111 So. 3d 83
La. Ct. App.2012Background
- Jones filed a Petition for Damages on February 25, 2011, alleging wrongful termination by the Iberville Parish Council.
- Jones requested service but did not pay filing or service fees; he filed a Motion to Proceed In Forma Pauperis.
- Pauper status was denied on April 6, 2011, prompting Jones to later pay filing fees on June 3, 2011 and service fees on June 24, 2011.
- Service on the Council occurred on July 7, 2011, more than 90 days after filing.
- Jones sought an extension of time for service on July 12, 2011, which the trial court granted.
- The Council then filed a declinatory exception of improper service on July 22, 2011, leading to dismissal of the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service timely requested under 13:5107 D(1)? | Jones contends timely request occurred with the initial petition. | Council argues timely request required clerk payment or pauper order within 90 days. | No; not timely since no payment or pauper order within 90 days. |
| Did good cause exist to excuse late service under 1672 C? | Pauper denial timing and life events constituted good cause. | No good cause given pauper denial occurred before deadline and changes were known. | No; no good cause shown. |
| Did the August 1 extension affect timeliness or the ruling? | Extension could render service timely. | Extension did not retroactively cure untimely service for purposes of 13:5107. | No; extension had no bearing on the issue. |
| Did the trial court commit manifest error in dismissing for untimely service? | Trial court previously found good cause existed for extension. | No reversal of that ruling; proper dismissal under the statute. | No manifest error; dismissal affirmed. |
Key Cases Cited
- Johnson v. Brown, 851 So.2d 319 (La. App. 4th Cir. 2003) (manifest error standard applies to dismissal for untimely service)
- Pylant v. Jefferson Parish, State of Louisiana Dept. of Health and Hosp., 907 So.2d 807 (La. App. 5th Cir. 2005) (timeliness and service requirements govern dismissal)
- Jenkins v. Larpenter, 906 So.2d 656 (La. App. 1st Cir. 2005) (service not requested until clerk received payment or pauper order)
- Tranchant v. State, 5 So.3d 832 (La. 1/21/09) (strict construction of good cause requirement)