Opinion
NO. 2019-CA-1093
07-15-2020
Dominique MACQUET v. Amanda WESTBAY
Richard H. Barker, IV, 601 Poydras Street, Suite 2345, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT Richard G. Perque, LAW OFFICES OF RICHARD G. PERQUE, LLC, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
Richard H. Barker, IV, 601 Poydras Street, Suite 2345, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
Richard G. Perque, LAW OFFICES OF RICHARD G. PERQUE, LLC, 700 Camp Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Chief Judge James F. McKay, III, Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Dale N. Atkins )
Judge, Roland L. Belsome
Dominique Macquet appeals the trial court's judgment dismissing his lawsuit for failure to timely request service. For the reasons that follow, the trial court's ruling is reversed and the matter is remanded for further proceedings.
Facts and Procedural History
On January 14, 2019, this lawsuit was filed after offensive comments were published about Mr. Macquet in response to a NOLA.com article. Mr. Macquet asserted claims of libel, slander, and defamation against NOLA.com commenter, Amanda Westbay. At the time of filing, believing Amanda Westbay may be a fictitious name, service was withheld. Once the lawsuit was filed, Mr. Macquet served NOLA.com with a subpoena duces tecum seeking electronic data and identification information for Amanda Westbay. The information gathered from NOLA.com indicated that the comments posted under the name Amanda Westbay originated from an email account belonging to Wendy Deben's minor daughter. Ms. Deben is Mr. Macquet's ex-wife. Thereafter, on April 16, 2019, Mr. Macquet filed an amending and supplemental petition naming Ms. Deben as a defendant. On April 29, 2019, service was requested on Ms. Deben.
In response, Ms. Deben filed a motion to dismiss and declinatory exception of insufficiency of service of process, arguing that because the original petition was not served on a defendant within ninety days of its filing the petition had to be dismissed. The trial court sustained the exception and this appeal followed.
Standard of Review
Appellate courts review a dismissal of an action for failure to timely request service under a manifest error standard. Llopis v. Louisiana State Bd. Of Dentistry , 2013-0659, p. 5 (La.App. 4 Cir. 6/11/14), 143 So.3d 1211, 1214 (citing Johnson v. Brown , 03-0679, p. 2 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 322.).
Discussion
On appeal, Mr. Macquet argues that the trial court erred when it dismissed his action based on his failure to timely request service of his original petition.
La. C.C.P. art 1201(C) provides the general rules regarding timely service of citation. The statute states in pertinent part:
Service of 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.
La. C.C.P. art 1201(C). (emphasis added).
It is well established that "[t]he purpose of requiring that service be requested within ninety days of the suit's commencement is to insure that the defendant receives notice of the suit within a reasonable time after it has been commenced." Llopis , 2013-0659, p. 6, 143 So.3d at 1214. (citations omitted). In this case, service of citation was withheld on Amanda Westbay, the defendant named in the original petition. Then, Mr. Macquet filed a supplemental and amending petition naming an additional defendant, Wendy Deben. Ms. Deben was served with the original and the supplemental and amended petition within ninety days of being named as a defendant in accordance with La. C.C.P. art. 1201(C). Accordingly, service on Ms. Deben was timely.
Further, La. C.C.P. art. 1672(C) allows for the defendant and/or "any other party" to request a dismissal without prejudice when the plaintiff fails to request service on a named defendant in a timely manner. The specific statutory language 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...
La.C.C.P. art. 1672(C). (emphasis added). The language of article 1672(C) is clear and unambiguous. The consequences for untimely service (dismissal without prejudice) is defendant specific. In this case, any motion for involuntary dismissal for untimely service of citation would only have effect as to the action against Amanda Westbay, who was not served in accordance with La. C.C.P. art. 1201(C).
For these reasons, it was manifestly erroneous for the trial court to dismiss Dominique Macquet's lawsuit. Accordingly, the trial court's judgment is reversed, and the matter is remanded for further proceedings.
REVERSED AND REMANDED
LOMBARD, J., DISSENTS WITH REASONS
LOMBARD, J. DISSENTS WITH REASONS,
The decision in this matter is one within a trial court's discretion and can only be reversed for "manifest error." See Llopis v. Louisiana State Bd. of Dentistry, 2013-0659, p. 5 (La. App. 4 Cir. 6/11/14), 143 So. 3d 1211, 1214 (citation omitted).
The plaintiff filed this lawsuit for libel, slander, and defamation on January 24, 2019, after reading a comment to an article published on NOLA.com. He named Amanda Westbay, the commentator's signatory name, as defendant but withheld service. Pursuant to a subpoena duces tecum served on NOLA.com seeking production by January 28, 2019, of pertinent data related to the source of the comment, the plaintiff confirmed that the comment was posted from an email account belonging to the minor daughter of his former wife, Wendy Deben. Nonetheless, instead of timely amending his petition to name Ms. Deben as the defendant and move the case forward in a timely manner, the plaintiff waited until April 16, 2019, more than ninety-two days after his original petition was filed, to file an amending and supplemental petition naming Ms. Deben as defendant. Two weeks later, on April 29, 2019, (105 days after commencement of the action), service was requested on Ms. Deben.
As a matter of judicial efficiency, lawsuits need to move forward and the court rules provide a framework to aid trial courts in this process. The pertinent rules in this case, La. Code Civ. Proc. arts. 1201(C) and 1672(C), require service on the defendant be requested within 90 days of filing the petition and, upon a contradictory motion, judgment of dismissal without prejudice is appropriate when the plaintiff fails to request timely service unless good cause is shown why service could not be requested.
In this case, the plaintiff made no request for service within ninety days of commencement of the action, nor does he argue that he had good cause for failing to do so. Rather, the plaintiff insists that the rule is not applicable (and the majority agrees) because he filed an amended and supplemental petition after the ninety day period had expired and that allowed him an additional ninety days (from the day of filing) to request service. There is, however, no clear statutory or precedential authority to support this argument and, until today, no court has ever interpreted the rules and case law to reach this conclusion. Thus, viewing the district court judgment under the standard of review applicable in this case, manifest error, rather than the de novo standard implicitly relied upon in the majority opinion, I respectfully dissent. The dismissal of the lawsuit without prejudice is not a harsh sanction denying the plaintiff his day in court but, rather, an appropriate sanction for his failure to abide by the court rules; the majority's decision in this case serves to circumscribe a trial court's traditional discretionary authority the efficient management of its docket.