Thursday, January 19, 2012

Degruy v. Jenkins, et al., 863 So.2d 693 (La.App. 4 Cir. 2003)

Facts of the Case

In May 1997, Tabitha DeGruy filed a petition for damages against ABC Insurance and Robert Jenkins (relator) on behalf of her minor child. This petition contained a notation to hold service.

On approximately April 20, 2000, the plaintiffs requested citation of the petition via a letter addressed to the Clerk of Court and enclosed a $30.00 check to cover the cost. The plaintiffs also filed into the record a Request for Notice. The Clerk’s office apparently received the letter on April 25, 2000, but service was never effectuated.

Nothing else occurred in the case until about April 17, 2003. On approximately that date, the plaintiffs filed a notice to take relator’s deposition on May 13, 2003. On May 13, 2003, plaintiffs again requested service on relator.

After these filings, relator filed a rule to show cause why the matter should not be considered abandoned as of April 25, 2003. He argued that the notice of deposition filed on April 17, 2003, could not be considered a step in the prosecution of the case, as it was not served on all parties and the deposition was not going to take place within the 3 year prescriptive period. Plaintiffs argued that the filing of notice of deposition and service constituted a step in the prosecution of the action.

The Procedural Posture of the Case

The Trial Court denied the motion to dismiss for abandonment. The relator appealed this judgment.


1. Did the Plaintiffs treat this case as abandoned?

2. Did the filing of the Notice of Deposition constitute a step in the case?


1. No.

2. Yes.


Louisiana Code of Civil Procedure Article 561 governs abandonment. Art. 561, subsection A, sets the general rule of abandonment, stating that: “An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years…” Subsection B specifies what is considered a step in the prosecution of a case, namely “any formal discovery as authorized by this Code and served on all parties whether or not filed of record . . . shall be deemed to be a step in the prosecution or defense of an action.”

The court determined that the plaintiffs’ requests for service constituted a step in the prosecution of the case. The reasoning behind the decision was not whether service was made; instead, the court focused on the fact that a request for service was made in the first place. This action shows an intention to not abandon a case, and this reasoning was supported by other jurisprudence. Specifically, the court in Department of Transportation and Development v. Waste Management stated that the step did not actually need to move the case forward; instead, the plaintiff must intend to “hasten the matter toward judgment” by taking a step in the prosecution of the action.

Furthermore, the holding of Brister v. Manville stated that “A notice of deposition served on the adverse party by mail is formal discovery.” While the court notes that the plaintiff improperly served the discovery to the relator, it affirms that this does not vitiate the effect of the action. Again, they state that the intention of the plaintiff is the key here; if there is no intention to abandon, courts will generally be reluctant to consider a case abandoned if steps, even technically or procedurally improper ones, are taken.

The court also noted in this case that the relator waived any argument that the case was abandoned when he answered the lawsuit on September 8, 2003, and when he answered discovery three days later.

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