment by default” to make the Article more easily understood and to make the terminology consistent with other related Articles. This amendment is intended to be stylistic only.

* * * p. CCP Art. 3861 Art. 3861. Definition Mandamus is a writ directing a public officer, or a corporation or an officer thereof, or a limited liability company or a member or

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manager thereof, to perform any of the duties set forth in Articles 3863 and 3864. q. CCP Art. 3864 Art. 3864. Mandamus against corporation or corporate officer; limited liability company or member or manager A. A writ of mandamus may be directed to a corporation or an officer thereof to compel either of the following: (1) The holding of an election or the performance of other duties required by the corporate charter corporation's articles of incorporation or bylaws, or as prescribed by law; or. (2) The recognition of the rights of it's the corporation's members or shareholders. B. A writ of mandamus may be directed to a limited liability company or a member or manager thereof to compel either of the following: (1) The holding of an election or the performance of other duties required by the limited liability company's articles of organization or operating agreement, or as prescribed by law. (2) The recognition of the rights of the limited liability company's members.

* * * r. CCP Art 3901 Art. 3901. Definition Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation or limited liability company, or directing a corporation or limited liability

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company to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers. s. CCP Art. 3902 Art. 3902. Judgment When the court finds that a person is holding or claiming office without authority, the judgment shall forbid him to do so. It may declare who is entitled to the office and may direct an election when necessary. When the court finds that a corporation or limited liability company is exceeding its powers, the judgment shall prohibit it from doing so. t. CCP Art. 3955 Art. 3955. Service of petition

* * * B. If the defendant is an absentee, the request for appointment of a curator ad hoc an attorney to represent the absentee defendant within ninety days of commencement of the action constitutes compliance with the requirements of Paragraph A of this Article.


The purpose of the amendment to Paragraph B of this Article is to align the provision with Article 5091 by replacing “curator ad hoc” with “attorney to represent the absentee defendant.”

* * *

u. CCP Art. 4904 Art. 4904. Judgment by Final default judgment in parish and city courts A. In suits in a parish court or a city court, if the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final default judgment in favor of plaintiff may be rendered. No prior preliminary default is necessary. B. The plaintiff may obtain a final default judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a

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promissory note or other negotiable instrument, no proof of any signature thereon shall be required. C. When the sum due is on an open account, promissory note, negotiable instrument, or other conventional obligation, a hearing in open court shall not be required unless the judge in his discretion directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final default judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the proposed final default judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the final default judgment. A certified copy of the signed final default judgment shall be sent to the plaintiff by the clerk of court.

Comments—2017 This Article has been amended to substitute “preliminary default” for “prior default” and “final default judgment” for “final judgment” and “judgment by default” to make the Article more easily understood and to make the terminology consistent with other related Articles. These amendments are intended to be stylistic only.

* * * v. CCP Art. 4921 Art. 4921. Judgment by Final default judgment; justice of the peace courts; district courts with concurrent jurisdiction A. If the defendant fails to answer timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final default judgment in favor of plaintiff may be rendered. No prior preliminary default is necessary. B. The plaintiff may obtain a final default judgment only by producing relevant and competent evidence which establishes a prima facie case. When the suit is for a sum due on an open account, promissory note, negotiable instrument, or other conventional obligation, prima facie proof may be submitted by affidavit. When the demand is based upon a

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promissory note or other negotiable instrument, no proof of any signature thereon shall be required.

Comments—2017 This Article has been amended to substitute “preliminary default” for “prior default” and “final default judgment” for “final judgment” and “judgment by default” to make the Article more easily understood and to make the terminology consistent with other related Articles. These amendments are intended to be stylistic only. w. CCP Art. 4921.1 Art. 4921.1. Demand for trial; abandonment; applicability

* * * C. (1) Notwithstanding the provisions of Paragraph A of this Article, the justice of the peace or clerk may set the matter for trial upon filing of a petition. The date, time, and location of the trial shall be contained in the citation. The first scheduled trial date shall be not more than forty-five days, nor less than ten days, from the service of the citation. If the defendant appears, he need not file an answer unless ordered to do so by the court. If a defendant who has been served with citation fails to appear at the time and place specified in the citation, the judge may enter a final default judgment for the plaintiff in the amount proved to be due. If the plaintiff does not appear, the judge may enter an order dismissing the action without prejudice. (2) If a matter has been set for trial pursuant to Paragraph Subparagraph (1) of this Article Paragraph, no final default judgement judgment shall be rendered prior to the trial date.

Comments—2017 Paragraph C of this Article has been amended to substitute “final default judgment” for “default judgment” to make the Article more easily understood and to make the terminology consistent with other related Articles. These amendments are intended to be stylistic only. x. CCP Art. 5095 Art. 5095. Same; defense of action The attorney at law appointed by the court to represent a defendant shall use reasonable diligence to inquire of the defendant, and to

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determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof. Except in an executory proceeding, the attorney may except to the petition, shall file an answer or other pleading in time to prevent a final default judgment from being rendered, may plead therein any affirmative defense available, may prosecute an appeal from an adverse judgment, and generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant.

Comments—2017 This Article has been amended to substitute “final default judgment” for “default judgment” to make the Article more easily understood and to make the terminology consistent with other related Articles. This amendment is intended to be stylistic only. y. La. R.S. 13:3205 § 3205. Default judgment; hearings; proof of service of process No preliminary default or final default judgment can may be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either has done any of the following: (1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant; or. (2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier's confirmation of delivery; or. (3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery.

Comments—2017 This Section has been amended to substitute “preliminary default or final default judgment” for “default judgment” to make the provision more easily understood and to make the terminology consistent with related Articles in

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the Code of Civil Procedure. These amendments are intended to be stylistic only. z. La. R.S. 23:1316 § 1316. Answer or other pleading, failure to file; judgment by preliminary default If a defendant in the principal or incidental demand fails to answer or file other pleadings within the time prescribed by law or the time extended by the workers' compensation judge, and upon proof of proper service having been made, judgment by preliminary default may be entered against him. The judgment preliminary default shall be obtained by written motion.

Comments—2017 This Section has been amended to substitute “preliminary default” for “judgment by default” to make the provision more easily understood and to make the terminology consistent with related Articles in the Code of Civil Procedure. A final judgment confirming a preliminary default is now referred to as a “final default judgment.” These amendments are intended to be stylistic only. aa. La. R.S. 23:1316.1(A) Art. 1316.1. Confirmation of judgment by preliminary default A. A judgment by preliminary default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer or other pleading is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of preliminary default.


Paragraph A of this Section has been amended to substitute “preliminary default” for “judgment by default” and “judgment of default” to make the provision more easily understood and to make the terminology consistent with related Articles in the Code of Civil Procedure. A final judgment

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confirming a preliminary default is now referred to as a “final default judgment.” These amendments are intended to be stylistic only. bb. CCP Art. 253 Art. 253. Pleadings, documents, and exhibits to be filed with clerk

* * * E. The clerk shall not refuse to accept for filing any pleading or other document signed by electronic signature, as defined by R.S. 9:2602, and executed in connection with court proceedings, solely on the ground that it was signed by electronic signature.

Comments—2018 Paragraph E is new; however, nothing in this provision is intended to abrogate any specific legislation requiring that certain documents be signed by other than electronic means.

B. District Court Rules The Court approved Appendix 23.0B Family Law Affidavit at http://www.lasc.org/rules/dist.ct/Spring_2017_District_Court_Rule_Amendments_with_Signed_Order.pdf It is effective July 1, 2017.

II. CASE LAW A. United States Supreme Court

Artis v. District of Columbia, 135 A.3d 334 (D.C. Cir. 2016), cert. granted, 137 S. Ct. 1202 (2017) (No. 16–460). Facts: Plaintiff filed suit alleging that her termination from D.C.’s Department of Health violated Title VII of the Civil Rights Act and that the federal district court had supplemental jurisdiction to hear claims based on the D.C. Whistleblower Act, False Claims Act, and a common law claim for wrongful termination against public policy. At the time plaintiff filed in federal court, there were more than two years remaining on the applicable state statute of limitations. The federal court granted the defendant’s motion for judgment on the pleadings as to the Title VII claim, dismissing the sole

http://www.lasc.org/rules/dist.ct/Spring_2017_District_Court_Rule_Amendments_with_Signed_Order.pdf

http://www.lasc.org/rules/dist.ct/Spring_2017_District_Court_Rule_Amendments_with_Signed_Order.pdf

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federal claim as facially deficient. The court also dismissed the remaining claims arising under D.C. law, on the ground that it now lacked jurisdiction to hear the claims. Fifty-nine (59) days after dismissal from federal court, plaintiff filed her remaining claims in the D.C. Superior Court. The trial judge dismissed the claims, finding that the plaintiff exceeded the 30-day period available under 28 U.S.C. § 1367(d) to re-file her claims in state court after an unsuccessful federal filing. Under the court’s interpretation, § 1367(d) does not suspend state statutes of limitation at the time of the filing in district court, but rather it creates a 30-day period to file after a federal court dismissal. Issue: What the word “tolled” means under 28 U.S.C. § 1367(d). Does it effectively mean the same thing as a “suspension” (like a “clock that is stopped and then restarted”) or is it a “grace period” (“allowing claims that would have otherwise become barred to be pursued in state court if refiled no later than 30 days after federal court dismissal”)? Holding and Rationale: The D.C. Circuit, agreeing with other circuits that have decided the issue (Second, Third, and Eleventh), concluded that the “grace period” approach reflects the legislative history and intent, conforms with the general presumption against preemption of state law, and is consistent with the court’s prior interpretation of the statute. The purpose of the Act that created the 30-day period was to “‘prevent the loss of claims to statutes of limitations where state law might fail to toll the running of the period of limitations while a supplemental claim was pending in federal court.’” Artis, 135 A.3d at 338 (quoting H.R. Rep. No. 101-734, 2d Sess., p.30 (1990)). The court was convinced that § 1367(d) was meant to incorporate the American Law Institute’s recommendation that the law should provide litigants with relief from time bar to actions as long as the state claim was filed in federal court at a time when it would not have been barred in state court and then was re-filed in state court within 30 days of the federal dismissal. The court also found that the “grace period” interpretation better accommodates federalism concerns, as it results in significantly less impact on local statutes of limitations than the “suspension” approach. The “grace period” approach also is more in line with the presumption against federal preemption, in that it is a more narrow interpretation of § 1367(d). Finally, the court cited an earlier case, Stevens v. ARCO Management of Wash. D.C., Inc., 751 A.2d 995 (D.C. Cir. 2000), where the court stated that “application of § 1367(d)’s thirty day extension to the ‘local statute of limitations’ was necessary to satisfy the statute’s purpose of allowing litigants to ‘economically resolve related matters in a single forum’ and ‘increase the administrative efficiency of the civil litigation process.” Artis, 135 A.3d at 339 (quoting Stevens, 751 A.2d at 996 & 1002) (emphasis in original). The

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court affirmed the ruling of the trial court and dismissed the plaintiff’s claims for failing to comply with the applicable statute of limitations.

B. Supreme Court of Louisiana

1. JNOV/New Trial Pitts v. Louisiana Med. Mut. Ins. Co., 2016-1232 (La. 5/1/17), 218 So. 3d 58. Facts: A seven-month old child was taken to the emergency room. The baby was treated for hours, her condition worsened, and she died from myocarditis (inflammation of the heart). Parents filed a request for medical review panel, alleging the emergency room doctor committed medical malpractice, breaching in that he failed to transfer the infant to a facility with a higher level of care. The panel unanimously found a breach, and the parents sued the doctor for medical malpractice. After trial the jury returned a verdict for the defendant doctor, finding that plaintiff did not prove a breach. Plaintiffs moved for a JNOV or alternatively a new trial. The district court concluded that the jury got it totally wrong, being completely confused about the applicable standard of care for an emergency room doctor at a semirural hospital. The trial court granted a JNOV, and in the alternative, conditionally granted a new trial. The court of appeal reversed, finding that, given the conflicting expert testimony, a reasonable person could conclude that the plaintiffs did not establish a breach. Issue: Whether the trial court erred in granting a JNOV, and conditionally, a new trial. Holdings and Rationales: (1) The trial court erred in granting a JNOV. The Supreme Court explained that a “JNOV is a procedural device authorized by La. C.C.P. art. 1811, by which the trial court may modify the jury’s findings to correct an erroneous jury verdict.” Pitts, 218 So. 3d at 64. In evaluating a trial court’s grant of JNOV, an appellate court must use the criteria the same way the trial judge did in deciding whether to grant the motion—the court must determine whether facts and inferences favor the moving party “so strongly and overwhelmingly” that reasonable persons could not reach the verdict reached by the jury. Id. at 65. Stated differently, if reasonable persons could reach the verdict that the jury did, then the JNOV should be overturned and the jury verdict should be reinstated. Under this “rigorous standard” and the fact

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that it is not the province of the district court to evaluate the credibility of the witnesses, the court of appeal did not commit error in setting aside the JNOV. Based on the evidence, a reasonable person could have concluded that the plaintiffs did not establish a breach by the doctor by a preponderance of the evidence. (2) The trial court did not commit error in conditionally granting a new trial. La. C.C.P. art. 1972 provides peremptory grounds for granting a new trial, one of which is “when the verdict or judgment appears clearly contrary to the law and evidence.” Art. 1973 grants the trial court discretionary authority to grant a new trial “in any case if there is good ground therefor, except as otherwise provided by law.” Accordingly, the Court has held that a trial court should grant a new trial “[w]hen the trial judge is convinced by his examination of the facts that the judgment would result in a miscarriage of justice.” Id. at 65. Although not stated in exactly this way, the trial court’s reasons suggest that it found the verdict clearly contrary to the law and the evidence. The standard for granting a new trial is less stringent than that for granting a JNOV. Unlike with a JNOV, with a new trial the trial judge may evaluate the evidence and draw his own inferences and conclusions and may evaluate witness credibility. Yet, the motion cannot be granted and the verdict set aside for a new trial if the verdict is “supportable by any fair interpretation of the evidence.” Id. at 66. The standard of review on appeal is abuse of discretion. Review of a grant of a new trial involves balancing the deference accorded to the jury and that given to the trial court. The trial court has much discretion, and the only requirement is that the trial court state an “articulable reason or reasons” for so exercising its discretion. Id. at 66. The Court reviewed the testimony and concluded that the trial court did not abuse its discretion in granting a new trial, as the articulated reason, that the jury was completely confused about the standard of care applicable to an emergency room doctor in a semirural hospital, was supported by the record.

Justice Weimer concurred in the reversal of the JNOV but dissented from the affirmance of the new trial. He noted that the trial judge commented that the jury verdict was supportable by a fair interpretation of the evidence. Given the conflict in expert testimony, Justice Weimer found it an abuse of discretion for the trial court if it concluded that the verdict was

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“so far contrary to the law and the evidence that it offends the conscience.” Thus, a new trial was not warranted under the peremptory ground in art. 1972(1). Under art. 1973, the trial court has much discretion to grant a new trial, but the court is required to state a reason why it is exercising that discretion to grant a new trial. Given the trial court’s statement about the jury being completely confused about the applicable standard of care, Justice Weimer explained that this amounted to disagreement with the jury verdict, which is not a good ground under art. 1973. Thus, Justice Weimer found neither peremptory nor discretionary grounds for the trial court’s granting a new trial. Justice Clark joined the concurring and dissenting opinion for the reasons stated by Justice Weimer.

Justice Guidry, concurring, wrote that he agreed with the majority’s holding to affirm the trial court’s granting of a new trial. Nonetheless, he objected to the language in a case cited by the majority that the trial court has “virtually unlimited discretion to grant a new trial.” Id. at 80 (Guidry, J., concurring) (quoting Horton v. Mayeaux, 05-1704 (La. 5/30/06), 931 So. 2d 338). Justice Guidry found that phrase inconsistent with art. 1973, of uncertain origin, and “an incorrect statement of the law.” Id. at 80. (Guidry, J., concurring). However, under the correct standard, abuse of discretion, Justice Guidry agreed with the majority that the trial court did not abuse its discretion in granting a new trial.

2. Arbitration Duhon v. Activelaf, LLC, 2016-0818 (La. 10/19/16), 2016 WL 6123820. Facts: Plaintiff had gone to an indoor trampoline park and was injured. Before entering the park, plaintiff had completed on computer a “Participant Agreement and Assumption of Risk,” which waived the right to jury trial and compelled arbitration. Plaintiff was injured and filed a lawsuit. Defendant filed an exception of prematurity, seeking to compel arbitration. The district court overruled the exception and permitted the lawsuit to proceed, finding that there was a lack of mutuality, with only plaintiff being required to arbitrate. The court of appeal reversed, holding that the arbitration agreement should be enforced.

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Issue: Whether the mandatory arbitration agreement was unenforceable on general contract principles of consent and adhesion. Holding and Rationale: Yes, it was unenforceable. Both Louisiana and federal law favor the enforcement of arbitration agreements. The Louisiana Binding Arbitration Law (LBAL), La. R.S. 9:4201, expresses the strong legislative policy favoring arbitration. That expression echoes that in the Federal Arbitration Act (FAA). Because the LBAL is virtually identical to the FAA, determination regarding enforceability and scope of arbitration agreements is the same under both. There is a savings clause in the FAA under which, according to the U.S. Supreme Court, general state contract principles apply to evaluate the validity and enforceability of arbitration agreements. The savings clause does not, however, permit courts to invalidate agreements under a state law applicable to only arbitration provisions. The Court said that the fact that the arbitration agreement was electronic is of no legal consequence, as Louisiana gives legal effect to both electronic contracts and signatures. La. R.S. 9:2607. The Court relied on Aguillard v. Auction Management Corp., 04-2804 (La. 6/29/05), 908 So. 2d 1, for its analysis of whether an arbitration agreement is adhesionary. In Aguillard, the Court concluded that the arbitration agreement was not adhesionary and was enforceable because (1) the arbitration agreement was in a short, two-page document and was in a single-sentence paragraph; (2) it was not concealed; (3) it did not lack mutuality because the defendants did not reserve their right to litigate; and (4) the parties did not have a significant difference in bargaining power. The Court distilled from this four factors to be applied to determine the validity and enforceability of an arbitration agreement: (1) the physical characteristics; (2) the distinguishing features; (3) the mutuality; and (4) the relative bargaining strength of the parties. Applying those factors to the agreement in this case, the Court concluded that the concealment of the arbitration clause and the lack of mutuality rendered it adhesionary and unenforceable. Dissenting, Justice Weimer, agreed with the four considerations from Aguillard, but he disagreed as to their application to the agreement at issue in this case. Concurring, Justice Clark noted that not only did the arbitration agreement lack mutuality, but it provided that if a patron filed a lawsuit, that patron was liable for $5,000 in liquidated damages.

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Concurring, Justice Hughes agreed that the agreement lacked mutuality, but disagreed that the arbitration language was hidden. Concurring, Justice Crichton emphasized that the decision does not represent a rejection of arbitration agreements. Rather, the “blatant asymmetries” in this agreement “exhibit a stunning lack of draftsmanship” and fail the factors articulated in Aguillard.

3. Subject Matter Jurisdiction

Huval v. State of La., 2016–1857 (La. 5/3/17), 222 So. 3d 665. Facts: Plaintiffs, two state police officers, were investigated for alleged violations of employment policy and state law. They were terminated. The State Police Commission overturned the terminations and ordered suspensions. On appeal, the First Circuit reinstated one termination and affirmed a suspension. Plaintiffs then filed a petition in state district court asserting claims for wrongful termination, defamation, malicious prosecution, mental anguish, intentional infliction of emotional distress, and all general and equitable relief. Defendant filed the exception of lack of subject matter jurisdiction arguing that the state constitution in art X, § 50 vests exclusive jurisdiction in the State Police Commission to hear all cases involving terminations of employees employed by the State Police. The district court overruled the exception. The First Circuit on a writ application, after remand from the Louisiana Supreme Court, affirmed the trial court’s decision to overrule the exception. Issue: Whether the district court had subject matter jurisdiction to hear plaintiff’s tort claims. Holding and Rationale: Yes. Although the state constitution in art. X, § 50 grants exclusive jurisdiction to the State Police Commission over termination decisions, the Commission is powerless to award damages such as the tort damages sought by plaintiffs. “This is a civil matter pursuant to Article V, § 16(A)(1) involving an exercise of judicial power” over which the district court had subject matter jurisdiction. Huval, 222 So. 3d at 672.

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4. Medical Malpractice

Correro v. Ferrer, No. 2016-C-0861 (La. 10/28/16) (per curiam), 216 So. 3d 794 , reh’g denied, 211 So. 3d 1163 (La. 12/16/16). Facts: The plaintiff in a medical malpractice suit requested a medical review panel against her surgeon and the hospital where her surgery was performed for the surgeon’s negligence in making an incision on the wrong hip. The surgeon waived the panel proceeding and was dismissed from the suit. Plaintiff’s counsel then filed an amended complaint naming two individuals identified as non-employees of the hospital involved in the surgery (a physician’s assistant and a certified registered anesthetist). The first panel subsequently found that the hospital breached its standard of care. The PCF informed plaintiff it had converted the amended complaint against the two non-employees into a separate request for a MRP (MRP-2). Over one year after the dismissal of the surgeon from the suit and eight months after the panel decision regarding the hospital, the plaintiff filed suit against the surgeon and the hospital. After the timeliness of the claim was challenged, the plaintiff alleged that prescription had been interrupted or suspended as to the hospital and the surgeon by the continuing pendency of the medical review panel against the other joint and solidary obligors, i.e., the two nonemployees. Issue: “[W]hether a timely filed amendment to a medical review panel (“MRP”) complaint can be converted into a new complaint (“MRP-2”) by the Department of Administration (“DOA”), which would end suspension on the initial complaint (“MRP-1”) causing plaintiff's claims against the first named healthcare providers to prescribe while the second complaint is still pending against alleged joint and solidary obligors.” Holding: No. “[W]here an administrative decision directly affected the tolling period to the detriment of plaintiff's tort rights, prescription on plaintiff's claims remained suspended as to all joint and solidary obligors while the MRP-2 proceeding was still pending against alleged joint and solidary obligors.” Coulon v. Endurance Risk Partners, Inc., 2016-1146 (La. 3/15/17), 221 So. 3d 809. Facts: In request for medical review panel, plaintiffs alleged that the defendants “failed to develop, maintain, and enforce proper policies and procedures to prevent surgical infections,” and plaintiff alleged respondeat superior liability of surgery center for actions of employees. In petition in

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subsequent lawsuit, plaintiffs alleged “[f]ailure to supervise the nurses” and “[f]ailure to train the nurses” who treated plaintiff. Defendant filed partial exception of prematurity, arguing that plaintiffs did not allege the same claims in complaint to medical review panel. Issue: Whether complaint to medical review panel adequately pled the malpractice alleged in the petition in the subsequent lawsuit. Holding and Rationale: Yes. The statutory standard for the medical review panel complaint is “[a] brief description of the alleged malpractice as to each named defendant.” La. R. S. 40:1231.8 (A)(1)(b)(vi). The Court stated that a complaint to a medical review panel “is not a fact pleading which requires the same specificity as a petition in a lawsuit.” The Court found the allegation that the surgery center did not “enforce proper policies and procedures to prevent surgical infections” was sufficient to encompass claims asserted in litigation that surgery center did not adequately train and supervise the nurses who cared for plaintiff. In alleging both direct and vicarious liability in the medical review panel complaint, it followed that plaintiffs were seeking review of all policies, procedures, and employee conduct that could have led to plaintiff’s infection.

C. Courts of Appeal

1. Appeals Stewart v. City of Bogalusa, 2015-1877 (La. App. 1 Cir. 8/5/16), 199 So. 3d 651. Facts: In a disputed workers’ compensation claim, the employer moved for partial summary judgment on the issue of whether the claimant was totally and permanently disabled. Following a hearing, the judge granted the partial summary judgment on permanent and total disability benefits and ordered that all remaining claims would proceed. OWCA issued a notice of signing an interlocutory judgment in a workers’ compensation case. The claimant filed a writ application, which was denied, and then filed a motion for devolutive appeal requesting that the judgment be certified as final and appealable. The workers’ compensation judge designated the judgment as final and appealable pursuant to La. CCP art. 1915(B), stating that “there is no just reason to delay” the appeal, but he did not provide any reasons for the designation.

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Issue: Whether the workers’ comp judge erred in designating the partial summary judgment as final and appealable. Holding and Rationale: Yes. When a judge does not give reasons for certifying a judgment as final and appealable, the appellate court conducts a de novo review. The First Circuit began with the general policy against piecemeal appeals, which must be balanced against making review available at a time that best serves the needs of the parties. In the context of workers compensation proceedings, permitting immediate appeal of partial judgments generally is disfavored as contrary to the goals and procedures of the Louisiana Workers’ Compensation Act, which are designed to have the WC judge decide the merits of the controversy equitably, summarily, and simply. The employer admitted in this case that there were other issues remaining to be resolved. Given the significance of outstanding matters and the goals and procedures of the Workers’ Comp Act, the court held that the judge erred in designating the partial summary judgment as final and appealable. Fiveash v. Pat O’Brien’s Bar, Inc., 2015-1230 (La. App. 4 Cir. 9/14/16), 201 So. 3d 912. Facts: Plaintiff sued defendant for a fall on a deteriorating tile step leading to the piano bar. While the lawsuit was pending, the step was significantly damaged by a garbage can being pulled over it. After communications between counsel, defendant repaired the step. Plaintiff amended her petition to add a claim for intentional spoliation of evidence. Defendant moved for partial summary judgment on the spoliation claim. The trial court granted partial summary judgment in favor of defendant, and plaintiff filed an appeal. Issue: Whether appeal was properly before the court. Holding and Rationale: No. The partial summary judgment dismissed only plaintiff’s spoliation claim, not her liability claim. The trial court did not designate the partial summary judgment as final and appealable. Because plaintiff’s appeal was filed within the time period for filing an application for a supervisory writ, the Fourth Circuit invoked its supervisory jurisdiction, converting the appeal to a writ. Walker v. Archer, 2016-0171, 2016-0172 & 2106-0173 (La. App. 4 Cir. 10/5/16), 203 So. 3d 330. When a trial court fails to give reasons for a determination under CCP art. 1915(B), the appellate court may either request a per curiam opinion from the trial judge to assist review or issue a rule to show cause to the parties to explain why the appeal should not be dismissed. In evaluating the propriety of a certification of a partial judgment, the court considers the four nonexclusive

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factors from R.J. Messinger, Inc. v. Rosenblum, 04–1664 (La. 3/2/05), 894 So. 2d 1113:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the trial court might be obliged to consider the same issue a second time; and (4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Messinger, 894 So. 2d at 1122-23. The overarching question is “whether there is no just reason for delay. Id. Fruge Aquafarms, Inc. v. Hicks, 16–1001(La. App. 3 Cir. 5/3/17), 218 So. 3d 1106. Neither party properly introduced evidence at trial. The trial court appeared to rely on a lease attached to plaintiff’s petition. At the trial, there was discussion and arguments of counsel, but no introduction of evidence. “The trial never commenced in this case, as the trial court rendered judgment without any evidence being formally introduced into the record. Therefore, the ruling of the trial court is without proper foundation, and the judgment is, hereby, reversed.” Fruge Aquafarms, 218 So. 3d at 1113. “Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. La.Code Civ.P. art. 2164.” Fruge, 218 So. 3d at 1111. Nabors Offshore Corp. v. Caterpillar, Inc., 2016-0003 (La. App. 4 Cir. 11/30/16), 204 So. 3d 1068.

[A] denial of a writ application is of no precedential value, regardless of the reasons assigned. That is, a writ denial is not precedential for any purpose; it is merely a statement that the court is declining to exercise its supervisory jurisdiction to review the issues addressed at that time. . . . In general, the denial of supervisory writs does not bar a different conclusion or reconsideration of the same issue argued in the writ application when an appeal is taken from a final judgment. . . . And the granting of a supervisory writ does not necessarily bar a different conclusion or reconsideration of the same issue when an appeal

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is taken, although the granting of a supervisory writ in the appropriate case might have more weight.

Nabor Offshore, 204 So. 3d at 1071-72

2. Judgments Morraz-Blandon v. Voiron, 16-112 (La. App. 5 Cir. 8/25/16), 199 So. 3d 1220. Facts: Following bench trial in vehicular hit-and-run case, judge recessed, making no factual findings. Judge did not return after recess to render judgment. Record reflects that judgment was given in open court by the civil minute clerk. The written judgment signed by the judge stated as follows: “Considering the law and the evidence, this Court finds no liability on the part of the Defendants. Therefore IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Judgment be entered in favor of Defendants.” Issue: Whether judgment was valid. Holding and Rationale: No. The judgment did not precisely and definitively state the relief granted or denied. It did not dismiss the plaintiffs’ petition or find in favor of all defendants. From the face of the judgment it was not clear whether the judge considered plaintiffs’ UM claims or simply considered the liability claims against the owners of the other vehicle. Thus, the specific relief granted or denied could not be determined from the face of the language of the judgment. Because the court had not issued a valid, final judgment, the appellate court lacked jurisdiction and dismissed the appeal and remanded. Urquhart v. Spencer, 2015–1354 (La. App. 4 Cir. 12/1/16), 204 So. 3d 1074. Judgment was not valid final appealable judgment because in a multiple defendant case the judgment must name the defendant against whom the judgment is rendered and it must contain decretal language indicating the degree of fault of each defendant as a percentage. Roebuck v. Roebuck, 2106-0221 (La. App. 4 Cir. 8/7/16), 198 So. 3d 1210, writ denied, 2016–C–1884 (La. 12/5/16), 210 So. 3d 809. Facts: Wife filed for divorce. She requested that service be held. Husband later accepted service from the clerk of court’s office. When he did not answer, she took a preliminary default and an order of divorce was signed by the court. Husband then filed a motion to annul the judgment under CCP Arts.

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2002 and 2004. The motion revealed to the court that the husband had first filed for divorce in Mississippi and that proceeding was pending. Husband argued that failure to attempt legal service renders a judgment a nullity under Art. 2002 for vice of form; the court failed to hold that concealment of court records from husband rendered the judgment relatively null under Art. 2004 for fraud or ill practice; the court’s untimely rendering of judgment on husband’s nullity motion is cause to reverse; and the court’s failure to continue the divorce proceeding while the Mississippi case was pending was cause to reverse. Issues: (1) Whether the judgment of divorce should be declared a nullity under Art. 2004. (2) Whether the judgment should be annulled under Art. 2002. Holdings and Rationales: (1) No. A judgment cannot be collaterally attacked in a nullity action pursuant to art. 2004 in the existing proceedings but must be brought by new and separate proceedings in the court that rendered the judgment. Thus, the procedure was improper. (2) No. One of the reasons for annulling a judgment is that defendant was not served with process as required by law and defendant has not waived objection to jurisdiction or against whom a valid default judgment was not taken. Because the husband accepted service from the clerk and preliminary default was granted and confirmed, that ground in Art. 2002 was not satisfied. Under Art. 2002 a judgment is to be annulled if the court lacks subject matter jurisdiction. The district court determined that it had subject matter jurisdiction because at least one spouse was living in Louisiana and was domiciled in the parish. The husband also did not contend or offer proof that he was incompetent, another ground for annulment in Art. 2002. Finally, the court’s failure to continue the proceedings while the Mississippi divorce case was pending was not a ground covered in Art. 2002, and the court was under no obligation to continue the matter. Llopis v. State, 2016–0041 (La. App. 4 Cir. 12/14/16), 206 So. 3d 1066, writ denied, 2017–0202 (La. 3/24/17), 217 So. 3d 355. Facts: Court denied exceptions of no cause of action, res judicata, and improper service. Defendants filed a motion for new trial of the exceptions. The trial court granted the motion and reversed its prior ruling and sustained the exception of no cause of action. Issue: Whether the court erred in granting a new trial on denial of exceptions.

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Holding and Rationale: Yes. A judgment denying the exception of no cause of action is an interlocutory judgment, and there is no procedure to apply for a new trial of an interlocutory judgment. The proper device to obtain review is an application for a supervisory writ. Riddle v. Premier Plaza of Monroe, LLC, 51,173 (La. App. 2 Cir. 2/15/17), 216 So. 3d 170. Facts: Event planner sued symphony orchestra and Premier Plaza. Judgment was rendered against plaintiff and in favor of defendants. Plaintiff learned that judge had served on symphony orchestra board. Plaintiff moved to annul the judgment under CCP art. 2004. She claimed that the judgment had been obtained by ill practice because there was a mandatory ground of recusal under CCP art. 151. Petition to annul was tried and decided against plaintiff. Issue: Whether judgment should have been annulled for ill practices. Holding and Rationale: Yes. Serving as a board member for any organization necessarily evidences a personal interest of a substantial nature. A finding of ill practices does not require a determination of intent. The trial judge’s failure to recuse herself was an unintentional ill practice, and the trial court abused its discretion in failing to annul the judgment. Ernest N. Morial New Orleans Exhibition Hall Auth. v. New Limits, LLC, 2016-0706 (La. App. 4 Cir. 4/5/17), 215 So. 3d 974. Issue: Whether certificate requirement (for default) under La. CCP Art. 1702.1 is discretionary or mandatory when the record contains all the necessary elements of proof to satisfy the Code requirements for confirmation of a default judgment. Holding and Rationale: It is mandatory, and strict compliance is required. Failure to submit the certificate required by art. 1702.1 is fatal. The Second Circuit has rendered decisions holding that strict compliance with the certificate requirement is not required if there is proof in the record for each element. The Fourth Circuit was not persuaded by the Second Circuit decisions.

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3. Summary Judgment Williams v. Archer Western Constr., LLC, 2016-0158 (La. App. 4 Cir. 10/5/16), 203 So. 3d 325. Fourth Circuit reversed granting of summary judgment because it determined that the trial court made a credibility determination and accepted as true the version of the facts offered by occupants of vehicle. “‘A trial court cannot make credibility determinations on a motion for summary judgment.’” Williams, 203 So. 3d at 330 (quoting Hutchinson v. Knights of Columbus, Council No. 5747, 2003–1533, p. 8 (La. 2/20/04), 866 So. 2d 228, 234)). Fiveash v. Pat O’Brien’s Bar, Inc., 2015-1230 (La. App. 4 Cir. 9/14/16), 201 So. 3d 912. Facts: Plaintiff sued defendant for a fall on a deteriorating tile step leading to the piano bar. While the lawsuit was pending, the step was significantly damaged by a garbage can being pulled over it. After communications between counsel, defendant repaired the step. Plaintiff amended her petition to add a claim for intentional spoliation of evidence. Defendant moved for partial summary judgment on the spoliation claim. The trial court granted partial summary judgment in favor of defendant, and plaintiff filed an appeal. Issue: Whether trial court erred in granting summary judgment. Holding and Rationale: Yes. The only evidence offered on the issue of intent was the affidavits offered by defendant. The truthfulness of the sworn statements involves a credibility determination and cannot be resolved on summary judgment. The trial court erred in weighing the evidence and determining the evidence that it found persuasive on summary judgment. Billiot v. Angelle, 2016-436 & 2016-435 (La. App. 3 Cir. 11/30/16), 209 So. 3d 106. Facts: Trial court granted summary judgment in favor of defendant in a case involving a fire in a barn that killed a horse. Expert witness rendered an opinion in his deposition testimony on the cause of the fire that he did not give in his expert report. Issue: Whether the trial court erred in granting summary judgment for defendant. Holding and Rationale: No. Expert’s testimony established that there was no genuine issue of material fact. The court was not troubled that expert rendered an opinion in his deposition testimony that he did not give in his report: “[W]e find the lack of an opinion in [expert’s] report to be of no moment. It is

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common, in the court's experience, for experts to omit opinions in reports that they freely express in testimony.” Billiot, 209 So. 3d at 110. Roadrunner Transp. Sys. v. Brown, 2017-0040 (La. App. 4 Cir. 5/10/17), 219 So. 3d 1265. Facts: Case involved insurance coverage dispute. Defendant insurance company moved for summary judgment based on contract exclusion. Plaintiff opposed the summary judgment and agued in part that it had not been allowed adequate discovery. The court granted the summary judgment. Issue: Whether the court erred in granting the summary judgment. Holding and Rationale: Yes. When a party alleges that discovery is incomplete, a trial court has discretion to hear the motion or grant a continuance, and its decision is reviewed under an abuse of discretion standard. The jurisprudence has identified four relevant factors in considering whether to grant a continuance: (1) whether the party was ready to go to trial; (2) whether the party indicated what additional discovery is needed; (3) whether the party took any steps to conduct additional discovery during the period between filing the motion and the hearing; and (4) whether the discovery was raised in the trial court before entry of summary judgment. Roadrunner Transp., 219 So. 3d at 1273. The court also has recognized that a factor may be that discovery is hindered by a circumstance beyond the party’s control. Such a circumstance should be documented in the record—expressed in a motion to continue, motion to compel, or other pleading. In this case, the inability of plaintiff to locate the insured was such a circumstance. The trial court in granting the summary judgment had soley relied upon the timeline of procedural events in the case. It should have considered other factors, including the unserved, absent defendant-insured. Randazzo v. St. Bernard Parish Gov’t, 2016-0902 (La. App. 4 Cir. 5/17/17), 219 So. 3d 1128, reh’g denied 5/31/17. Facts: Defendants moved for summary judgments and submitted as exhibits to their motions parts of depositions taken in another case. Plaintiff was not given notice of the depositions or an opportunity to cross-examine the deponents. The trial court granted all of the summary judgment motions. Issue: Whether the court erred in admitting depositions taken in another case for purposes of summary judgment.1 Holding and Rationale: Yes. Stapling documents to a motion for summary judgment “does not ‘magically’ transform them into competent summary

1 The applicable version of Art. 966 was the pre-2016 version.

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judgment evidence.” Randazzo, 219 So. 3d at 1132. La. CCP art. 1450 provides that depositions in whole or in part “may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof.” No one contended that plaintiff was present at, represented at, or given notice of the depositions, so the admission of parts of the depositions was an error. Admitting them affected plaintiff’s substantive rights, so the admission of the depositions was reversible error. Without the partial depositions there was not sufficient evidence to establish that plaintiff lacked factual support for her claims, so the summary judgments were reversed. Raborn v. Albea, 2016-1468 (La. App. 1 Cir. 5/11/17), 221 So. 3d 104. Facts: In medical malpractice action, defendant doctor moved for summary judgment. Plaintiff submitted in opposition uncertified medical records. Defendant moved to strike the opposition. Before the hearing on the motion, plaintiff attempted to file a sur-reply on the motion for summary judgment with a complete and properly certified copy of his medical records. The court granted defendant’s motion to strike the sur-reply and attached opposition evidence. Issues: (1) Whether the trial court erred in striking the uncertified medical records. (2) Whether the trial court abused its discretion in refusing to allow plaintiff to supplement his opposition to the motion for summary judgment. Holdings and Rationales: (1) No. CCP art. 966 (A)(4) provides an exclusive list of documents that may be filed in support of and in opposition to a motion for summary judgment: pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. The medical records attached as exhibits by plaintiff did not meet the certification requirements of La. R.S. 13:3714(A). (2) No. Plaintiff did not attempt to supplement an opposing document pursuant to CCP art. 967(A)2; instead, he attempted to supplement the opposition itself by submitting a sur-reply with properly certified medical records attached. Art. 966 does not recognize a sur-reply to a motion for summary judgment. Furthermore, even if plaintiff’s attempted supplementation were permissible under arts. 966 and 967, the trial court could have excluded the proffered evidence because it was untimely under art.

2 “. . . . The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.”

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966(B), which requires opposition evidence to be filed and served not later than 15 days before the hearing on the motion. The timelines are mandatory, and evidence that does not comply may be ruled inadmissible and excluded by the court. Raborn, 221 So. 3d at 113 (citing Buggage v. Volks Constructors, 06-0175 (La. 5/5/06), 928 So. 2d 536). Baez v. Hosp. Serv. Dis. No. 3 of Allen Parish, 16-951 (La. App. 3 Cir. 4/5/17), 216 So. 3d 98. Issue: Whether trial court abused discretion in denying motion to file surreply on motion for summary judgment. Holding and Rationale: No. CCP art. 966(B) does not provide for the filing of a surreply memorandum, and 966(B)(3) does not permit the filing of additional documents with a reply. Even if 966 permitted the filing of a surreply, the attempted filing was untimely, as not filed five days before the date of the hearing. The court noted that under CCP art. 5059(3) if a period is less than seven days, legal holidays are not included. Price v. Chain Elec. Co., 16–597 (La. App. 5 Cir. 4/12/17), 216 So. 3d 388. Issue: Whether documents attached to a reply memorandum in support of a motion for summary judgment were properly admitted and considered. Holding and Rationale: No. Under the language of CCP art. 966, both before and after the 2015 amendments, only documents attached to the summary judgment and opposition are deemed admitted—not those attached to a reply memorandum. The trial court should not have considered those documents and the court of appeal could not consider them in its de novo review. Without those documents, there was insufficient evidence to establish that defendant was entitled to summary judgment on its statutory employer defense. Dixon v. Gray Ins. Co., 17-29 (La. App. 5 Cir. 6/15/17), 2017 WL 2590536 (not yet released for publication). Facts: Plaintiff was thrown from his motorcycle after striking the rear of a vehicle and claimed that defendants were responsible when driver of truck struck him while he was lying on pavement. Plaintiff sued multiple defendants. Defendant A moved for summary judgment, arguing there was no evidence that the truck driver ran over plaintiff. The trial court granted the summary judgment. Plaintiff filed a motion for appeal but dismissed the appeal before the record was lodged. Defendant B appealed, arguing that the trial court erred in granting summary judgment and arguing that there was a genuine issue of material fact as to whether the truck driver struck plaintiff and that comparative fault of the dismissed defendant, who was found without

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fault on summary judgment, is a determination that should be made by the trier of fact. Issue: Whether a defendant could appeal a summary judgment dismissing a codefendant when the plaintiff did not file a timely appeal but the defendant did. Holding and Rationale: No. The summary judgment finding Defendant A free of fault was final. When plaintiff did not appeal or answer the appeal, the summary judgment became final between plaintiff and Defendant A, and the appellate court had no authority to determine whether the grant of summary judgment was correct. Under CCP art. 966(G), if a summary judgment determines that a party or nonparty is not negligent, is not at fault, or did not cause the injury, that party or nonparty shall not be considered in any subsequent allocation of fault, and evidence shall not be admitted to establish such fault, and no party or person may refer to such fault nor shall that issue of fault be submitted to the jury or included on the jury verdict form. If 966(G) were interpreted as applying only between plaintiff and Defendant A, it would lead to the “absurd result” that Defendant B could argue and present evidence of Defendant A’s fault, but plaintiff could not. Dissenting Judge Gravois disagreed with the majority that plaintiff’s dismissal of his appeal precluded Defendant B from appealing the trial court’s granting of summary judgment to Defendant A. Dixon, __ So. 3d at __ (Gravois, J., dissenting). The dissent reasoned that art. 966(G) does not address the appealability of summary judgments and does not change the result in Grimes v. Louisiana Mut. Ins. Co., 10-0039 (La. 5/28/10), 36 So. 3d 215, which held that “the co-defendants' filing of an appeal from the summary judgment ‘brought up on appeal the portions of the judgment that were adverse to [them].’” Grimes, 36 So. 3d at 217 (quoting Nunez v. Commercial Union Ins. Co., 00–3062 (La. 2/16/01), 780 So. 2d 348, 349). The dissent saw nothing in 966(G) that prevents Defendant B from appealing the adverse ruling on summary judgment. The summary judgment was not final as to Defendant B because it timely appealed the judgment. The dissent cited the First Circuit’s decision in Stafford, infra, noting “[i]nterestingly in Stafford, Article 966(G) was not mentioned at all, even though it was in effect . . . .” Dixon, __ So. 3d at __ (Gravois, J., dissenting).

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Stafford v. Exxon Mobile Corp., 16-1067 (La. App. 1 Cir. 2/17/17), 212 So. 3d 1257, writ denied, 2017–C–0447 (La. 4/24/17), 221 So. 3d 67 (three justices would have granted the writ). Facts: In a case with a plaintiff and multiple defendants, Defendant A obtained a summary judgment against plaintiff. Other defendants appealed that summary judgment. The First Circuit noted to begin with that the summary judgment granted to Defendant A was final as between plaintiff and Defendant A because plaintiff did not appeal the trial court’s granting of summary judgment and did not answer defendants’ appeal. Therefore, dismissed Defendant A could not be cast in judgment on plaintiff’s main demand. Nonetheless, the purpose of the remaining defendants’ appeal was that they may reduce their liability to plaintiff under CC art. 2323 comparative fault by establishing the fault of dismissed Defendant A. The court relied on Nunez and Grimes. After assessing the record in light of the assignments of error, the First Circuit affirmed summary judgment for Defendant A. Kilber v. PNK (Lake Charles), LLC, 16-173 (La. App. 3 Cir. 9/28/16), 201 So. 3d 943. Summary judgment motions can be re-urged. Under Monumental Life Insurance Co. v. Landry, 02–891, p. 2 (La. App. 3d Cir. 2/19/03), 846 So. 2d 798, 800, a re-urged motion for summary judgment on the same issue must be supported by “meaningful additions which clearly establish that there is no longer any issue of material fact to be determined by a trial on the merits.” Monumental Life, 846 So. 2d at 800.

4. Trial Bell v. Carencro Nursing Home, Inc., 16-190 (La. App. 3 Cir. 9/28/16), 202 So. 3d 499, writ denied, 2016–C–1918 (La. 12/16/16), 212 So. 3d 1170. Facts: In trial of slip-and-fall case, during plaintiff’s case-in-chief, start of trial was delayed waiting for arrival of plaintiff’s final witness. During that time, defense counsel suggested reading defense witness’s deposition testimony to the jury “to make the most of the jury’s time.” Without objection, this was done. At the close of plaintiff’s case in chief, defendant moved for directed verdict, and the trial court granted it. Issue: Whether trial court committed error in considering defendant’s out-of-turn testimony in granting a directed verdict.

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Holding and Rationale: Yes. Under La. CCP art. 1810(A), a directed verdict can be requested “at the close of the evidence offered by an opponent[].” The First Circuit reversed a directed verdict in a similar situation in Collett v. Branch, 516 So. 2d 450, 452 (La. App. 1 Cir.1987), writ denied, 520 So.2d 752 (La. 1988). A Third Circuit panel reached a different result based on the absence of a formal objection to the out-of-turn testimony in Bernard v. Ferrellgas, Inc., 96–621 (La. App. 3d Cir. 2/5/97), 689 So. 2d 554. In this case, the Third Circuit panel noted that there was not a formal assignment of error, but stated that under La. CCP art. 2164, it has the authority to render any judgment that is “just, legal, and proper” based on the record. The court reversed the grant of directed verdict and remanded. Deykin v. Oschner Clinic Found., 16-488 (La. App. 5 Cir. 4/26/17), 219 So. 3d 1234. Facts: At close of medical malpractice wrongful death case, plaintiff proposed a jury charge on lost chance of survival. The trial judge did not give that charge. The judge read the jury instructions and interrogatories before closing arguments and asked if there were any objections. Plaintiffs’ counsel made no objection, and in fact said, “Your Honor, we’re satisfied with the jury instructions and the jury interrogatories.” Issue: Whether trial court committed “plain and fundamental” error in not giving jury instruction and jury interrogatory on lost chance of survival in absence of a contemporaneous objection by counsel. Holding and Rationale: No. Under La. CCP art. 1793(C), failure to object either before the jury retires or immediately after waives raising as an assignment of error failure to give an instruction unless, according to the jurisprudence, there is a “plain and fundamental” error. Berg v. Zummo, 00-1699 (La. 4/25/01), 786 So. 2d 708, 716 n.5. Although it was not dispositive of the issue, the Fifth Circuit noted that plaintiff did not specifically and concisely plead a cause of action for loss of chance. More important is the fact that plaintiffs did not present evidence supporting loss of chance. Sole medical expert for plaintiffs testified that medical treatment caused death and provided no testimony regarding what chance of survival decedent had at the time of the alleged malpractice. It was the “complete lack of evidence in support of a loss of a chance of survival claim that compels us to conclude that there was no ‘plain and fundamental’ error on the part of the trial judge in declining to give a jury instruction on that doctrine.” Deykin, 219 So. 3d at 1241.

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5. Witnesses Moonan v. La. Med. Mut. Ins. Co., 16-113 (La. App. 5 Cir. 9/22/16), 202 So. 3d 529, writ denied, 2016–2048 (La. 1/9/17), 214 So. 3d 869. The Fifth Circuit held that a court could admit a medical review panel member’s testimony even though the party did not provide an expert report per La. CCP art. 1425. The Fifth Circuit explained that the purpose of the expert report is to provide the opposing party with advance notice of the expert’s opinions and the bases for those opinions. The record in this case indicated that the plaintiffs were aware of the doctor’s opinion and what he would testify to at trial.

6. Pleading Breland v. Willis Knighton Med. Ctr., 51,150 (La. App. 2d Cir. 2/15/17), 212 So. 3d 724, writ denied, 2017–0685 (La. 6/16/17), 220 So. 3d 758. Facts: Wife of decedent, filed suit against defendants, alleging that her husband’s death was a result of medical malpractice during treatment at Willis Knighton. Two months after decedent’s death, his wife sought an attorney to request her husband’s medical records for review. She was advised by her counsel of the alleged acts of negligence by defendants, and she filed suit. About two weeks after filing suit she requested a medical review panel. In response, the defendants filed an exception of prescription, which the trial court granted. Plaintiff’s counsel requested leave to amend the petition, which the trial court denied. Plaintiff then filed a devolutive appeal. Issue: Whether the trial court erred in denying plaintiff’s request for leave to amend the petition. Holding and Rationale: Yes. Under La. CCP art. 934, if a plaintiff has raised allegations in argument which might be sufficient to overcome a peremptory exception of prescription, she should be allowed time to amend the petition, even though the claim asserted in the original pleadings has prescribed on its face. This rule has been liberally applied by courts. If new allegations raise the possibility that the claim is not prescribed, an opportunity to amend should be allowed unless it can be determined that the new allegations would have no effect on the issue of prescription. If plaintiff amended her petition to include the date of discovery of the malpractice, her claims might not have prescribed, so the trial court was required to allow her the opportunity to amend the petition.

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7. Discovery Stevens v. St. Tammany Parish Gov’t, 2016-0534 (La. App. 1 Cir. 1/18/17), 212 So. 3d 568. Facts: In property owners’ lawsuit, one of the plaintiffs received a flash drive with digital copies of documents about the property. An employee of defendant found a sealed envelope in her mailbox with plaintiff’s name on it. She gave the envelope containing the flash drive to plaintiff. Defendant filed a motion for protective order, contempt of court, and sanctions because the flash drive contained its litigation file, including attorney-client communications and attorney work product. Defendant alleged that plaintiff had been in possession of the flash drive and failed to disclose it in violation of court-ordered discovery. The trial court found plaintiff and her attorneys in contempt of court, made the protective order permanent, and ordered plaintiff and her attorneys to pay costs of the motion and attorney fees. Issue: Whether trial court had authority to issue a protective order regarding flash drive obtained outside of discovery. Holding and Rationale: Yes. La. CCP art. 1426 does not provide the authority because it is limited to discovery. The court noted that Louisiana courts had not yet decided whether a trial court has authority to issue a protective order regarding information obtained outside formal discovery. The federal courts have addressed the issue under the analogous FRCP Rule 26(c), consistently holding that Rule 26(c) does not authorize issuance of such a protective order. However, in some cases federal courts have found that trial courts have inherent authority (not under Rule 26(c)) to control the judicial proceedings, including control of documents obtained outside discovery. Similarly, the First Circuit held that the trial court could issue the protective order under its inherent authority to control the judicial proceedings. The court recounted that plaintiffs obtained the flash drive outside formal discovery and failed to disclose their possession of it or turn over the electronic data in violation of court-ordered discovery. Indulge Island Grill, LLC v. Island Grill, 2016-1133 (La. App. 4 Cir. 5/10/17), 220 So. 3d 154. Facts: Plaintiff supported its motion for default summary judgment with a set of unanswered requests for admissions. The facts were deemed admitted per

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La. CCP art. 1467, and the admitted facts were sufficient to establish the crux of the litigation. Issue: Whether the defendant should be relieved of the admissions. Holding and Rationale: Yes. Jurisprudence has tempered the harsh penalty by providing that a “‘matter will not be deemed admitted if the party against whom the admission is sought controverts the matter in some other manner, such as by exception or answer.’” Indulge Island Grill, 220 So. 3d at 163 (quoting Frank L. Maraist, La. Civ. L. Treatise, Civil Procedure § 9:8 (2d ed. 2016)); and citing Phelps Dunbar, L.L.P. v. Stout, 04-0785, p. 7 (La. App. 4 Cir. 6/15/05), 914 So. 2d 44, 49, writ denied, 2005-2595 (La. 5/5/06), 927 So. 2d 309). Although defendant failed to respond to the request for admissions, it filed a verified reconventional demand in which it controverted the requested admissions. Guillory v. Christus Health Central La., 16-841 (La. App. 3 Cir. 5/10/17), 219 So. 3d 1115. Issue: Whether trial court abused its discretion in denying defendant permission to withdraw and amend responses to requests for admissions where they were clearly contrary to the record. Holding and Rationale: No. A party must satisfy two prongs of La. CCP art. 1468: (1) the merits of the action will be assisted by allowing the withdrawal of the admissions; and (2) the other party will not be prejudiced in maintaining the action. Neither prong was satisfied. First, at the time the admissions were made all investigation concerning the fall was under defendant’s control. Defendant had ample opportunity to investigate before making admissions. Second, plaintiff would be prejudiced because he relied on admissions in filing his motion for summary judgment. Defendant had ample time to revisit the admissions but failed to do so for several years until trial was only two months away.

8. Subpoena Hayden v. 3M Company, 16-1030 (La. App. 4 Cir. 2/3/17), 211 So. 3d 528, writ denied & stay denied, 2017–CC–0384 (La. 3/3/17), 216 So. 3d 799. Facts: In a suit brought by heirs of a decedent who died from mesothelioma against manufacturers and facilities where decedent was allegedly exposed, the plaintiff-heirs served trial subpoenas on numerous defendant-corporations for in-court appearance of corporate representatives at trial. In response, the defendants filed motions to quash the subpoenas, which were granted by the

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trial court on the basis that the corporations were not domiciled in Louisiana. Plaintiffs then filed an application for supervisory writs to the Fourth Circuit which was denied. Thereafter, plaintiffs filed a writ application in the Louisiana Supreme Court, and the Court issued orders remanding the matter to the appellate court for briefing, oral argument, and full opinion. Issue: Whether Louisiana subpoena power extends to nonresident parties participating in litigation in Louisiana courts. Holding and Rationale: Yes. Although the plain language of La. CCP art. 1352 speaks to only witnesses residing or employed in Louisiana, it does not automatically exempt nonresidents that are not employed in Louisiana from being compelled by a Louisiana court to appear in the state for discovery or to attend trial. The subpoena power, however, over nonresident, party defendants, as with nonresident party plaintiffs, is not unlimited, and out of fundamental fairness, the courts must consider the following factors (same as for nonresident party plaintiffs) when determining whether to compel a nonresident party defendant to appear in Louisiana: travel costs, complexity of the case, the potential recovery, and whether other methods of discovery have been attempted. Reversed and remanded for consideration consistent with this opinion.

9. Prescription Arnouville v. Crowe, 2016-0046 (La. App. 1 Cir. 9/16/16), 203 So. 3d 479. Facts: Plaintiffs filed a lawsuit in federal court asserting subject matter jurisdiction based on diversity of citizenship. Defendants moved to dismiss for lack of subject matter jurisdiction. The federal court denied the motion, stating that it could not resolve the factual dispute and was unable to conclude that it lacked subject matter jurisdiction. Plaintiffs then sued in state district court. Defendants refiled their motion to dismiss for lack of subject matter jurisdiction in the federal court, and plaintiffs’ counsel and defendants’ counsel agreed to a voluntary dismissal without prejudice to plaintiffs’ rights to purse their claims in state court. Defendant filed a peremptory exception raising the objection of prescription in the state court action. The state court denied the exception, reasoning that filing of the lawsuit in federal court interrupted prescription. Issue: Whether the state court should have determined whether the federal district court had subject matter jurisdiction before deciding that filing in federal court interrupted prescription.

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Holding and Rationale: No. The federal district court had maintained its subject matter jurisdiction by denying a motion to dismiss, and the federal suit was pending at the time plaintiffs filed in state court. The First Circuit agreed with the district court that “until there was a decision by the federal court that it lacked jurisdiction, the federal suit served to interrupt prescription, an interruption that continued as long as the federal suit was pending.” Arnouville, 203 So. 3d at 487 (citing CCP art. 3462 & 3463). Dissenting, Judge McDonald contended that if the federal court did not in fact have subject matter jurisdiction, it was not a competent court, and under CCP art. 3462, filing in that court did not interrupt prescription. Arnouville, 203 So. 3d at 488 (McDonald, J., dissenting) Accordingly, the dissent would have reversed and remanded for the state district court to determine whether the federal district court had subject matter jurisdiction when plaintiff filed there. Truxillo v. Thomas, 2016-0168 (La. App. 4 Cir. 8/31/16), 200 So. 3d 972. Facts: Daughter of decedent filed request for medical review panel and after panel issued its opinion, she filed medical malpractice lawsuit. Six days later supplemental and amending petition added decedent’s son as a plaintiff. Defendant filed peremptory exception of prescription, arguing that son was not named in request for medical review panel. Issue: Whether all persons who pursue a medical malpractice action must be named in the prior request for medical review panel. Holding and Rationale: No. The Fourth Circuit held that the MMA does not require all parties who may have a claim to invoke the panel review proceeding. The filing by decedent’s daughter was sufficient, and son could be added after prescriptive period. The court reasoned that the statue requires “a claimant” to file, and does not specify that only claimants who joined the request for panel may later sue. Although the MMA does require that the request for review contain “[t]he names of the claimants,” La. R.S. 40:1231.8A(1)(b)(iii), nothing in the Act bars a person not named as a claimant from filing a lawsuit. Moreover, under the MMA, all persons claiming damages as a result of injuries or death of any one patient are considered a single claimant. La. R.S. 40:1231.1. Finally, the court found support for its conclusion in Warren v. Louisiana Med. Mut. Ins. Co., 07–0492 (La. 12/2/08), 21 So. 3d 186, on reh'g (6/26/09). Although Warren addressed the inapplicability of relation back under the MMA, the Court would not have found it necessary to reach that issue if the second daughter’s failure to file a

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request for medical review panel had been a ground for dismissal based on prescription. Gallagher Bassett Servs. v. Canal Ins. Co., 2016-0088 (La. App. 1 Cir.) 202 So. 3d 1160, writ denied, 2016-1860 (La. 12/5/16), 213 So. 3d 392.

The general rule is that substantive rights are governed by the lex loci or the place where the action arose, while the procedural rights are governed by the lex fori or the place of the forum. Davis v. Gravois, 2013–0439 (La.App. 4 Cir. 9/25/13), 125 So.3d 541, 545 n. 2 (citing Matney v. Blue Ribbon, Inc., 12 So.2d 249 (La.App. 1 Cir. 1942); Patterson v. Patterson, 436 So.2d 603 (La.App. 4 Cir.1983)). Prescriptive statutes including those governing interruption and suspension of prescription are procedural, rather than substantive in nature. Davis, 125 So.3d at 546. Prescription is governed by the laws of the forum. Kleckley v. Hebert, 464 So.2d 39, 44 (La.App. 3 Cir.1985).

Gallagher Bassett Servs., 202 So. 3d at 1165.

10. Abandonment Savoie v. Lamarque Ford, Inc., 16–CA–221 (La. App. 5 Cir. 12/7/16), 205 So. 3d 1001. A motion to continue a summary judgment without a date is not an action in prosecution for purposes of abandonment. Nunez v. Burgos, 16-568 (La. App. 5 Cir. 3/15/17), 215 So. 3d 931. Issue: Whether e-filing unsigned interrogatories interrupted abandonment when the interrogatories were later signed after a motion for abandonment was filed. Holding and Rationale: Yes. CCP Art. 1420(C) provides as follows: “If a request, response, or objection is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the person whose signature is required. A party shall not be obligated to take any action with respect to the request, response, or objection until it is signed.” Thus, the court treated the defect as cured and the interrogatories as signed when they were first filed.

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11. Personal Jurisdiction Delahoussaye v. Boelter, 2015-1790 (La. App. 1 Cir. 7/28/16), 199 So. 3d 633, writ denied, 2016-01626 (La. 11/18/16), 210 So. 3d 290. Facts: Plaintiff bought a bicycle three years before accident on eBay from Wisconsin resident. Plaintiff sued that individual, alleging that his bicycle accident was the result of defendant’s negligent removal of secondary retention devices on the front tire. Defendant was served by certified mail pursuant to the Louisiana long-arm statute, La. R.S. 13:3201. Defendant filed and the trial court granted the declinatory exception of lack of personal jurisdiction. Issue: Whether a Louisiana court could exercise personal jurisdiction over an eBay seller who is a resident citizen of Wisconsin based on a single sale to a Louisiana resident. Holding and Rationale: No. Louisiana can exercise personal jurisdiction to the limits of federal constitutional due process. That standard asks whether a defendant had sufficient minimum contacts with the state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. The International Shoe test is comprised of two parts: (1) minimum contacts; and (2) fairness. If the plaintiff satisfies part 1, a presumption that exercise of jurisdiction is reasonable arises and the burden shifts to the party opposing jurisdiction to overcome the presumption. Considering the single sale of a noncommercial seller via internet of a bicycle, the First Circuit found the defendant’s contacts with the state “limited and fortuitous in nature,” and defendant did not purposefully avail himself of the privilege of conducting business in the state and could not reasonably anticipate being haled into court in Louisiana. For the proposition that a single eBay transaction constitutes sufficient minimum contacts, plaintiff relied on the First Circuit’s decision in Crummey v. Morgan, 07–0087 (La. App. 1 Cir. 8/8/07), 965 So. 2d 497, writ denied, 07–1806 (La. 11/9/07), 976 So. 2d 509. The court acknowledged that case, but distinguished it because the nonresident defendant in that case had engaged in multiple acts of commerce with Louisiana residents in the prior year. The court summarized:

Simply put, we do not believe that the consummation of a sale using eBay is determinative of the constitutionality of the exercise of personal jurisdiction over a nonresident defendant. Traditional jurisdictional analysis should not be upended simply because a case involves technological developments that make it easier for parties to reach across state lines.

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Delahoussaye, 199 So. 3d at 638.

12. Collateral Source Rule Royer v. State, 16-534 (La. App. 3d Cir. 1/11/17), 210 So. 3d 910, writ denied, 2017–0288 (La. 4/24/17), 221 So. 3d 69. Facts: The state DOTD, the tortfeasor, claimed it should not be subject to the collateral source rule and should receive a credit for workers’ compensation benefits paid to plaintiff. The Third Circuit held that the collateral source rule was applicable in Royer and denied the state a credit. In contrast to Bellard v. American Central Ins. Co., 07-1335, 07-1399 (La. 4/18/08), 980 So. 2d 654, where the solidary obligors were not tortfeasors (UM carriers and workers’ compensation carriers), the court in Royer found that the deterrence goal was important where the state was the tortfeasor, and the deterrence goal outweighs concerns with double recovery.

13. Prematurity Miguel v. Geico Gen. Ins. Co., 2016-0596 (La. App. 4 Cir. 12/21/16), 207 So. 3d 507. Facts: Plaintiff sued alleging racial discrimination under the state employment discrimination law. Defendant filed the exception of prematurity contending that plaintiff did not give the 30-day written notice before filing suit required by La. R.S. 23:303, and the written notice was not specific enough to satisfy the requirements of La. R.S. 23:303(C). The trial court granted the exception and dismissed plaintiff’s lawsuit. The Fourth Circuit granted a writ and remanded to the trial court for an evidentiary hearing. The trial court held a hearing and determined that plaintiff gave notice 28 days before filing, and the written notice given did not have sufficient specificity to outline the acts of discrimination. The case was dismissed. Issue: Whether failure to give the statutory 30 days notice rendered the suit premature when plaintiff argued that delaying filing the petition two more days would have been a futile act. Holding and Rationale: Yes. The statute is clear and unambiguous, does not lead to absurd consequences, and must be given effect. The only exception to

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the 30-day notice requirement is if the plaintiff files a charge with the EEOC, which did not happen in this case. The court relied on a prior Fourth Circuit decision, Simpson-Williams v. Andignac, 04-1539 (La. App. 4 Cir. 4/20/05), 902 So. 2d 385, and a federal district court decision, Stubberfield v. Hercules Offshore, 15-2339, 2016 WL 2855480 (E.D. La. May 16, 2016), for the principle that the statute is to be imposed literally and any deficiency is fatal to plaintiff’s claim. In Stubberfield, the plaintiff filed without giving a 30-day written notice because prescription was about to run and plaintiff did not have 30 days to spare. Plaintiff filed but withheld service of process for 30 days. The court characterized plaintiff’s effort as “an artful attempt to remedy this obvious deficiency,” but held that the timing requirement is significant and failure to comply is fatal with the single exception of filing a charge with the EEOC.

14. Motion to Strike Shelton v. Pavon, 2016-0758 (La. App. 4 Cir. 2/15/17), 212 So. 3d 603, writ granted, 2017–CC–0482 (La. 4/24/17), 219 So. 3d 328. Facts: After wife died, plaintiff husband learned that wife had changed beneficiary on her life insurance policy from husband to her former paralegal and friend. Husband filed petition to annul the change of beneficiary, alleging it was obtained through fraud, forgery, and undue influence. Defendant and new beneficiary filed answer and reconventional demand claiming that husband’s petition was defamatory. Plaintiff husband filed a special motion to strike pursuant to La. CCP art. 971. The trial court granted the motion to strike. Issue: Whether husband’s petition involved a public issue. Holding and Rationale: No. Plaintiff argued that his petition is covered under art. 971 because it is a written statement made before a judicial proceeding. The Fourth Circuit explained: “We find the language of La. C.C.P. art. 971(F)(1)(a) is ambiguous because it is susceptible to different meanings. First, the language may be read to indicate that a special motion to strike will apply to any issue made before a judicial proceeding. Second, the statute may be interpreted to mean that a special motion to strike will apply only to statements or writings made in connection with a public issue.” Shelton, 212 So. 3d at 608 (emphasis in original). After examining the statutory language, the legislative history, and the case law, the court adopted the second reading—statements made in a judicial proceeding must be made in connection with a public issue. In this case, plaintiff’s petition involved a

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private dispute between private parties. Thus, plaintiff’s petition was not an act in furtherance of his right to petition in connection with a public issue.

15. Intervention New Jax Condominium Ass’n v. Vanderbilt New Orleans, LLC, 2016–0643 (La. App. 4th Cir. 4/26/17), 219 So. 3d 471. District court could not render a monetary judgment against non-defedant intervenor New Jax.

Regarding intervenors, the Louisiana Practice Series on Louisiana Civil Pretrial Procedure reads as follows:

An intervenor has three options in filing an intervention: join with the plaintiff in demanding similar relief; join with the defendant in resisting the plaintiff's demands; or oppose both. Note, however, that no matter which party the intervenor aligns with, the intervenor does not thereby become a plaintiff or a defendant.

La. Prac. Civ. Pretrial § 4:82 (2016–2017 ed.) (bullet points omitted) (emphasis added).

New Jax, 219 So. 3d at 481.

16. Sovereign Immunity Reed-Salsberry v. State, through Dept. of Public Safety, etc., No. 15,104 (La. App. 2 Cir. 2/15/17), 216 So. 3d 226, writ denied, 2017–0494 (La. 5/26/17), 221 So. 3d 81. Facts: Plaintiff was a teacher at the Monroe Campus of Swanson Center for Youth – Southside Alternative High School. She filed a charge with the EEOC asserting harassment by the principal on the basis of a disability that limited her mobility. She received a right to sue letter and filed suit, alleging violations of Title VII, the ADA, and the Louisiana Employment Discrimination Law. Issue: Whether the state of Louisiana had waived its sovereign immunity

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regarding federal law claims. Holding and Rationale: No. Louisiana has specifically waived its sovereign immunity from suits in contract or tort (La. Const. art. 12, § 10(A)). However, the state has not waived its sovereign immunity in the federal system to unlimited Congressional power over states. In an earlier case, the Louisiana Supreme Court rejected the argument that since FMLA claims essentially arise from an employment contract, that the state has waived its sovereign immunity to FMLA claims. (citing Holliday v. Board of Supervisors of LSU, 2014-0585 (La. 10/15/14), 149 So. 3d 227). Although the federal statue at issue in this case was the ADA rather than the FMLA, the argument made by the plaintiff in this case was effectively the same—that the state had waived its sovereign immunity because the matter arose from her employment contract. The Second Circuit found that the plaintiff had not sufficiently distinguished the holding in Holliday and other cases.

CIVIL PROCEDURE UPDATES SPEAKER BIOS JUDGE NAKISHA ERVIN-KNOTT Hon. Nakisha Ervin-Knott was elected to Civil District Court, Division “D” on November 4, 2014. Prior to being elected, Judge Ervin-Knott was a partner in the law firm of Gainsburgh, Benjamin, David, and Meunier & Warshauer. Her practice focused on medical negligence cases in addition to automobile, personal injury, and class action matters. Before joining the firm, she served as a staff counsel for LAMMICO, the largest insurer of health care providers in the state. In 1999-2000, she served as a judicial law clerk to the Honorable Terri F. Love, Civil District Court (CDC) for the Parish of Orleans. Beyond her legal practice, Judge Ervin-Knott served on the Council of Directors for the Louisiana Associate for Justice, Vice Chair of ASI Federal Credit Union, and is the immediate Past President of the Independent Women’s Organization, the oldest and largest democratic women's organization in the city. Currently, Judge Ervin-Knott serves on the Board of Governors of the Louisiana Judicial College and as the Treasurer of the Fourth Circuit Judges Association. She is also a member of the Louis A. Martinet Legal Society, the Association of Women Attorneys, and was recently recognized as a 2014 “Leader in Law” by New Orleans City Business on November 4th, 2014. Judge Ervin-Knott is a 1998 graduate of Southern University Law Center, Baton Rouge, Louisiana, J.D., and a 1995 honor graduate of Xavier University of Louisiana, New Orleans, Louisiana, with a Bachelor of Arts in Political Science. PROFESSOR WILLIAM R. CORBETT Professor William R. Corbett holds the Frank L. Maraist Professorship and the Wex S. Malone Professorship at the Paul M. Hebert Law Center of Louisiana State University. He has been a faculty member at LSU since 1991. In 25 years on the faculty, Corbett has taught Labor Law, Employment Law, Employment Discrimination, Comparative Labor Law, Torts, Relational Torts, Federal Civil Procedure, and Louisiana Civil Procedure. Professor Corbett served as Interim Co-Dean during the 2015-16 academic year and as Vice Chancellor for Academic Affairs of the Law Center from 1997 through 1999. He was a visiting associate professor at William and Mary in 1996 and a visiting professor at the University of Georgia School of Law in 2004, 2011, and 2015. He has served as the executive director of the Louisiana Association of Defense Counsel since 2001, with responsibility for arranging and administering the continuing legal education programs of the LADC. From 1998 to 2001, he had similar responsibilities while serving as the executive director of the Louisiana Judicial College. In October 2016, Professor Corbett returned to the Judicial College when he was appointed as the College’s Faculty Advisor. Professor Corbett has contributed to several books and written numerous articles on labor, employment, and torts topics. He is a frequent speaker on continuing legal education programs. Corbett received his B.A. from Auburn University and his law degree from the University of Alabama, where he was Editor-in-Chief of the Alabama Law Review and a member of the Order of the Coif. Before coming to the LSU Law Center in 1991, he practiced labor and employment law in Birmingham, Alabama with Burr & Forman.

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