Scheduling of Discovery Conference Interrupted Abandonment of Suit

Louisiana Code of Civil Procedure Article 561 provides, subject to certain enumerated exceptions, that “[a]n action… is abandoned when the parties fail to take any step in its prosecution or defense trial court for a period of three years.” La. C.C.P. art. 561 A(1).  The contours of what constitutes a “step” in prosecution or defense have been developed over time by jurisprudence.  For example, while service of formal discovery on all parties is expressly mentioned in Article 561 as a step in prosecuting a claim, enrolling or withdrawing as counsel of record is generally not a “step” for purposes of interrupting abandonment.

Recently, the Louisiana Supreme Court provided additional guidance on whether certain conduct was a “step” within the meaning of Article 561.  In Louisiana Department of Transportation and Development v. Oilfield Heavy Haulers, L.L.C., the Court held that the scheduling of a Rule 10.1 discovery conference was sufficient to interrupt abandonment.  Rule 10.1 of the Rules for Louisiana District Courts requires that a party seeking to file a discovery motion must attempt to arrange a conference with the opposing party to try to amicably resolve the dispute prior to seeking judicial intervention.  The Court observed that a Rule 10.1 conference is a prerequisite to filing a motion to compel, something that is certainly a step in prosecution of a claim.  Because the Rule 10.1 conference is necessary before a party may move to compel discovery, the Court reversed the judgment of the appellate court and held that the action had not been abandoned.

Louisiana DOTD v. Oilfield Heavy Haulers, L.L.C., 2011-0912 (La. 12/6/11); 2011 WL 6091272