Opinion
NO. 2023 CA 0859
03-22-2024
Ronn RODNEY v. Mayor Cornell DUKES, City of New Roads City Council, Chief of Police Kevin McDonald, New Roads Police Department, Officer Brooks, Officer Anthony Burns, Jermiah Johnson, XYZ Officer, Individually and in Their Official Capacities, and Their XYZ, QRS, TUV Insurance Companies
Carol D. Powell, Lexing Monroe, Louisiana, Attorney for Plaintiff-Appellant, Ronn Rodney Joyce C. Rabalais, Lafayette, Louisiana, Wade A. Langlois, III, Gino R. Forte, John J. Danna, Jr., Ashley A. Holtzman, Gretna, Louisiana, Thomas W. Darling, Baton Rouge, Louisiana, Attorneys for Defendants-Appellees, Mayor Cornell Dukes, City of New Roads City Council, Chief of Police Kevin McDonald, New Roads Police Department, Officer Brendan Brooks, Officer Anthony Burns, XYZ Officer, Individually and in their Official Capacities, and their XYZ, QRS, TUZ Ins. Cos.
On Appeal from the 18th Judicial District Court, Parish of Pointe Coupee, State of Louisiana, Trial Court No. 50927-B, The Honorable Tonya S. Lurry, Judge Presiding
Carol D. Powell, Lexing Monroe, Louisiana, Attorney for Plaintiff-Appellant, Ronn Rodney
Joyce C. Rabalais, Lafayette, Louisiana, Wade A. Langlois, III, Gino R. Forte, John J. Danna, Jr., Ashley A. Holtzman, Gretna, Louisiana, Thomas W. Darling, Baton Rouge, Louisiana, Attorneys for Defendants-Appellees, Mayor Cornell Dukes, City of New Roads City Council, Chief of Police Kevin McDonald, New Roads Police Department, Officer Brendan Brooks, Officer Anthony Burns, XYZ Officer, Individually and in their Official Capacities, and their XYZ, QRS, TUZ Ins. Cos.
BEFORE: WELCH, WOLFE, AND STROMBERG, JJ. WOLFE, J.
2This appeal arises out of a personal injury claim of unreasonable and excessive force that allegedly occurred when the plaintiff was detained by police officers for the City of New Roads. The plaintiff filed suit against multiple defendants, individually and in their official capacities, including the mayor, the city council, the police chief, and police officers for the City of New Roads. The issue on appeal involves a purely legal question concerning what constitutes a valid and timely request for service of process in suits against political subdivisions, officers, or employees of the state, pursuant to La. R.S. 13:5107(D). Following well-settled law, we affirm the district court’s judgment granting the defendants’ declinatory exceptions raising the objections of insufficiency of citation and insufficiency of service of process, and dismissing the plaintiff’s claims without prejudice.
The defendants include Mayor Cornell Dukes, in his official capacity as mayor of the City of New Roads, the City of New Roads, the City Council of the City of New Roads, Chief Kevin McDonald, individually and in his official capacity as chief of police of the City of New Roads, Officers Brendan Brooks and Anthony Bums, individually and in their official capacities as police officers for the City of New Roads, Jermiah Johnson, and various unnamed insurance companies for all of the defendants. This appeal does not concern the insurance companies or Jermiah Johnson. We note that although the suit caption on the petition includes the New Roads Police Department, the petition itself does not name the police department as a defendant.
FACTS AND PROCEDURAL HISTORY
On July 1, 2022, the plaintiff, Ronn Rodney, fax-filed a petition for damages stemming from allegations of excessive force used against him by police officers in an incident that occurred on July 5, 2021, in New Roads, Louisiana. Mr. Rodney named the police officers as defendants, along with the police chief, the mayor of the City of New Roads, and the New Roads City Council (hereafter referred to as "the City defendants"). The petition expressly indicated " PLEASE HOLD SERVICE " at that time. On October 3, 2022, the clerk of court for the Eighteenth Judicial District Court stamped "RECEIVED & FILED" on two letters received 3from Mr. Rodney’s counsel, each dated September 26, 2022, requesting service on the City defendants.
On November 15, 2022, the City defendants filed declinatory exceptions raising the objections of insufficiency of citation and insufficiency of service of process. The City defendants maintained that Mr. Rodney failed to timely request service within ninety days of filing suit as required by law, and asked that the petition be dismissed. Specifically, the City defendants argued that the trial court lacked jurisdiction because Mr. Rodney’s request for service on them was not timely. The City defendants pointed out that the October 3, 2022 date-stamped as "RECEIVED & FILED" by the clerk of court was too late for service of a pleading naming a government defendant, which must be received within ninety days of the filing of the pleading, pursuant to La. R.S. 13:5107(D)(1). In opposition to the exceptions, Mr. Rodney argued that his request for service was timely as it was made on September 26, 2022, the date that the letters were dated and forwarded to the clerk of court. Additionally, Mr. Rodney indicated that the ninety days did not commence to run until the original petition and payment of fees was received by the clerk’s office on July 5, 2022, rather than the fax-filed date of July 1, 2022. A hearing on the exceptions was held by the district court on March 13, 2023, where a certified copy of the clerk of court’s records was introduced into evidence without objection. Subsequent to the hearing, the district court signed a judgment on May 8, 2023, granting the exception of insufficient citation and service and dismissing Mr. Rodney’s claims against the City defendants without prejudice. At the hearing, the district court reasoned that the filing date of the petition is the date that the facsimile transmission was received by the clerk of court’s office on July 1, 42022. Further, relying oh the mandatory language in La. R.S. 13:5107(D), the district court found that the service request deadline was September 29, 2022, and the clerk of court date-stamped receipt was untimely on October 3, 2022. Mr. Rodney appeals, arguing that the district court’s ruling was in error and, alternatively, that good cause existed as to why the service request was not made within ninety days.
The City defendants also filed a dilatory exception raising the objection of vagueness, which was also set for hearing on March 13, 2023. The district court's ruling as to that exception is not before us in this appeal.
LAW AND ANALYSIS
This case involves a legal question. When the facts are not disputed and the issue before this court is whether the district court properly interpreted and applied the law, the standard of review is simply a review of whether the district court was legally correct or incorrect. Miller v. Hirstius, 2022-0740 (La. App. 1st Cir. 3/15/23), 363 So.3d 532, 537. Louisiana Revised Statutes 13:5107(D)(1) and (2) govern the requisite period for service of citation on a political subdivision of the state or employee thereof, such as the City defendants. As set forth in pertinent part, La. R.S. 13:5107(D) provides:
(1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action ….
(2) If service is not requested by the party filing the action within the period required …, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C)….
(Emphasis added.)
Article 1672(C) provides that such dismissal shall be rendered "unless good cause is shown why service could not be requested." See also Tranchant v. State of Louisiana, Louisiana State University Health Sciences Center, 2008-0978 (La. 1/21/09), 5 So.3d 832, 834.
The laws at issue do not require that a defendant actually be served within ninety days of the filing of the petition, only that service be "requested." 5 Miller, 363 So.3d at 538. To determine whether Mr. Rodney timely requested service, we must ascertain what constitutes a "request" for service pursuant to La. Code Civ. P. art. 1201(C) and La. R.S. 13:5107(D). The Louisiana Supreme Court answered this question in Tranchant, 5 So.3d at 836, when it declared "the ordinary meaning of the word ‘request,’ without more, contemplates a two-party transaction involving one who asks that something be done and one who does what is asked."
Tranchant involved a case with the same facts and issue - whether the ninety-day time limit is satisfied when a letter containing service instructions is mailed versus when a letter containing service instructions is received by the clerk of court. See Tranchant, 5 So.3d at 833, 835. See also Miller, 363 So.3d at 540 n.6. The supreme court noted that the clerk of court cannot act to effect service until he is aware of what is being asked of him. Tranchant, 5 So.3d at 836. "Thus, for purposes of La. R.S. 13:5107(D)(1), service of citation should be deemed ‘requested’ when the clerk receives service instructions from the plaintiff." Id. The supreme court also rejected the position taken by Mr. Rodney in this case, that all that is needed to "request" service is to deposit a letter in the mailbox asking the clerk to effectuate service, stating that "[h]ad the legislature chosen to make the request complete upon mailing, it could have easily done so." Id.
[1] In this case, service was requested when the clerk of court received Mr. Rodney’s service instructions. The clerk’s stamp indicates the letters were received on October 3, 2022, which was more than ninety days after the commencement of the action on July 1, 2022. Consequently, La. R.S. 13:5107(D)(2) provides that the action shall be dismissed without prejudice after contradictory motion as provided in La. Code Civ. P. art. 1672(C). Article 1672(C) mandates that where service is not 6made within ninety days, the action must be dismissed without prejudice "unless good cause is shown why service could not be requested."
We reject Mr. Rodney’s argument that the date his action commenced was on the day the original petition was filed on July 5, 2022. Louisiana Revised Statutes 13:850 provides that the filing date of a fax-filed pleading is the date indicated on the clerk of court’s transmission receipt, as long as the original pleading is filed in compliance with the other requirements of the statute. In this case, it is undisputed that the clerk’s transmission receipt for the fax-filed petition is dated July 1, 2022.
[2, 3] Although "good cause" is not defined in Article 1672(C), Louisiana courts have strictly construed the good cause requirement. Miller, 363 So.3d at 540. Confusion over proper service information or inadvertence by the plaintiff’s counsel are not enough to support a finding of good cause. Id. Mr. Rodney’s counsel cited several reasons for the untimely service request - illness, an internet outage, a pending criminal case against Mr. Rodney, and the mistaken belief that placement of the service request in the mail was sufficient for completing a service request. All of these reasons were rejected by the district court. The letters requesting service could have been faxed to the clerk’s office or delivered by hand by the ninetieth day. Neither of those options were taken and we do not believe Mr. Rodney has shown good cause why service was not timely requested. As the Louisiana Supreme Court held in Tranchant, 5 So.3d at 838, it is mandatory that the action in this case be dismissed without prejudice, because Mr. Rodney did not make a valid request for service upon the City defendants (received by the clerk’s office) within ninety days from the commencement of the action. The district court’s judgment was legally correct.
CONCLUSION
For the stated reasons, the May 8, 2023 judgment of the district court is affirmed. All costs of this appeal are assessed to the plaintiff, Ronn Rodney.
AFFIRMED.