NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-732
GEORGE WHITE, SR., ET AL.
VERSUS
LEONARD HATAWAY, SHERIFF, ET AL.
************
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 19059 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE
SYLVIA R. COOKS JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese, Judges.
AFFIRMED.
Edward Larvadain, III 626 Eighth Street Alexandria, LA 71301 (318) 445-6717 COUNSEL FOR PLAINTIFFS/APPELLANTS George White, Sr., et al.
T. Allen Usry John F. Weeks, II Timothy R. Richardson Usry, Weeks & Matthews 1615 Poydras Street, Suite 1250 New Orleans, LA 70112 (504) 592-4600 COUNSEL FOR DEFENDANTS/APPELLEES Leonard Hataway, former Sheriff of Grant Parish, and Rufus Jones COOKS, Judge.
Plaintiffs appeal the trial court’s judgment finding the lawsuit filed by
Plaintiffs had been abandoned due to the expiration of three years without any
steps taken in the litigation. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 21, 2007, Plaintiffs, George White, Sr., Joy G. Holmes,
Marilyn Wyatt, Shawanda White, Linda White and Fuderica White filed suit
against Defendants, Leonard Hataway, in his capacity as the Sheriff of Grant
Parish, and Rufus Jones, a member of the FBI Task Force. The events which led to
the lawsuit involved the arrest of Plaintiffs pursuant to a search warrant issued and
executed by the Grant Parish Sheriff’s Office and Rufus Jones. It was alleged as
the basis for the issuance of the search warrant that criminal activities were taking
place at a residence in Colfax, Louisiana owned by George White, Sr.
In their lawsuit Plaintiffs alleged excessive force was used by law
enforcement personnel, including pointing firearms at defenseless people and
minors. Plaintiffs also alleged false arrest and harassment on the part of
Defendants.
Original counsel for Defendants was H. Bradford Calvit. Discovery was
ongoing in the case on October 27, 2009, when Defendants’ counsel provided
Plaintiffs with medical releases in preparation for discovery. On January 28, 2013,
Defendants’ present counsel enrolled as additional counsel of record. On that same
day, concluding no further “step” in the proceedings had occurred since October
27, 2009 (in excess of three years), Defendants’ counsel filed an ex parte motion
for abandonment under La.Code Civ.P. art. 561. Defendants filed a memorandum
in support of its motion for abandonment and Plaintiffs filed an opposition
memorandum. The trial court granted the motion after a hearing on May 7, 2013.
Plaintiffs have appealed. ANALYSIS
Louisiana Code of Civil Procedure Article 561 provides that an action is
abandoned when the parties fail to take any step in the prosecution or defense of
the case for a period of three years. A trial court shall enter a formal order of
dismissal on ex parte motion of any party seeking to dismiss the case on this
ground.
Louisiana Code of Civil Procedure Article 561 imposes three requirements
to avoid abandonment: 1) a party must take some step toward the prosecution or
defense of the action; 2) the step must be taken in the proceeding and, with the
exception of formal discovery, must appear in the record; and 3) the step must be
taken within three years of the last step taken by either party. Louisiana Dep’t of
Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-912, pp. 4-5 (La.12/6/11), 79
So.3d 978, 981, citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5-6
(La. 5/15/01), 785 So.2d 779, 784.
A “step” is a formal action before the court intended to hasten the suit
towards judgment or is the taking of formal discovery. Oilfield Heavy Haulers, 79
So.3d 978. As Defendants noted, the law “requires something more than a passive
effort to keep a suit on the docket of the court. . . .” Barber v. Bozeman, 577 So.2d
180, 181 (La.App. 1 Cir. 1991).
Defendants maintain the last “step” taken in this case was on October 27,
2009, when Defendants’ counsel provided Plaintiffs with medical releases in
preparation for discovery. They argued, and the trial court agreed, that no further
“steps” in the prosecution or defense of the action were undertaken after that date.
Plaintiffs argued below, and again on appeal, that letters sent to Defendants’
previous counsel requesting defense counsel contact him to discuss discovery and
litigation were sufficient to interrupt the three-year abandonment period. The record contains two letters sent from Plaintiffs’ counsel to H. Bradford Calvit. On
July 11, 2011 , counsel for Plaintiffs sent the following letter to Mr. Calvit:
After reviewing my files, I noticed that this case has been stagnate. I plan to proceed with this case in the upcoming months. I hope to set depositions in the next several months. I have some trials scheduled for this fall and I hope to complete them so I can turn my attention to this case.
Please review your files so that we can move this case along.
On July 22, 2012, counsel for Plaintiffs sent a second letter to Mr. Calvit:
I recently reviewed my files and I noticed this case. Please call me so that we can proceed with [d]iscovery and litigation in the very near future.
I look forward to hearing from you in this matter.
Plaintiffs contend these letters constitute a “step” in the prosecution of the case and
clearly demonstrate an intent to not abandon the lawsuit. They cite the case of
Pecot v. Calcasieu-Cameron Hospital Service District, 03-1102, p. 5 (La.App. 3
Cir. 2/18/04), 867 So.2d 56, 60-61, wherein this Court stated:
The law favors maintaining an action whenever possible so that the aggrieved party has his day in court. The policy underlying this requirement is the prevention of protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. Article 561 is not to be used to dismiss cases where the plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. It is not designed to dismiss actions on mere technicalities but to dismiss those actions which in fact have been abandoned. Dismissal of a suit is the harshest of remedies. The law favors and justice requires that an action be maintained wherever possible so that an aggrieved party has his day in court to which he is entitled. Abandonment proceedings in accordance with Article 561 should be given a liberal interpretation and any action or step taken by plaintiff to move his case toward judgment should be considered.
Plaintiffs also contend Mr. Calvit acted in bad faith in “intentionally ignor[ing]”
the letters and “decid[ing] to transfer the case to another lawyer who was not local
for the purpose of filing a Motion to Enroll and filing a Motion for
Abandonment all at the same time without even informing opposing counsel that
he was no longer involved in the pending case.” Plaintiffs assert it was always their intention to pursue this matter, and they should not have been denied their day
in court under the particular facts of this case.
The trial court heard these arguments, and concluded under the law that no
action sufficient to interrupt the abandonment period was taken in the prosecution
or defense of this matter in over three years. The trial court stated the following:
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
13-732
GEORGE WHITE, SR., ET AL.
VERSUS
LEONARD HATAWAY, SHERIFF, ET AL.
************
APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 19059 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE
SYLVIA R. COOKS JUDGE
Court composed of Sylvia R. Cooks, Jimmie C. Peters, and James T. Genovese, Judges.
AFFIRMED.
Edward Larvadain, III 626 Eighth Street Alexandria, LA 71301 (318) 445-6717 COUNSEL FOR PLAINTIFFS/APPELLANTS George White, Sr., et al.
T. Allen Usry John F. Weeks, II Timothy R. Richardson Usry, Weeks & Matthews 1615 Poydras Street, Suite 1250 New Orleans, LA 70112 (504) 592-4600 COUNSEL FOR DEFENDANTS/APPELLEES Leonard Hataway, former Sheriff of Grant Parish, and Rufus Jones COOKS, Judge.
Plaintiffs appeal the trial court’s judgment finding the lawsuit filed by
Plaintiffs had been abandoned due to the expiration of three years without any
steps taken in the litigation. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 21, 2007, Plaintiffs, George White, Sr., Joy G. Holmes,
Marilyn Wyatt, Shawanda White, Linda White and Fuderica White filed suit
against Defendants, Leonard Hataway, in his capacity as the Sheriff of Grant
Parish, and Rufus Jones, a member of the FBI Task Force. The events which led to
the lawsuit involved the arrest of Plaintiffs pursuant to a search warrant issued and
executed by the Grant Parish Sheriff’s Office and Rufus Jones. It was alleged as
the basis for the issuance of the search warrant that criminal activities were taking
place at a residence in Colfax, Louisiana owned by George White, Sr.
In their lawsuit Plaintiffs alleged excessive force was used by law
enforcement personnel, including pointing firearms at defenseless people and
minors. Plaintiffs also alleged false arrest and harassment on the part of
Defendants.
Original counsel for Defendants was H. Bradford Calvit. Discovery was
ongoing in the case on October 27, 2009, when Defendants’ counsel provided
Plaintiffs with medical releases in preparation for discovery. On January 28, 2013,
Defendants’ present counsel enrolled as additional counsel of record. On that same
day, concluding no further “step” in the proceedings had occurred since October
27, 2009 (in excess of three years), Defendants’ counsel filed an ex parte motion
for abandonment under La.Code Civ.P. art. 561. Defendants filed a memorandum
in support of its motion for abandonment and Plaintiffs filed an opposition
memorandum. The trial court granted the motion after a hearing on May 7, 2013.
Plaintiffs have appealed. ANALYSIS
Louisiana Code of Civil Procedure Article 561 provides that an action is
abandoned when the parties fail to take any step in the prosecution or defense of
the case for a period of three years. A trial court shall enter a formal order of
dismissal on ex parte motion of any party seeking to dismiss the case on this
ground.
Louisiana Code of Civil Procedure Article 561 imposes three requirements
to avoid abandonment: 1) a party must take some step toward the prosecution or
defense of the action; 2) the step must be taken in the proceeding and, with the
exception of formal discovery, must appear in the record; and 3) the step must be
taken within three years of the last step taken by either party. Louisiana Dep’t of
Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-912, pp. 4-5 (La.12/6/11), 79
So.3d 978, 981, citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5-6
(La. 5/15/01), 785 So.2d 779, 784.
A “step” is a formal action before the court intended to hasten the suit
towards judgment or is the taking of formal discovery. Oilfield Heavy Haulers, 79
So.3d 978. As Defendants noted, the law “requires something more than a passive
effort to keep a suit on the docket of the court. . . .” Barber v. Bozeman, 577 So.2d
180, 181 (La.App. 1 Cir. 1991).
Defendants maintain the last “step” taken in this case was on October 27,
2009, when Defendants’ counsel provided Plaintiffs with medical releases in
preparation for discovery. They argued, and the trial court agreed, that no further
“steps” in the prosecution or defense of the action were undertaken after that date.
Plaintiffs argued below, and again on appeal, that letters sent to Defendants’
previous counsel requesting defense counsel contact him to discuss discovery and
litigation were sufficient to interrupt the three-year abandonment period. The record contains two letters sent from Plaintiffs’ counsel to H. Bradford Calvit. On
July 11, 2011 , counsel for Plaintiffs sent the following letter to Mr. Calvit:
After reviewing my files, I noticed that this case has been stagnate. I plan to proceed with this case in the upcoming months. I hope to set depositions in the next several months. I have some trials scheduled for this fall and I hope to complete them so I can turn my attention to this case.
Please review your files so that we can move this case along.
On July 22, 2012, counsel for Plaintiffs sent a second letter to Mr. Calvit:
I recently reviewed my files and I noticed this case. Please call me so that we can proceed with [d]iscovery and litigation in the very near future.
I look forward to hearing from you in this matter.
Plaintiffs contend these letters constitute a “step” in the prosecution of the case and
clearly demonstrate an intent to not abandon the lawsuit. They cite the case of
Pecot v. Calcasieu-Cameron Hospital Service District, 03-1102, p. 5 (La.App. 3
Cir. 2/18/04), 867 So.2d 56, 60-61, wherein this Court stated:
The law favors maintaining an action whenever possible so that the aggrieved party has his day in court. The policy underlying this requirement is the prevention of protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. Article 561 is not to be used to dismiss cases where the plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action. It is not designed to dismiss actions on mere technicalities but to dismiss those actions which in fact have been abandoned. Dismissal of a suit is the harshest of remedies. The law favors and justice requires that an action be maintained wherever possible so that an aggrieved party has his day in court to which he is entitled. Abandonment proceedings in accordance with Article 561 should be given a liberal interpretation and any action or step taken by plaintiff to move his case toward judgment should be considered.
Plaintiffs also contend Mr. Calvit acted in bad faith in “intentionally ignor[ing]”
the letters and “decid[ing] to transfer the case to another lawyer who was not local
for the purpose of filing a Motion to Enroll and filing a Motion for
Abandonment all at the same time without even informing opposing counsel that
he was no longer involved in the pending case.” Plaintiffs assert it was always their intention to pursue this matter, and they should not have been denied their day
in court under the particular facts of this case.
The trial court heard these arguments, and concluded under the law that no
action sufficient to interrupt the abandonment period was taken in the prosecution
or defense of this matter in over three years. The trial court stated the following:
With respect to the merits of the various arguments, the case law is clear that correspondence and telephone conversations between counsel, that is not a normal step in the prosecution. Mr. Larvadain [counsel for Plaintiffs], you can call it unclean hands, you can call it unprofessional, you can call it a lot of different things, and you may be right. But, the case law is clear that unless it’s filed with the Clerk of Court it’s not a formal step. Unless the deposition is set, it’s not a formal step. And three years is long enough to take a step, according to the legislature. This isn’t my rule. This is the legislature’s rule. They say if you don’t move . . . if one side or the other doesn’t move the case in three years, it’s abandonment. And it’s not me abandoning it, it’s by operation of law. All I’ve done is recognize the fact that for three years nothing formally took place.
A review of the jurisprudence confirms the result reached by the trial court.
The Louisiana Supreme Court in Oilfield Heavy Haulers, 79 So.3d at 982-83,
stated as follows:
“Extrajudicial efforts,” such as informal settlement negotiations between parties, have repeatedly been held to be insufficient to constitute a step in the prosecution of the action. Clark [v. State Farm Mut. Auto. Ins. Co.], 00-3010, p. 16 [(La.5/15/01)]; 785 So.2d [779] at 790. Indeed, multiple appellate courts have found informal correspondence between parties regarding discovery matters is not a step sufficient to interrupt abandonment. [See, e.g., Compensation Specialties, L.L.C. v. New Eng. Mut. Life Ins. Co., 08-1549, p. 10 (La.App. 1 Cir. 2/13/09), 6 So.3d 275, 282, writ denied, 09-575 (La. 4/24/09), 7 So.3d 1200 (letter confirming extension of time for discovery); Hica Steel Foundry & Upgrade Co. v. Arklatex Envtl. Consultants, Inc., 39,460, p. 8 (La.App. 2 Cir. 4/6/05), 899 So.2d 802, 807 (letter suggesting a meeting to develop a discovery plan); Naccari v. Namer, 01-2410, p. 4-5 (La.App. 4 Cir. 2/6/02), 809 So.2d 1157, 1160 (letter requesting more complete answers to discovery).] Additionally, courts have held “simply attempting to schedule” a discovery matter, such as depositions, through informal correspondence is not a step in the prosecution of an action. [Jackson v. Moock, 08-1111, p. 7 (La.App. 1 Cir. 12/23/08), 4 So.3d 840, 844- 45; see Barrois v. Burrus, 02-1367, p. 4-5 (La.App. 3 Cir. 6/11/03), 854 So.2d 941, 944, writ denied, 03-1984 (La.10/31/03), 857 So.2d 486 (“[S]imply discussing or disputing taking depositions was not enough to constitute a step in prosecution.”)]. Louisiana jurisprudence is clear that correspondence such as took place in this case
is viewed as merely an “extra-judicial effort” which is insufficient to constitute a
“step” for the purposes of interrupting abandonment. Thus, the recent
correspondence exchanged does not constitute a step in the prosecution of this
case, and, by operation of law, Plaintiffs’ suit was abandoned.
DECREE
For the foregoing reasons the judgment of the trial court is affirmed. Costs
of this appeal are assessed against Plaintiffs-Appellants.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules— Courts of Appeal, Rule 2-16.3.