363 So.3d 532
La. Ct. App.2023Background
- On Nov. 2, 2020 plaintiffs fax-filed a petition naming the City of Slidell, employee Joseph Hirstius, and insurer AAIC and included a request for service; the clerk’s fax confirmation stated a “total amount” of $535 was due and plaintiffs mailed the petition and a $535 check (clerk received Nov. 4).
- Clerk issued citations Dec. 1, 2020; the sheriff emailed plaintiffs’ counsel that sheriff’s service fees were due and warned citations would be returned for nonpayment.
- AAIC was served Dec. 9 via the Secretary of State; the sheriff returned the citations for the City and Hirstius to the clerk on Feb. 4, 2021 (94 days after filing) marked “insufficient funds.”
- Plaintiffs engaged in settlement discussions for months; defendants filed a declinatory exception for insufficiency of service on July 27, 2021 arguing plaintiffs failed to request service/pay fees within 90 days. Plaintiffs later reissued and paid; Hirstius was served Sept. 28, 2021 and the City Nov. 24, 2021.
- Trial court sustained the exception and dismissed the City and Hirstius without prejudice; plaintiffs appealed, arguing they timely requested service when they fax-filed and paid the $535 to the clerk.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a "request" for service is timely when plaintiff fax-files the petition and pays the clerk but does not pay sheriff's service fees within 90 days | Miller: fax-filing plus paying the clerk’s $535 (per fax confirmation) constituted a timely request within 90 days | City/Hirstius: request isn’t valid until clerk receives payment of required sheriff fees (or pauper order); unpaid sheriff fees within 90 days = no timely request | Held: Not timely. Under Tranchant/Methvien/Jenkins, service is not considered requested until clerk receives proper service instructions and required fees or pauper order; failure to pay sheriff fees within 90 days meant no valid request |
| Whether La. R.S. 13:5107(D) and La. C.C.P. art. 1201(C) require payment to the sheriff within 90 days to constitute a request | Miller: statutes require only that service be requested within 90 days; they complied by fax-filing and paying the clerk | City/Hirstius: the practical effect and precedent require payment of sheriff fees (or pauper relief) within 90 days to effect a valid request | Held: Court follows Methvien and Jenkins: request includes payment or pauper order; receiving clerk’s filing alone was insufficient |
| Whether plaintiffs showed "good cause" under La. C.C.P. art. 1672(C) to avoid dismissal | Miller: COVID-19 protocols, inability to hand-deliver, settlement negotiations, and the clerk’s ambiguous fax confirmation excuse nonpayment and justify tolling | City/Hirstius: Good cause is strictly construed; counsel could have confirmed service/fees and had notice that fees were outstanding; negligence and settlement talks are insufficient | Held: No good cause shown. Court found plaintiffs did not take reasonable steps to verify service or payment status and COVID/settlement arguments did not establish good cause |
| Whether defendants waived the 90-day requirement by settlement negotiations or by having notice of the suit | Miller: same counsel/settlement communications and defendants’ knowledge of AAIC service show de facto waiver | City/Hirstius: Waiver must be written and part of the record under art. 1201(B); mere knowledge or informal settlement talks do not waive service | Held: No waiver. No written waiver in record; actual knowledge does not replace formal citation/service |
Key Cases Cited
- Tranchant v. State, 5 So.3d 832 (La. 2009) (service is "requested" when the clerk receives service instructions from the plaintiff)
- Methvien v. Our Lady of the Lake, 318 So.3d 329 (La. App. 5th Cir. 2021) (service not timely requested where required sheriff fees were unpaid within 90 days)
- Jenkins v. Larpenter, 906 So.2d 656 (La. App. 1st Cir. 2005) (a request without payment of required fees or pauper order is not a proper request)
- Igbinoghene v. St. Paul Travelers Ins. Co., 58 So.3d 452 (La. 2011) (defendant’s actual knowledge of suit does not substitute for formal citation and service)