Service of Discovery on Only One Party Does Not Defeat Abandonment

Plaintiffs filed suit against several defendants and alleged a redhibitory defect with respect to a home they purchased. The suit was filed in 2008 and discovery depositions were performed in March 2010. Then, in December 2012, plaintiffs served written discovery upon one defendant. Plaintiffs failed, however, to serve the other parties to the litigation with the written discovery. When the defendant who was served with the discovery requests did not respond in a timely fashion, a discovery conference between plaintiffs and that one defendant was conducted in January 2013.

Thereafter, in June 2013, one of the parties to the litigation who had not received the discovery requests or responses, filed a motion to dismiss plaintiffs’ claim as abandoned because no steps were taken in the prosecution of the litigation since the 2010 depositions. The trial court granted the motion to dismiss and plaintiffs appealed to the Louisiana Third Circuit Court of Appeal. The appellate court agreed with plaintiffs that service of written discovery and notice of the discovery conference to only one of the defendants constituted a step in the prosecution of the action. The Louisiana Supreme Court reversed the decision, stating that service of discovery on one party to the litigation, but not all parties, does not constitute a step in the prosecution of the litigation sufficient to defeat an abandonment claim.

Guillory v. Pelican Real Estate, et. al.

Simone H. Yoder