Extra-Judicial Efforts to Informally Set Depositions Are Insufficient to Prevent Abandonment

In July 2001, plaintiff filed a lien against defendants. Defendant’s answered the lawsuit and discovery ensued. In 2005, plaintiff filed a motion and order to compel discovery. Thereafter, only limited action took place on the claim, mostly status and/or scheduling conferences, the last of which was filed by plaintiffs on June 4, 2014. On June 9, 2014, defendants filed a motion for dismissal, seeking to have the case dismissed as abandoned due to the fact that plainitff had taken no steps in the prosecution of the action in over three years. The record showed that discovery was served on plaintiff on May 17, 2011, and that subsequent to the service of discovery attempts were made in June and August 2011 to schedule depositions. Plaintiff alleged that the letters were attempts to set a deposition and should constitute active steps in the prosecution of the case. The trial court disagreed, and on June 16, 2014, issued an order dismissing the matter as abandoned. The plaintiff filed a motion to set aside the dismissal, which was denied.

On appeal, the Louisiana First Circuit Court of Appeal affirmed the trial court’s ruling, stating that “simply attempting to schedule” a discovery matter, such as a deposition, through informal correspondence without making or filing a formal notice of deposition, is not a step in the prosecution of the action for purposes of interrupting or waiving abandonment. The First Circuit noted that correspondence such as the attempts to schedule the depositions were extra-judicial efforts that were insufficient to interrupt abandonment, which occurs by operation of law after three years when plaintiff fails to prosecute his claim.

Hall and Associates, Inc. v. Brunt Construction, Inc.

Simone H. Yoder