Summary
In Padua, the Louisiana Supreme Court granted writs and reversed the Fourth Circuit, which had found that the plaintiff's act in mailing a deposition notice to opposing counsel–that was neither received by the attorney nor filed with the court–did not constitute a "step" in the prosecution so as to preclude dismissal of the lawsuit based on abandonment. SeePadua v. Gray, 2007-0824, pp. 6-7 (La. App. 4 Cir. 1/16/08), 975 So.2d 138, 141, writ granted, rev'd, 2008-0582 (La. 5/16/08), 980 So.2d 699.
Summary of this case from Williams v. Capital OneOpinion
No. 2008-C-0582.
May 16, 2008.
Prior report: La.App., 975 So.2d 138.
In re Padua, Kevin A.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, No. 02-8280; to the Court of Appeal, Fourth Circuit, No. 2007-CA-0824.
Writ Granted. Reversed and Remanded. Any formal discovery served on all parties, whether or not filed of record, is a step in the prosecution of an action. LSAC.C.P. arts. 561(B). Plaintiffs counsel submitted proof that a notice of deposition was placed in the mail to defense counsel prior to the expiration of the abandonment period. This discovery notice, service of which was complete upon mailing, was a step in the prosecution of the case which precluded a finding of abandonment. LSA-C.C.P. arts. 1313(A) and 1474(A) and (C)(4). The judgment dismissing plaintiffs suit on grounds of abandonment is reversed, and this case is remanded to the district court for further proceedings.
VICTORY, J., would deny.
TRAYLOR, J., would deny.
KNOLL, J., would deny.