318 So.3d 329
La. Ct. App.2021Background
- Timothy Methvien fax-filed a medical-malpractice petition on Oct. 11, 2019 naming Our Lady of the Lake (OLOL) and requested service on OLOL's agent; the Clerk's fax confirmation listed $487 due (paid Oct. 14) and left a blank for any sheriff fees.
- The Clerk sent a later Message Reply (dated Oct. 22, 2019) indicating an additional $40.08 was payable to the East Baton Rouge Sheriff; counsel disputes receiving that notice.
- Methvien did not pay any sheriff service fee within 90 days; OLOL was not served until May 22, 2020 (about 224 days after filing), after OLOL filed an exception.
- OLOL filed an exception of insufficiency of service of process and moved for involuntary dismissal under La. C.C.P. art. 1672(C), arguing service was not requested within the 90-day period required by La. C.C.P. art. 1201(C).
- The trial court sustained OLOL’s exception, dismissed Methvien’s claims against OLOL without prejudice, and Methvien appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was "requested" within 90 days under La. C.C.P. art. 1201(C) when petition requested service but sheriff fees were not timely paid | Methvien: he requested service in the petition and promptly paid the Clerk's fees; he lacked notice of any separate sheriff fee and paid once he learned | OLOL: service is not requested until the clerk receives the service request and required fees; no payment to sheriff within 90 days means no timely request | Court held service was not requested within 90 days because payment to the sheriff was required; exception sustained |
| Whether "good cause" exists under La. C.C.P. art. 1672(C) to avoid dismissal despite late service | Methvien: he did not receive notice of the sheriff fee and counsel’s inadvertence/notification failure excuses delay | OLOL: plaintiff/counsel failed to verify service or act during the lengthy delay; counsel’s inaction/inadvertence is insufficient | Court held no good cause shown; dismissal without prejudice affirmed |
Key Cases Cited
- Rivers v. Groth Corp., 680 So. 2d 762 (La. App. 1st Cir. 1996) (service and citation are essential; proceedings void without proper service)
- Jenkins v. Larpenter, 906 So. 2d 656 (La. App. 1st Cir. 2005) (service not considered requested until clerk receives request and required fees)
- Lucien v. Carter, 251 So. 3d 540 (La. App. 1st Cir. 2018) (purpose of 90-day rule is timely notice to defendant)
- Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport, 841 So. 2d 725 (La. 2003) (good-cause requirement is strictly construed)
- Norbert v. Loucks, 791 So. 2d 1283 (La. 2001) (confusion or counsel inadvertence does not establish good cause)
- Liberty Mut. Ins. Co. v. Noble, 889 So. 2d 1158 (La. App. 5th Cir. 2004) (no good cause where party took no action and failed to monitor service status)
- Ayers v. Goodwill Indus., 870 So. 2d 348 (La. App. 4th Cir. 2004) (lack of awareness of fee denial and prolonged inactivity not good cause)
- Joseph v. North Am. Risk Servs., 86 So. 3d 752 (La. App. 4th Cir. 2012) (attorney's assumption that service would be made and failure to verify does not establish good cause)
- Rollins v. City of Zachary, 808 So. 2d 439 (La. App. 1st Cir. 2001) (plaintiff must verify mailed service requests; failure to confirm receipt is not good cause)