I respectfully dissent from the majority opinion which affirms the trial courts granting of the Motion to Dismiss on the Grounds of Abandonment and the sustaining of the Declinatory Exceptions of Insufficiency of Service of Process and Citation.
In this matter, Ms. Small requested service via a letter time stamped by the Avoyelles Parish Clerk of Court dated February 12, 2018. Although the trial court stated in his reasons for judgment that this letter does not “appear of record,” the record before this court includes a copy of this letter. The letter from Ms. Small, addressed to the Avoyelles Parish Clerk of Court “hereby requested [the clerk of court] to issue service of process and citation on the defendants in the above referenced suit” to the following parties:
1. CVS/Pharmacy though its agent for service of process:
CT Corporation System
3867 Plaza Tower Dr.
Baton Rouge, LA 70816; and
2. AR Scientific, Inc. via Long Arm Statute at:
1100 Orthodox St.
Philadelphia, Pennsylvania 19124-3168
At the top of the letter which appears in the record before this court, there is a time/date stamp from the Avoyelles Parish Clerk of Court which indicates it was received on February 12, 2018 at 3:05 p.m. This letter clearly evidences Ms. Smalls request to issue service of process and citation on CVS Pharmacy and AR Scientific. Why this letter, requesting service of process and citation on the two named defendants set forth in in her petition, was not in the official court record is unclear. The time stamp on the letter leaves little doubt that it was received timely by the Avoyelles Clerk of Court Office. Certainly, defendants have presented nothing to dispute the authenticity of the time stamp on the letter. Moreover, in the hearing on the motion for new trial, the trial court stated that “all of the filings that have been received by the clerk of court in the record shall be made an exhibit to this proceeding, together with any memorandums in support or in opposition to the motions before the court and the exhibits attached thereto.” Therefore, I find the February 12, 2018 letter is properly in the record of these proceedings. I further note Ms. Smalls letter requesting service and citation was made within 90 days of commencement of the action as required by La.Code Civ.P. art. 1201(C).
Although it is not completely clear, it does appear the trial court accepted that Ms. Small did timely request service and citation on CVS Pharmacy and AR Scientific. Despite this the trial court still found the “Judgment sustaining the Exceptions of Insufficiency of Service and Citation are proper in that even to this day proper service has not been [effected].” The trial court further found:
[W]ith due diligence Small could have properly located the correct names of the defendants and have them properly served. Very simply, even considering the February 12, 2018 letter requesting service, Smalls failure to exercise due diligence in following up on this request for a period in excess of three years certainly does not indicate that this Court should grant additional time to [effect] service.
CVS cites several cases in support of the trial courts conclusion that Ms. Small was required to show good cause for her failure to effect service, but failed to do so. In Methvien v. Our Lady of the Lake, 20-1081 (La.App. 1 Cir. 4/16/21), 318 So.3d 329, CVS cites language from that case where the court stated “[t]he jurisprudence has consistently placed some responsibility on the party and attorney and found good cause under [La.Code Civ.P. ] art. 1672(C) when the attorney could have taken steps to verify service, particularly after a long period of time.” The facts in Methvien are distinguishable from those in the present case. In Methvien, there was no dispute that the plaintiff requested service in his petition, but did not pay the fees to the Sheriffs office within ninety days of the petition. In this case, Ms. Small sought and received pauper status, thus she did not have to pay any fees to have service and citation made on defendants.
CVS also cites Ayers v. Goodwill Industries, 03-1576 (La.App. 4 Cir. 3/10/04), 870 So.2d 348, but that case also is distinguishable. In that case, the plaintiff filed a lawsuit on October 4, 1999, along with an application pauper status, which was denied four days later. The petition contained service information, but advanced no costs, so no service was effected until February of 2003, well past the time limit for requesting service and citation. Ayers contended that she was unaware of the denial of pauper status, but her petition was nonetheless dismissed without prejudice. The appellate court affirmed, holding that no good cause existed for the failure to pay costs and request service for a period of over three years after the denial of pauper status, during which lengthy time frame neither Ayers nor her attorney made any effort to inquire as to her pauper status. In the present case, Ms. Small both timely filed her request for citation and service and was accorded pauper status by the trial court.
CVS next cites Joseph v. North American Risk Services, 11-1417 (La.App. 4 Cir. 2/29/12), 86 So.3d 752, where service was not effected due to an outstanding filing fee balance. The court held that counsels inadvertence or mistake in assuming that service would be made, and in not verifying service by checking the record for several years is not good cause.
Lastly, CVS cites Rollins v. City of Zachary, 00-160 (La.App. 1 Cir. 2/16/01), 808 So.2d 439. In that case, the court rejected plaintiffs good cause argument for failure to timely serve the defendant where plaintiff maintained a letter was sent to the Clerk of Court requesting service by regular mail and the Clerk of Court never received the letter. The court in Rollins held the plaintiff could have sent the service request by certified mail with return receipt requested, hand-delivered the request, or simply placed a telephone call to the Clerk of Courts office before expiration of the ninety-day period. In the instant case, Ms. Small testified she hand-delivered the request for service and citation to the Avoyelles Parish Clerk of Courts office and the letter has a time stamp to confirm that fact.
The cases cited by CVS are all factually distinguishable from the present case. Moreover, both CVS and the trial court misapply the law in this area as well. Louisiana Code of Civil Procedure article 1672(C) is not applicable to the facts of this case. That article provides:
A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time. (Emphasis added)
Louisiana Code of Civil Procedure article 1201(C) provides:
Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. The requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation. (Emphasis added)
In this case, Ms. Smalls February 12, 2018, hand-delivered letter to the Clerk of Courts office was within ninety (90) days from the commencement of the action. Therefore, La.Code Civ.P. art. 1672 is not applicable as there was no violation of the ninety day time period set forth in La.Code Civ.P. art 1201(C). Ms. Small has no legal requirement to establish good cause for the failure of the clerk of court and the sheriff to effect service. Therefore, I find the trial court erred in sustaining the declinatory exceptions of insufficiency of service of process and citation.
Having found that Ms. Small did timely request service and citation on the defendants CVS Pharmacy and AR Scientific, that serves to interrupt the three-year abandonment period. Accordingly, I find the trial court erred in granting the Motion to Dismiss on Ground of Abandonment.
COOKS, Chief Judge, dissents.