ADRENA S. FREEMAN NO. 20-C-283
VERSUS FIFTH CIRCUIT
OCHSNER CLINIC FOUNDATION, DR. COURT OF APPEAL GEORGE M. FUHRMAN, TOURO INFIRMARY AND DR. CATHY SWAIN-JONES STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 799-284, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
November 10, 2020
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT GRANTED SJW HJL JJM COUNSEL FOR PLAINTIFF/RESPONDENT, ADRENA S. FREEMAN Richard H. Barker, IV
COUNSEL FOR DEFENDANT/RELATOR, CATHY SWAIN-JONES, MD Michelle A. Bourque Mark E. Kaufman
COUNSEL FOR DEFENDANT/RESPONDENT, OCHSNER CLINIC FOUNDATION AND DR. GEORGE M. FUHRMAN Don S. McKinney William K. Wright, IV
COUNSEL FOR DEFENDANT/RESPONDENT, TOURO INFIRMARY Valerie E. Fontenot WINDHORST, J.
Relator, Dr. Cathy Swain-Jones, seeks review of the trial court’s August 12,
2020 judgment denying her exception of insufficiency of service of process and
motion for involuntary dismissal. In her writ application, relator contends that the
trial court erred in finding good cause for not requesting service on relator. Relator
argues that two internet searches for relator’s address are not evidence of diligence
or good cause for failing to request service. Relator further contends that plaintiff’s
counsel knew the identity of relator’s counsel in the medical review panel
proceeding but made no attempt to contact relator’s counsel in an attempt to ascertain
relator’s address. For the following reasons, we grant relator’s writ application,
reverse the trial court’s August 12, 2020 judgment, sustain relator’s exception of
insufficiency of service of process, grant relator’s motion for involuntary dismissal,
and dismiss the claims asserted by plaintiff against relator, Dr. Cathy Swain-Jones,
without prejudice.
PROCEDURAL HISTORY
On September 10, 2019, plaintiff filed a petition in the 24 th JDC for medical
malpractice against several defendants, including relator. The petition alleged that
relator “is a resident of Abu Dhabi, UAE” and “was doing business in this district
and state at all material times.” The petition also alleged, “It was reported that Dr.
Swain-Jones closed the practice and relocated to the [sic] Abu Dhabi, UAE.”
Plaintiff requested that service on relator be “temporarily” withheld and no service
address was provided. Under the provisions of La. C.C.P. art. 1201 C, the last day
for requesting service was 90 days after filing, or December 10, 2019.
On April 3, 2020, relator filed an exception of insufficiency of service of
process and a motion for involuntary dismissal, arguing that plaintiff did not request
service on her within 90 days of filing the petition, and thus, she is entitled to be
dismissed without prejudice pursuant to La. C.C.P. art. 1672 C. Relator argued that
20-C-283 1 plaintiff had more than six months between filing her petition and the COVID-19
closures to request service. Because plaintiff did not request service within 90 days
of filing her petition, relator contended that she was entitled to a dismissal without
prejudice pursuant to La. C.C.P. art. 1672 C. In opposition, plaintiff argued that
good cause existed for her failure to request service, “i.e. that upon information and
belief, [relator] is living and working in some unknown location in the United Arab
Emirates.” Plaintiff contended that this fact was alleged by her in the petition and it
was not denied by defendant.
In reply, relator contended that plaintiff did not show good cause and she
should be dismissed from the lawsuit because (1) plaintiff did not even attempt to
request service upon her within 90 days; (2) under the law, “attempts” at requesting
service that lack diligence do not constitute good cause; (3) plaintiff was aware that
relator was represented by counsel in the medical review panel proceeding but did
not attempt to contact relator’s prior counsel to request waiver of service, acceptance
of service or relator’s address for long-arm service; (4) plaintiff’s internet searches
are not dated; (5) plaintiff did not show that the internet searches were conducted
within 90 days of filing her petition; and (6) the two internet searches for relator’s
address is not evidence of diligence or good cause for failing to request service on
relator. In support, relator attached her search of the Louisiana State Board of
Medical Examiners’ directory showing relator’s address.
LAW and ANALYSIS
La. C.C.P. art. 1201 C provides in pertinent part, “Service of the citation shall
be requested on all named defendants within ninety days of the commencement of
the action.” If service is not requested within 90 days, La. C.C.P. art. 1672 C requires
dismissal without prejudice of the claim(s) against a named defendant for whom
service of process has not been requested “unless good cause is shown why service
could not be requested.” When, on the face of the pleadings, the 90-day time limit
20-C-283 2 for requesting service has been exceeded without request, the burden of proof is upon
the party alleging “good cause” to show “why service could not be requested.”
A trial court's finding of "good cause" for why service could not be requested
within the proper time period is a question of fact subject to the manifest error
standard of review. Corbin v. La. Dep't of Highways, 44,882 (La. App. 2 Cir.
12/09/09), 26 So.3d 945, 947; See also Davis v. Caraway, 14-264 (La. App. 5 Cir.
10/29/14), 164 So.3d 223, 225. Louisiana courts strictly construe the good cause
requirement of La. C.C.P. art. 1672 C. Barnett v. Louisiana State University Medical
Center-Shreveport, 02-2576 (La. 02/07/03), 841 So.2d 725, 726; Boyd v. Picayune,
11-119 (La. App. 5 Cir. 11/15/11), 82 So.3d 298, 300. Although good cause is not
defined in La. C.C.P. art. 1672 C, Louisiana courts have held that mere confusion,
inadvertence, or mistake in requesting service on the part of plaintiff’s counsel is not
a sufficient basis for good cause. Norbert v. Loucks, 01-1229 (La. 06/29/01), 791
So.2d 1283, 1285; Johnson v. University Medical Center in Lafayette 07-1683 (La.
11/21/07), 968 So.2d 724, 725; Liberty Mut. v. Noble, 04-727 (La. App. 5 Cir.
11/30/04), 889 So.2d 1158, 1159. Confusion as to how or upon whom service must
be made is not “good cause” for not properly requesting service timely. Taylor v.
LSU Medical Center, 38,944 (La. App. 2 Cir. 10/14/04), 892 So.2d 581, writ denied,
05–0480 (La. 05/20/05), 902 So.2d 1049.
Although consideration of exhibits not admitted into evidence was not
assigned as an error in this case, the Supreme Court and this Court have routinely
held that appellate courts may not consider evidence not properly admitted into
evidence, whether the lack of admission into evidence was assigned as error or not.
Quinn v. La. Citizens Prop. Ins. Corp., 12-152 (La. 11/02/12), 118 So.3d 1011;
Barnes v. Jacob, 13-596 (La. App. 5 Cir. 12/12/13), 131 So.3d 363, 364. Here, the
parties referred to plaintiff’s exhibits and relator’s exhibits; however, none of these
exhibits were offered or admitted into evidence. Exhibits not formally admitted into
20-C-283 3 evidence could not be considered by the trial court in its decision, they are not
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ADRENA S. FREEMAN NO. 20-C-283
VERSUS FIFTH CIRCUIT
OCHSNER CLINIC FOUNDATION, DR. COURT OF APPEAL GEORGE M. FUHRMAN, TOURO INFIRMARY AND DR. CATHY SWAIN-JONES STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 799-284, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
November 10, 2020
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT GRANTED SJW HJL JJM COUNSEL FOR PLAINTIFF/RESPONDENT, ADRENA S. FREEMAN Richard H. Barker, IV
COUNSEL FOR DEFENDANT/RELATOR, CATHY SWAIN-JONES, MD Michelle A. Bourque Mark E. Kaufman
COUNSEL FOR DEFENDANT/RESPONDENT, OCHSNER CLINIC FOUNDATION AND DR. GEORGE M. FUHRMAN Don S. McKinney William K. Wright, IV
COUNSEL FOR DEFENDANT/RESPONDENT, TOURO INFIRMARY Valerie E. Fontenot WINDHORST, J.
Relator, Dr. Cathy Swain-Jones, seeks review of the trial court’s August 12,
2020 judgment denying her exception of insufficiency of service of process and
motion for involuntary dismissal. In her writ application, relator contends that the
trial court erred in finding good cause for not requesting service on relator. Relator
argues that two internet searches for relator’s address are not evidence of diligence
or good cause for failing to request service. Relator further contends that plaintiff’s
counsel knew the identity of relator’s counsel in the medical review panel
proceeding but made no attempt to contact relator’s counsel in an attempt to ascertain
relator’s address. For the following reasons, we grant relator’s writ application,
reverse the trial court’s August 12, 2020 judgment, sustain relator’s exception of
insufficiency of service of process, grant relator’s motion for involuntary dismissal,
and dismiss the claims asserted by plaintiff against relator, Dr. Cathy Swain-Jones,
without prejudice.
PROCEDURAL HISTORY
On September 10, 2019, plaintiff filed a petition in the 24 th JDC for medical
malpractice against several defendants, including relator. The petition alleged that
relator “is a resident of Abu Dhabi, UAE” and “was doing business in this district
and state at all material times.” The petition also alleged, “It was reported that Dr.
Swain-Jones closed the practice and relocated to the [sic] Abu Dhabi, UAE.”
Plaintiff requested that service on relator be “temporarily” withheld and no service
address was provided. Under the provisions of La. C.C.P. art. 1201 C, the last day
for requesting service was 90 days after filing, or December 10, 2019.
On April 3, 2020, relator filed an exception of insufficiency of service of
process and a motion for involuntary dismissal, arguing that plaintiff did not request
service on her within 90 days of filing the petition, and thus, she is entitled to be
dismissed without prejudice pursuant to La. C.C.P. art. 1672 C. Relator argued that
20-C-283 1 plaintiff had more than six months between filing her petition and the COVID-19
closures to request service. Because plaintiff did not request service within 90 days
of filing her petition, relator contended that she was entitled to a dismissal without
prejudice pursuant to La. C.C.P. art. 1672 C. In opposition, plaintiff argued that
good cause existed for her failure to request service, “i.e. that upon information and
belief, [relator] is living and working in some unknown location in the United Arab
Emirates.” Plaintiff contended that this fact was alleged by her in the petition and it
was not denied by defendant.
In reply, relator contended that plaintiff did not show good cause and she
should be dismissed from the lawsuit because (1) plaintiff did not even attempt to
request service upon her within 90 days; (2) under the law, “attempts” at requesting
service that lack diligence do not constitute good cause; (3) plaintiff was aware that
relator was represented by counsel in the medical review panel proceeding but did
not attempt to contact relator’s prior counsel to request waiver of service, acceptance
of service or relator’s address for long-arm service; (4) plaintiff’s internet searches
are not dated; (5) plaintiff did not show that the internet searches were conducted
within 90 days of filing her petition; and (6) the two internet searches for relator’s
address is not evidence of diligence or good cause for failing to request service on
relator. In support, relator attached her search of the Louisiana State Board of
Medical Examiners’ directory showing relator’s address.
LAW and ANALYSIS
La. C.C.P. art. 1201 C provides in pertinent part, “Service of the citation shall
be requested on all named defendants within ninety days of the commencement of
the action.” If service is not requested within 90 days, La. C.C.P. art. 1672 C requires
dismissal without prejudice of the claim(s) against a named defendant for whom
service of process has not been requested “unless good cause is shown why service
could not be requested.” When, on the face of the pleadings, the 90-day time limit
20-C-283 2 for requesting service has been exceeded without request, the burden of proof is upon
the party alleging “good cause” to show “why service could not be requested.”
A trial court's finding of "good cause" for why service could not be requested
within the proper time period is a question of fact subject to the manifest error
standard of review. Corbin v. La. Dep't of Highways, 44,882 (La. App. 2 Cir.
12/09/09), 26 So.3d 945, 947; See also Davis v. Caraway, 14-264 (La. App. 5 Cir.
10/29/14), 164 So.3d 223, 225. Louisiana courts strictly construe the good cause
requirement of La. C.C.P. art. 1672 C. Barnett v. Louisiana State University Medical
Center-Shreveport, 02-2576 (La. 02/07/03), 841 So.2d 725, 726; Boyd v. Picayune,
11-119 (La. App. 5 Cir. 11/15/11), 82 So.3d 298, 300. Although good cause is not
defined in La. C.C.P. art. 1672 C, Louisiana courts have held that mere confusion,
inadvertence, or mistake in requesting service on the part of plaintiff’s counsel is not
a sufficient basis for good cause. Norbert v. Loucks, 01-1229 (La. 06/29/01), 791
So.2d 1283, 1285; Johnson v. University Medical Center in Lafayette 07-1683 (La.
11/21/07), 968 So.2d 724, 725; Liberty Mut. v. Noble, 04-727 (La. App. 5 Cir.
11/30/04), 889 So.2d 1158, 1159. Confusion as to how or upon whom service must
be made is not “good cause” for not properly requesting service timely. Taylor v.
LSU Medical Center, 38,944 (La. App. 2 Cir. 10/14/04), 892 So.2d 581, writ denied,
05–0480 (La. 05/20/05), 902 So.2d 1049.
Although consideration of exhibits not admitted into evidence was not
assigned as an error in this case, the Supreme Court and this Court have routinely
held that appellate courts may not consider evidence not properly admitted into
evidence, whether the lack of admission into evidence was assigned as error or not.
Quinn v. La. Citizens Prop. Ins. Corp., 12-152 (La. 11/02/12), 118 So.3d 1011;
Barnes v. Jacob, 13-596 (La. App. 5 Cir. 12/12/13), 131 So.3d 363, 364. Here, the
parties referred to plaintiff’s exhibits and relator’s exhibits; however, none of these
exhibits were offered or admitted into evidence. Exhibits not formally admitted into
20-C-283 3 evidence could not be considered by the trial court in its decision, they are not
properly before this Court, and we cannot consider them.
It is clear from the record that service on Dr. Swain-Jones was not requested
until after the exception, and eight months after the expiration of 90 days. No request
for a current address, presumably in Abu Dhabi, was made on counsel who
represented Dr. Swain-Jones before the medical review panel.1 There was no request
for service on the last-known address, or any other. No timely long arm service was
attempted. No request for appointment of a curator was timely made. Given that
the requirement to request service within 90 days of filing suit is to be strictly
construed, the unsupported explanation as to why plaintiff could not request service
clearly did not constitute good cause within well-settled strict application of La.
C.C.P. art. 1201C.
Nevertheless, had the exhibits been admitted into evidence, our conclusion
would be no different. It is undisputed that plaintiff made no attempt in a 6-month
period to serve relator. The petition alleged only that “It was reported that Dr.
Swain-Jones closed the practice and relocated to the Abu Dhabi, UAE,” but plaintiff
did not specify what attempts, if any, were made to locate an address in Abu Dhabi,
or anywhere else.
Plaintiff attached and identified two undated exhibits to her memorandum in
opposition to the exception. Exhibit A is alleged to be a “screenshot of the Louisiana
State Board of Medical Examiners’ directory” showing that relator is not listed as a
member. Exhibit B is alleged to be a “screenshot of the current Google search engine
results for Swain-Jones.”2 Exhibit B, however, is not “Google search engine
1 We recognize that such a request would probably have been fruitless, and that medical review
panel counsel for Dr. Swain-Jones was not yet counsel of record in this case at the time. Nevertheless, when strictly construed as required, “good cause” cannot be assumed, and all logical and reasonable means to obtain information to effect service should be attempted. 2 Neither exhibit is a clear screen print taken digitally by the computer of the entire image displayed
on its screen. Both are grainy smartphone photos of most of the computer screens, but they appear to be sufficiently legible.
20-C-283 4 results,” but is a photo of a computer screen showing a single internet page. Based
on counsel’s explanation in the transcript, it was a page from the ‘My Business’
website. It contains a local Metairie address and a phone number for Dr. Swain-
Jones, which counsel states is disconnected. The memorandum makes no allegation
regarding the address in Exhibit B. Significantly, no screenshot or photo of the
“current Google search engine results” or SERP3 was provided, nor were any other
results of the Google search provided or revealed. There was no assertion or
suggestion that this was the only result of the Google internet search. Whether the
Google search contained other useful sites or information was not addressed.
Moreover, the exhibits are undated. Whether they were produced within 90
days of filing suit is determinative of whether they may have any value to show
“good cause” within the 90 days. The Google search was alleged to have been
“current” on or about July 21, 2020, the date of the Certificate of Service of
plaintiff’s opposition memorandum signed by plaintiff’s counsel. If the Google
internet search was “current” at that time, it was performed seven months past the
expiration of the 90-day time limit for requesting service. By that time, it could not
have been the basis for good cause for not timely requesting service seven months
earlier. At best, the date of the internet search is unknown. Thus, even considering
the exhibits, we find that plaintiff did not provide support for a finding of “good
cause” for why service could not be requested within 90 days of filing the petition.
Therefore, based upon our review of the writ application, transcript, and
exhibits attached thereto, we find the trial court was manifestly erroneous in denying
relator’s exception of insufficiency of service of process and motion for involuntary
dismissal. Accordingly, we grant relator’s writ application, reverse the trial court’s
August 12, 2020 judgment, sustain relator’s exception of insufficiency of service of
3 Search Engine Results Page, which is the list of results of an internet search provided by the
search engine.
20-C-283 5 process, grant relator’s motion for involuntary dismissal, and dismiss the claims
asserted in this case by plaintiff against relator, Dr. Swain-Jones, without prejudice.
WRIT GRANTED
20-C-283 6 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 10, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-C-283 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE) MARK E. KAUFMAN (RELATOR) MICHELLE A. BOURQUE (RELATOR) DON S. MCKINNEY (RESPONDENT) VALERIE E. FONTENOT (RESPONDENT)
MAILED RICHARD H. BARKER, IV (RESPONDENT) WILLIAM K. WRIGHT, IV (RESPONDENT) ATTORNEY AT LAW ATTORNEY AT LAW 601 POYDRAS STREET 701 POYDRAS STREET SUITE 2345 SUITE 4500 NEW ORLEANS, LA 70130 NEW ORLEANS, LA 70139