350 So.3d 988
La. Ct. App.2022Background
- Plaintiffs David and Cayden Lepine sued the LDWF for personal injuries after their boat struck obstructions in Delacroix Canal; petition filed July 22, 2021.
- Plaintiffs requested service July 30, 2021, directed to the LDWF at 2000 Quail Drive, “Attn: Cole Garrett” (LDWF’s general counsel); service was effectuated August 5, 2021.
- Sedgwick (ORM’s TPA) notified plaintiffs’ counsel Aug. 19 that LDWF did not waive defenses and requested a 30‑day extension; plaintiffs agreed.
- LDWF moved to dismiss Nov. 16, 2021 (involuntary dismissal for failure to timely request service) and filed declinatory exceptions for insufficiency of citation and service under La. R.S. 13:5107 and La. R.S. 39:1538. Plaintiffs re‑requested service Dec. 1, 2021.
- After a Jan. 10, 2022 hearing, the district court sustained LDWF’s exceptions and dismissed plaintiffs’ claims without prejudice for failure to timely request service. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs timely requested service under La. R.S. 13:5107(D)(1) when they requested service on the agency "Attn: Cole Garrett" | Requesting service on the agency (via its general counsel) satisfies the statute and the request was timely | Plaintiffs failed to request service on the required persons (department head/ORM/AG) within 90 days | Court: The July 22 request interrupted the 90‑day period under La. R.S. 13:5107(D)(1); the request was timely though imperfect and plaintiffs should be allowed to amend the citation |
| Whether La. R.S. 39:1538 requires strict, timely service on the department head, ORM, and attorney general and mandates dismissal if not done within 90 days | Service on the agency’s person was sufficient; Whitley means La. R.S. 39:1538 defects can be cured and the 90‑day dismissal sanction does not apply the same way | Plaintiffs did not serve the department head, ORM, and AG as La. R.S. 39:1538 prescribes | Court: Plaintiffs failed to satisfy La. R.S. 39:1538’s service requirements, but because the La. R.S. 13:5107 timely request was made, dismissal was premature; plaintiffs must be given opportunity to cure service defects |
Key Cases Cited
- Whitley v. State ex rel. Bd. of Supervisors of La. State Univ., 66 So.3d 470 (La. 2011) (La. R.S. 39:1538 defects do not include an express 90‑day dismissal sanction and insufficiencies may be cured by subsequent service)
- Brown v. Chesson, 315 So.3d 834 (La. 2021) (clarifies that La. R.S. 13:5107(D)’s dismissal penalty applies to instances where a named defendant is not timely served; method/timing of request may be satisfied in different ways)
- Hunter v. La. State Univ. Agric. & Mech. Coll., 82 So.3d 268 (La. 2012) (service on the attorney general placed state entities on notice; defects under La. R.S. 39:1538 should be cured rather than lead to dismissal)
- Pierce Foundations, Inc. v. Jaroy Construction, Inc., 190 So.3d 298 (La. 2016) (principles of statutory interpretation; seek legislative intent when language ambiguous)
- Tranchant v. State, 5 So.3d 832 (La. 2009) (service request timing under La. R.S. 13:5107 requires analysis of when a request is deemed made)