Hunter v. Louisiana State University Agricultural & Mechanical College ex rel. Louisiana Health Care Services Center for University Hospital at New Orleans

77 So. 3d 264, 2011 La. App. LEXIS 1794, 2011 WL 2419786
CourtLouisiana Court of Appeal
DecidedJune 8, 2011
DocketNo. 2010-CA-1406
StatusPublished
Cited by4 cases

This text of 77 So. 3d 264 (Hunter v. Louisiana State University Agricultural & Mechanical College ex rel. Louisiana Health Care Services Center for University Hospital at New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunter v. Louisiana State University Agricultural & Mechanical College ex rel. Louisiana Health Care Services Center for University Hospital at New Orleans, 77 So. 3d 264, 2011 La. App. LEXIS 1794, 2011 WL 2419786 (La. Ct. App. 2011).

Opinions

MICHAEL E. KIRBY, Judge.

11 Plaintiff, John J. Hunter, appeals a trial court judgment granting the declinatory exception of insufficiency of service of process asserted by the State of Louisiana, through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College for the Louisiana State University Health Sciences Center, University Hospital (“LSUHSC”), dismissing without prejudice his claims against LSUHSC. For the reasons that follow, we affirm.

On November 17, 2008, plaintiff was allegedly injured while visiting University Hospital in New Orleans. According to plaintiff, he was traversing the front entrance ramp to the hospital and stopped to lean against the guardrail when, suddenly, it gave way, causing him to fall backwards onto a metal pole protruding from the ground below.

As a result of the accident, plaintiff filed a petition for damages on November 17, 2009, inadvertently naming the defendant as “Louisiana State University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, AKA University | ^Hospital.”1 The plaintiff timely requested service on both “Attorney General James D. Caldwell, 1885 North 3rd Street, Baton Rouge, LA 70802” and “Louisiana State University Agricultural and Mechanical College on behalf of Louisiana Health Care Services Center for University Hospital at New Orleans, AKA University Hospital, 8550 United Plaza Blvd., Suite 400, Baton Rouge, LA 70809,” which was the incorrect agent for service of process.2 The attorney general was served with the suit on December 3, 2009, but LSUHSC was never served.

On March 17, 2010, LSUHSC filed an exception of insufficiency of service of process, arguing that plaintiff did not comply with La. R.S. 13:5107 and La. R.S. 39:1538(4)3 Specifically, LSUHSC argued that service was defective as it was not made on both the Attorney General’s office and the head of the LSU Board of Supervisors, as required by La. R.S. 13:5107(A). It argued that “Louisiana Health Care Services Center” was not an entity subject to suit and that plaintiff named the wrong agent for service of process for LSUHSC and University Hospital. LSUHSC prayed that the action be dismissed without prejudice pursuant to La. R.S. 13:5107(D) as a result of plaintiffs [266]*266failure to request proper service on the LSU Board of Supervisors within ninety (90) days of commencing the action.

| o,Plaintiff opposed the exception, arguing that because he timely requested service on both the attorney general and the state agency, and the attorney general was, in fact, served, he satisfied the requirements of La. R.S. 13:5107. He argued that La. R.S. 39:1538 did not apply in this case because it does not provide for the dismissal of an action against the state for insufficient service of process. Plaintiff argued no legal authority exists for reading La. R.S. 39:1538 in pari materia with La. R.S. 13:5107(D) to obtain dismissal of an action against the state where service was timely requested and effected on the attorney general.

Following a contradictory hearing, the trial court granted the exception and dismissed the plaintiffs claims against LSUHSC without prejudice.

“Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.” La. C.C.P. art. 1201(A). Proper citation is the foundation of all actions. Igbinoghene v. St. Paul Travelers Insurance Company, 2011-0124, p. 2 (La.4/4/11), 58 So.3d 452, 453 (citing Naquin v. Titan Indemnity Co., 00-1585, p. 8 (La.2/21/01), 779 So.2d 704, 710).

The requirements of service of process and citation upon LSUHSC are found in La. R.S. 13:5107(A):

In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in | accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.

The requisite period in which service is to be made upon LSUHSC, as well as the penalty for the failure to do so, are provided in La. R.S. 13:5107(D):

(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 or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defen[267]*267dants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

La. C.C.P. art. 1672(C) requires dismissal without prejudice when “service has not been requested within the time prescribed by Article 1201(C) ... unless good cause is shown why service could not be requested, in which case the court Rinay order that service be effected within a specified time.” See Igbinoghene, supra, 2011-0124 at p. 2, 58 So.3d at 452.

Louisiana courts strictly construe the good cause requirement of La. C.C. P. art. 1672(C). Barnett v. Louisiana State University Medical Center-Shreveport, 2002-2576, p. 1 (La.2/7/03), 841 So.2d 725, 726. Consequently, plaintiffs are strictly held to the obligation of serving the correct agent for service of process. Id. Although “good cause” is not defined in La. C.C.P. art. 1672(C), courts have concluded that mere confusion regarding a party’s correct name or inadvertence on the part of plaintiffs counsel to request service is not a sufficient basis for good cause. See Norbert v. Loucks, 2001-1229, p. 3 (La.6/29/01), 791 So.2d 1283, 1285 (citations omitted).

La. R.S.

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77 So. 3d 264, 2011 La. App. LEXIS 1794, 2011 WL 2419786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-louisiana-state-university-agricultural-mechanical-college-ex-lactapp-2011.