323 So.3d 918
La. Ct. App.2021Background
- On Feb. 24, 2017 plaintiff Nyles Walker was rear-ended by Joy Bruhe (employee of Raiser LLC, insured by James River), sustaining injuries.
- Plaintiff filed a petition Feb. 23, 2018 by fax and overnight FedEx to the Orleans Parish Clerk, attaching a request to proceed in forma pauperis (IFP) and service instructions naming GoAuto, James River, Raiser LLC, and Bruhe.
- The Clerk denied IFP on Mar. 12, 2018 and on Mar. 19 notified counsel $670 in court costs was due; counsel sent a check, received by the Clerk Mar. 27 and cleared Apr. 2, 2018.
- Additional sheriff service fees were later identified; counsel paid checks for secretary of state and sheriff fees on Apr. 16, 2019, but no service was effectuated until Sept. 19, 2019.
- Defendants filed declinatory exceptions of insufficiency of service of process; the trial court sustained them and dismissed the claims without prejudice. The court of appeal reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of citation was “requested” within 90 days under La. C.C.P. art. 1201(C). | Walker timely requested service when he filed the petition with the Clerk, included service instructions, and paid the Clerk the court costs after IFP denial. | Service was not timely requested because no effective service was caused within 90 days and plaintiff failed to timely pay required fees to effectuate service. | Court held the request was timely: delivering petition and service instructions to the Clerk satisfied the statutory “request.” Reversed trial court. |
| Whether payment to the sheriff (or immediate payment of all sheriff fees) is required before a request is “made.” | A request to the Clerk (with instructions) is sufficient; the Clerk’s receipt triggers the duty to act. | Plaintiffs should be required to pay sheriff fees at filing to constitute a valid request. | Court followed precedents holding the initial request to the Clerk suffices; payment to the sheriff is not a prerequisite to the statutory “request.” |
Key Cases Cited
- Macquet v. Westbay, 302 So.3d 564 (appellate review standard for dismissal for failure to timely request service)
- Llopis v. Louisiana State Bd. of Dentistry, 143 So.3d 1211 (standard for manifest error review)
- Anderson v. Norfolk Southern Ry. Co., 814 So.2d 659 (purpose of 90-day request is timely notice to defendant)
- Parker v. Rite Aid Corp., 843 So.2d 1140 (request for service should be made to the clerk; filing with clerk satisfies request)
- Tranchant v. State, 5 So.3d 832 (service is deemed requested when the clerk receives service instructions)
- Jenkins v. Larpenter, 906 So.2d 656 (request without payment may be insufficient where fees never paid)
- Ayers v. Goodwill Indus., 870 So.2d 348 (similar holding on non-payment and failure to effect service)
- Red Stick Studio Dev. v. State ex rel. Dept. of Econ. Dev., 56 So.3d 181 (statutory interpretation principles)
- M.J. Farm, Ltd. v. Exxon Mobil, 988 So.2d 16 (statutory interpretation authority)