Lead Opinion
h This civil case presents the issue of whether scheduling a discovery conference pursuant to Rule 10.1 of the Rules for Louisiana District Courts constitutes a “step” in the prosecution or defense of an action sufficient to prevent abandonment of the action under La.Code Civ. Proc. art. 561.
After plaintiff, Louisiana Department of Transportation and Development (“DOTD”), failed to timely respond to discovery requests, defendant, Oilfield Heavy Haulers, L.L.C. (“OHH”), sent a letter to DOTD on April 24, 2007, requesting a Rule 10.1 discovery conference. Subsequently, DOTD served its discovery responses on OHH, but neglected to serve the other defendants.
No formal action occurred in the case until April 22, 2010, when the District Court granted defendants’ ex parte motion for an order of dismissal on the basis of abandonment. The Court of Appeal affirmed, finding DOTD’s discovery responses and OHH’s letter did not constitute steps in the prosecution or defense of the action. We granted this writ to address the correctness vel non of the appellate court’s decision. La. Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La.6/24/11);
FACTS
On August 30, 2006, DOTD filed suit against defendants for property damage allegedly caused to two overpasses of Interstate 10 in Acadia Parish. DOTD alleges a vehicle owned by OHH, leased to Ace Transportation, Inc. (“Ace Transportation”), insured by Liberty Mutual Fire Insurance Company (“Liberty Mutual”), and driven by David Kyle Vincent, II (collectively “defendants”), was carrying an oversized load when it struck the overpasses in both the east and westbound lanes. Defendants filed responsive pleadings, including a cross-claim and third party demand by Ace Transportation, Vincent, and Liberty Mutual.
On March 15, 2007, OHH sent Interrogatories and Requests for Production to DOTD, which DOTD did not timely answer in accordance with La.Code Civ. Proc. art. 1458. Consequently, on April 24, 2007, counsel for OHH sent a fax to DOTD’s counsel stating:
Your client’s discovery responses are well overdue. Pursuant to Rule 10.1 of the Louisiana Uniform Rules, I would like to schedule a discovery conference for purposes of filing a Motion to Compel. Please be advised that we will contact your office on Friday April 27, 2007, at 2:30 p.m. in order to conduct the necessary discovery conference if I have not received your client’s responses pri- or to that time.
OHH’s counsel also faxed a copy of this correspondence to counsel for the remaining defendants. Counsel for DOTD and OHH conferred by phone on April 26, 2007, and apparently reached an agreement concerning DOTD’s overdue responses. DOTD sent its formal discovery responses to counsel for OHH on May |s10, 2007, but neglected to send a copy of these responses to the remaining defendants.
No formal activity took place in the case until April 20, 2010, when DOTD sent Requests for Admissions to all defendants and filed them into the trial court record on April 22, 2010. Subsequently, on May 21, 2010, Ace Transportation, Vincent, and Liberty Mutual filed an ex parte Motion for Dismissal of the action on the basis of abandonment. On May 24, 2010, the District Court signed the judgment granting dismissal of all claims. DOTD then filed a Motion to Vacate and Set Aside Order of Dismissal. Following a hearing, the District Court denied DOTD’s motion.
The Court of Appeal, Third Circuit, affirmed the judgment of the District Court. Relying on La.Code Civ. Proc. art. 561(B), which states “[a]ny formal discovery ... served on all parties ... shall be deemed to be a step in the prosecution or defense of an action,” the court found DOTD’s formal discovery responses did not constitute a step in the prosecution of its action, as it did not serve its responses on “all parties,” only on OHH. La. Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 10-1392, p. 4-5 (La.App. 3 Cir. 4/6/11);
The court also held OHH’s April 24, 2007 letter scheduling a Rule 10.1 conference did not constitute a step in the prosecution of the action. According to the court, “[ejxtrajudicial efforts, such as informal discussions and correspondence between the parties, have uniformly been considered insufficient to constitute a step for purposes of interrupting or waiving abandonment.” Id., p. 5-6;
14Judge Saunders dissented and assigned reasons. First, he argued, dismissal of DOTD’s entire suit due to its “inadvertent failure” to serve its discovery responses on all the parties was not in keeping with the purpose of Article 561, “not to dismiss suits whose plaintiffs have no intention of abandoning them based on a mere technicality.” Id., p. 1;
Affirmation of this case results in a situation where DOTD would likely have been in a stronger position relative to abandonment had it merely ignored OHH’s letter and not answered the discovery. Then, more likely than not, OHH would have filed a motion to compel the answer of that discovery, thus interrupting abandonment.
Id.
DISCUSSION
The controlling statute in this case is La.Code Civ. Proc. art. 561, which provides in part:
A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of | Bthe last step taken by either party; sufficient action by either, plaintiff or defendant will be deemed a step. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5-6 (La.5/15/01);
A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. See James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La.4/3/02);
The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle,
Our jurisprudence has uniformly held Article 561 is to be liberally construed
As an initial matter, we find OHH’s letter should be analyzed under subsection (A)(1) of Article 561, rather than subsection (B) which pertains only to formal discovery. Article 561(B) states “[a]ny formal discovery as authorized by this Code and served on all parties” will constitute a step in the prosecution or defense of an action. In turn, La.Code Civ. Proc. art. 1421 only provides for the following discovery methods: “depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; request for release of medical records; and requests for admission.” Further, Article 1474 specifically provides the service of written objections, notices, requests, affidavits, interrogatories, and answers to interrogatories “shall be considered a step in the prosecution or defense of an action for purposes of Article 561.” La.Code Civ. Proc. 1474(C)(4). Neither OHH’s letter scheduling a Rule 10.1 conference nor the conference itself are discovery methods authorized by the Code and cannot constitute formal discovery for the purposes of Article 561(B). Therefore, we will analyze OHH’s letter under Article 561(A)(1), which states “[a]n action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.... ”
DOTD argues OHH’s April 24th letter scheduling a Rule 10.1 discovery conference constitutes a step in the prosecution of the action, as a discovery conference is a prerequisite to filing a motion to compel discovery or any other discovery motion. In turn, defendants characterize the April 24th letter as an | ./‘extrajudicial effort” and an informal correspondence between the parties for the purpose of following up on an outstanding discovery request.
“Extrajudicial efforts,” such as informal settlement negotiations between parties, have repeatedly been held to be insufficient to constitute a step in the prosecution of the action. Clark, 00-3010, p. 16;
Recently, the Second Circuit in Brown v. Borg, 45,770 (La.App. 2 Cir. 1/19/11);
Although Brown is factually on point, we find the Second Circuit’s reasoning was somewhat perfunctory. The court concluded “defendant’s demand for responses to discovery — accompanied by a conditional request for a Rule 10.1 conference” was not a step, viewing the case as analogous to prior cases holding correspondence requesting discovery responses is not formal discovery, and thus, not a step in the prosecution of an action. See Brown, 45,770, p. 7;
We find two cases from the First Circuit are persuasive as to the proper method for analyzing whether a party’s action constitutes a step in the prosecution or defense of their case. In Hidalgo v. Catfish Queen Partnership in Commendam,
[Gjiven the objectives of the conferences as set forth in the case management schedule, it must be admitted that the ultimate purpose of the conference was to hasten the matter to judgment by selecting deadlines for the parties to conclude all pretrial matters.... Moreover, many district courts require scheduling conferences prior to fixing the matter for trial. Thus, the requests for the scheduling | ^conferences herein could be said to be a necessary step that the [plaintiffs] had to fulfill in order to hasten their case to judgment.
Id., p. 6;
Applying the three Clark requirements to OHH’s April 24th letter, we will first consider whether the letter constitutes a step in the prosecution of the action.
Louisiana District Court Rules, Rule 10.1, prior to its 2009 amendment, provided as follows:
Before filing any discovery motion, the moving party must attempt to arrange a conference with the opposing party for the purpose of amicably resolving the discovery dispute. The conference may be conducted in person or by telephone. The discovery motion must include a certificate stating:
(a) that the parties have conferred in person or by telephone as required by this rule and the reasons why they were unable to agree; or
(b) that opposing counsel has refused to confer after reasonable notice.
If the court finds that opposing counsel has willfully failed to confer, or failed to confer in good faith, the court may impose sanctions.
(emphasis added). Under the rule, a party “must” attempt to arrange a Rule 10.1 conference before the filing of “any” discovery motions. The use of the word “must” indicates the rule’s provisions are mandatory. See, e.g., Borel v. Young, 07-0419, p. 10-11 (La.11/27/07);
By the express language of the rule, a Rule 10.1 conference is a prerequisite to filing a motion to compel discovery or other discovery motion, which constitutes |ina step in the prosecution of the action.
The present case is distinguishable from cases holding informal correspondence does not constitute a step, as these cases did not concern a letter scheduling an action specifically required by the District Court before a party could take a step in the prosecution of the action. To treat OHH’s letter as merely informal correspondence ignores the mandatory nature of Rule 10.1. Because a Rule 10.1 conference was a prerequisite to OHH’s motion to compel, we find its April 24th letter effectively functioned as a step in the prosecution of the action.
The second requirement under Clark is the step “must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit.” Clark, 00-3010, p. 6;
This Court in Clark found a defendant-insurer’s unconditional tender of benefits to its insured pursuant to La.Rev.Stat. 22:658(A)(1) constituted an acknowledgment which served as a waiver of the right to assert abandonment. Id., p. 18-22;
Despite this conclusion, the Court proceeded to analyze the purpose behind the “judicial engraftment” of the formal action requirement onto Article 561:
“[T]he courts have refused to characterize matters outside the record as steps in the prosecution of the suit because: (a) of the uncertainty of accepting informal non-legal proceedings as a step preventing abandonment; or (b) of the ex parte, informal nature of the action, without formal notice to the opposing party, as being an insufficient step in the advancement of the suit.”
Id., p. 17;
We find the reasoning in Clark is equally applicable to the present case. The April 24th letter was sent by defendant OHH and served on the remaining defendants. Further, like the insurer in Clark, OHH sent the letter in defense of the suit, i.e., to obtain discovery responses from DOTD. We conclude the purpose 1 ^underlying the formal action requirement would not be served in the present case, as all defendants were aware of the letter, and thus, there is no issue of notice.
In reaching its decision in Clark, this Court also criticized our decision in Melancon v. Continental Casualty Co.,
This holding is also in keeping with our longstanding jurisprudence requiring a liberal construction of Article 561. “[A]ban-donment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly |1shave been abandoned.” Clark, 00-3010, p. 9;
As to Clark’s third requirement, there is no dispute OHH’s letter was sent less than three years before the last step in the action. OHH’s letter was sent on April 24, 2007 and the next formal action in the case occurred on April 22, 2010, when DOTD filed its Requests for Admissions. Accordingly, we find OHH’s letter satisfies the requirements set forth in Clark and interrupts abandonment.
CONCLUSION
In summary, we find sending a letter to all parties scheduling a discovery conference under Louisiana District Court Rule 10.1 constitutes a step in the prosecution or defense of the action. Rule 10.1 requires a discovery conference prior to filing any discovery motion, and discovery motions have the effect of hastening the matter toward judgment. Thus, scheduling a Rule 10.1 conference is a necessary part of the discovery motion process, and a necessary step to hasten a matter toward judgment when a party has failed to comply with discovery requests. Consequently, we reverse the judgment of the Court of Appeal and remand to the District Court for further proceedings.
DECREE
For the foregoing reasons, the judgment of the Court of Appeal is reversed and the matter remanded to the District Court for further proceedings.
REVERSED; REMANDED.
Notes
. Finding this conclusion dispositive of the case, we pretermit discussion of DOTD’s other arguments.
. See, e.g., Compensation Specialties, L.L.C. v. New Eng. Mut. Life Ins. Co., 08-1549, p. 10 (La.App. 1 Cir. 2/13/09);
. Jackson v. Moock, 08-1111, p. 7 (La.App. 1 Cir. 12/23/08);
. Appellate courts have repeatedly treated motions to compel discovery as steps in the prosecution of an action. See Dunn v. City of Kenner, 08-378, p. 8 (La.App. 5 Cir. 3/26/09);
Dissenting Opinion
dissents and assigns reasons.
liFor the following reasons, I conclude the majority erred in reversing the lower courts to find the suit filed by the Louisiana Department of Transportation and Development (“DOTD”) was not abandoned under La.Code Civ. Proc. art. 561.
The rules governing abandonment of an action are set forth in La.Code Civ. Proc. Art. 561, which provides, in pertinent part:
A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, ...
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
Unlike the majority, I find no merit in DOTD’s assertion that the efforts of Oil
DOTD’s remaining claim was pretermit-ted by the majority’s determination that OHH’s efforts to schedule a discovery conference sufficiently interrupted the tolling of the three-year abandonment delay. DOTD urges, in the alternative, that its action was not abandoned because its discovery responses sent to OHH constituted a “step” sufficient to avert abandonment of the action. I also find this argument to be without merit.
La.Code Civ. Proc. art. 561 provides that formal discovery sufficient to constitute a “step” sufficient to preclude abandonment must be “served on all parties.” (emphasis added). It is undisputed that DOTD’s discovery responses were not served on all parties. DOTD asserts its actions stemmed from an “inadvertent failure.” However, it is important to note that the mere intention to take a “step” as contemplated under the statutory rule without having actually complied with the rules is insufficient to interrupt the abandonment period. Benjamin-Jenkins v. Lawson, 2000-0958, p. 4 (La.App. 4 Cir. 3/7/01),
I concede dismissal of a lawsuit is a harsh remedy. However, in the instant case, DOTD made virtually no effort after it filed suit in 2006 to pursue its action. Nothing it did complied with La.Code Civ. art. 561 to prevent abandonment. When DOTD failed to timely respond to OHH’s discovery requests in April 2007, OHH sent a letter seeking compliance and the scheduling of a discovery conference. The following month, DOTD served its responses on OHH, but neglected to serve the remaining parties. Thereafter, no action was taken in the case until April 2010, one |smonth short of three years, when DOTD sought to propound discovery to the defendants.
Abandonment balances the laudable goal of ensuring every litigant has his or her day in court with the policy that lawsuits, once filed, should be prosecuted without unreasonable delay. Clark, 00-3070, p. 10;
Accordingly, I respectfully dissent and would affirm the ruling of the court of appeal.