Subpoena to Non-Party Not Served on All Parties Does Not Interrupt Abandonment

The Louisiana Third Circuit Court of Appeal recently considered the issue of abandonment in the context of a request for documents directed to a non-party. The defendants, State of Louisiana Department of Public Safety and Corrections and Mindy and Dwayne Venable (“defendants”), moved to dismiss the case at the trial court level as abandoned, arguing that no step had been taken in the prosecution or defense of the case in more than three years. The district court denied the motions to dismiss and defendants sought supervisory review.

Under Louisiana Code of Civil Procedure Article 561, 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. That article further provides that any formal discovery authorized by the Code of Civil Procedure and served on all parties—regardless of whether it’s filed in the record—shall be deemed to be a step in the prosecution or defense of an action.

The issue before the Court of Appeal was whether a letter requesting the issuance of a subpoena duces tecum that was filed into the record but not served on all parties constitutes a step in the prosecution or defense of the case. The Court of Appeal noted that the letter and subpoena met the “formal action” requirement but that they were never served upon the opposing parties and that the opposing parties did not even know that they were filed. The Court of Appeal held that allowing informal, ex parte actions to serve as a step in the prosecution might interrupt prescription against abandonment without the opposing parties formally learning of them for months or years, to their possible prejudice. The trial court found that the notice of the subpoena was not served on the defendants and, therefore, the case should have been adjudged abandoned. The Court of Appeal reversed the trial court’s ruling denying the motion to dismiss and remanded the case for entry of a formal order of dismissal.

Giglio v. State

Trevor M. Cutaiar