Opinion

David Lepine, Jr. and Cayden Lepine v. State of Louisiana, Department of Wildlife and Fisheries, John Doe Company and Xyz Insurance Company

Court
Louisiana Court of Appeal
Filed
Oct 5, 2022
Status
Published
Author
Judge Paula A. Brown
On the bench
Judge Joy Cossich Lobrano; Judge Paula A. Brown; Judge Dale N. Atkins
Cited by
0 cases
Authority
More cited than 36.7%

The opinion

DAVID LEPINE, JR. AND * NO. 2022-CA-0160

CAYDEN LEPINE

*

VERSUS COURT OF APPEAL

*

STATE OF LOUISIANA, FOURTH CIRCUIT

DEPARTMENT OF WILDLIFE *

AND FISHERIES, JOHN DOE STATE OF LOUISIANA

COMPANY AND XYZ *******

INSURANCE COMPANY

APPEAL FROM

25TH JDC, PARISH OF PLAQUEMINES

NO. 66-873, DIVISION “A”

Honorable Kevin D. Conner, Judge

******

Judge Paula A. Brown

******

(Court composed of Judge Joy Cossich Lobrano, Judge Paula A. Brown, Judge

Dale N. Atkins)

LOBRANO, J., CONCURS IN THE RESULT

Michael C. Ginart, Jr.

Joyce Duhe Young

Nicholas N.S. Cusimano

John C. Ginart

LAW OFFICE OF MICHAEL C. GINART, JR. & ASSOCIATES

2114 Paris Road

Chalmette, LA 70043

COUNSEL FOR PLAINTIFF/APPELLANT

Jeff Landry

Attorney General

LOUISIANA DEPARTMENT OF JUSTICE

P. O. Box 94005

Baton Rouge, LA 70804-9005

William David Coffey

Brad C. Cashio

LOUISIANA ATTORNEY GENERAL’S OFFICE

1450 Poydras Street

Suite 900

New Orleans, LA 70112

Phyllis E. Glazer

LOUISIANA DEPARTMENT OF JUSTICE

1885 North Third Street

4th Floor

Baton Rouge, LA 70802

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED IN PART;

VACATED IN PART;

REMANDED

OCTOBER 5, 2022

PAB

DNA

This is a negligence suit. Appellants, David Lepine, Jr. and Cayden Lepine

(collectively “the Lepines”), appeal the district court’s February 4, 2022 judgment,

which granted Appellee’s – State of Louisiana, Department of Wildlife and

Fisheries (the “LDWF”) – motion for involuntary dismissal for failure to timely

request service, sustained the LDWF’s declinatory exceptions of insufficiency of

service of process and insufficiency of citation and dismissed the claims against

the LDWF without prejudice. For the reasons that follow, we affirm the district

court’s judgment in part, vacate in part, and remand for further proceedings

consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On July 22, 2021, the Lepines filed a petition for damages (the “Petition”)

against LDWF,1 alleging that on July 24, 2020, while operating a boat on the

Delacroix Canal (“the canal”) located in Plaquemines Parish, Louisiana, their boat

struck a wooden pier and steel barriers obstructing the canal, causing them to be

thrown from the boat and suffer injuries.2 The Lepines alleged that the LDWF, as

1 The Lepines also sued John Doe Company and XYZ Insurance Company.

2 Specifically, the Lepines alleged, in part:

II.

1

the owner of the canal, failed to maintain the pier, and that under the doctrine of

respondeat superior, the LDWF was vicariously liable to the Lepines for the

negligence of its employees. The Lepines requested service of citation on July 30,

2021, on the LDWF at 2000 Quail Drive, Baton Rouge, Louisiana, 70808 to the

attention of Cole Garrett, the general counsel for the LDWF (the “general

counsel”). On August 5, 2021, service was effectuated on the LDWF. On August

19, 2021, Sedgwick Claims Management Services, Inc. (“Sedgwick”), the third

party administrator for the State of Louisiana – Office of Risk Management

(“ORM”), emailed counsel for the Lepines to memorialize a call that occurred the

previous day. In the email, Sedgwick confirmed it was in receipt of the Petition

filed by the Lepines against the LDWF, the LDWF did not waive any procedural or

legal defenses and Sedgwick requested an informal 30-day extension on behalf of

the LDWF to review the file, assign counsel, and prepare pleadings. The Lepines

granted the extension.

On November 16, 2021, the LDWF filed a motion for involuntary dismissal

for failure to timely request service (the “motion”) and declinatory exceptions of

insufficiency of service of process and insufficiency of citation (collectively the

“exceptions”), seeking to have the Lepines’ suit dismissed without prejudice.3 The

. . . the [LDWF] had caused to be erected by defendant John Doe Company, a

rock dam and later, a storm dam and wooden piling/pier with steel

barriers/[trusses] in the Delacroix Canal (also known as “Manuel’s Canal”) . . .

which said dam was obstructing the subject canal causing a hazardous condition

to those navigating the said waterway. This was done without public notice and

without notice to boaters and without the placement of any type of lighting and/or

reflective materials.

3 The LDWF also filed a dilatory exception of vagueness in the district court. However, the

exception of vagueness was not argued at the January 10, 2022 hearing with the LDWF’s motion

and other exceptions, was not decided by the district court and is not the subject of the instant

appeal.

2

LDWF argued that the Lepines failed to comply with the mandatory service of

process requirements for all tort actions against the State of Louisiana (the

“State”), its agencies or employees under both La. R.S. 13:5107 and La. R.S.

39:1538.4 Specifically, LDWF contended that the Lepines failed to timely request

service on the department head Jack Montoucet, the secretary of LDWF, and failed

to timely request service on the ORM and the attorney general in accordance with

the statutory requirements. The Lepines later requested service of citation on the

LDWF on December 1, 2021.5

On January 10, 2022, the LDWF’s motion and exceptions came for hearing.

Following the hearing, the district court orally granted the LDWF’s motion,

dismissing the Lepines’ Petition without prejudice, and sustained LDWF’s

exceptions. The district court reasoned that the use of the word “shall” in La. R.S.

39:1538 and La. R.S. 13:5107 made service of process on the department head, the

ORM, and the attorney general, mandatory.

This timely appeal followed.

DISCUSSION

On appeal, the Lepines assert as their sole assignment of error that the

district court erred in finding they failed to timely request and effectuate service on

the LDWF. When there are no disputes as to the facts, as in the case sub judice,

“the ruling on exceptions of insufficiency of citation and service of process is

[reviewed under] a de novo standard of review.” Brown v. Chesson, 20-00730, p. 2

4 La. R.S. 13:5107 and La. R.S. 39:1538, which provide the mandatory statutory provision for

service of citation and process when the State, its agencies, or employees are named defendants,

will be more fully discussed infra.

5 In their brief, the Lepines argue that service of citation was effectuated on the attorney general,

the ORM and head of the LDWF, respectively, on January 11, 12 and 13, 2022, after the motion

and exceptions hearing.

3

(La. 3/24/21), 315 So.3d 834, 836 (citing Wilson v. Dep’t of Pub. Safety & Corr.,

53,433, p. 3 (La. App. 2 Cir. 4/22/20), 295 So.3d 1274, 1276, writ denied, 20-

00717 (La. 9/29/20), 301 So.3d 1176). Accordingly, an appellate court’s

interpretation of the application of La. R.S. 13:5107 and La. R.S. 39:1538 to the

facts of a case presents a question of law and is likewise reviewed under a de novo

standard of review. Id. at p. 3, 315 So.3d at 836 (citing Pierce Founds., Inc. v.

Jaroy Constr., Inc., 15-0785, p. 7 (La. 5/3/16), 190 So.3d 298, 303).

La. R.S. 13:5107 provides the statutory requirements for citation and service

against the state, state agencies or political subdivisions, in relevant part:

A. (1) 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 the 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.

(2) Service shall be requested upon the attorney general within ninety

days of filing suit. This shall be sufficient to comply with the

requirements of Subsection D of this Section and also Code of Civil

Procedure Article 1201(C). However, the duty of the defendant served

through the attorney general to answer the suit or file other responsive

pleadings does not commence to run until the additional service

required upon the department, board, commission, or agency head has

been made.

* * *

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

4

action by any written waiver. If not waived, a request for service of

citation upon the defendant shall be considered timely if requested on

the defendant within the time period provided by this Section,

notwithstanding insufficient or erroneous service.

(2) If service is not requested by the party filing the action within the

period required in Paragraph (1) of this Subsection, the action shall be

dismissed without prejudice, after contradictory motion as provided

in Code of Civil Procedure Article 1672(C),[6] as to the state, state

agency, or political subdivision, or any officer or employee thereof,

upon whom service was not requested within the period required by

Paragraph (1) of this Subsection.

La. R.S. 39:1538, the statutory guidelines for serving claims against the

State in which the State may be found liable for damages, provides, in pertinent

part:7

D. In actions brought pursuant to this Section, process shall be served

upon the head of the department concerned, the office of risk

management, and the attorney general, as well as any others required

by R.S. 13:5107.

“The starting point in the interpretation of any statute is the language of the

statute itself.” Whitley v. State ex rel. Bd. of Sup’rs of La. State Univ. Agric. Mech.

Coll., 11-0040, p. 6 (La. 7/1/11), 66 So.3d 470, 474 (citing M.J. Farms, Ltd. v.

Exxon Mobil Corp., 07-2371, p. 13 (La. 7/1/08), 998 So.2d 16, 27). It is axiomatic

that when statutory language is troublesome, i.e. ambiguous, it falls to the courts to

parse their meaning. As the Supreme Court articulated in Pierce Founds., Inc., 15-

0785, p. 6, 190 So.3d at 303, “[l]egislation is the solemn expression of the

legislative will; thus, the interpretation of legislation is primarily the search for the

legislative intent.” (citing Cat’s Meow, Inc. v. City of New Orleans through Dep’t

6 La. C.C.P. art. 1672(C) provides that a judgment dismissing an action without prejudice shall

be rendered for failure to timely request service unless, after contradictory hearing, good cause is

shown why service could not be requested.

7 La. R.S. 39:1538 was amended by Act 2022 La. Sess. Law Serv. Act 369 (H.B. 78). The

amendment added Subpart E to the statute, which is not pertinent to this case.

5

of Fin., 98-0601, p. 15 (La. 10/20/98), 720 So.2d 1186, 1198; La. Safety Ass’n of

Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-0023, p. 8 (La. 6/26/09),

17 So.3d 350, 355-56; see also La. R.S. 24:177(B)(1)). However, “[w]hen a law is

clear and unambiguous and its application does not lead to absurd consequences,

the law shall be applied as written and no further interpretation may be made in

search of the intent of the legislature.” La. C.C. art. 9. Similarly, “[w]hen the

wording of a section of the revised statutes is clear and free of ambiguity, the letter

of it shall not be disregarded under the pretext of pursuing its spirit.” Whitley, 11-

0040, p. 6, 66 So.3d at 474 (citing La. R.S. 1:4). “Words and phrases shall be read

with their context and shall be construed according to the common and approved

usage of the language.” Id. (quoting La. R.S. 1:3). Nevertheless, “[w]hen the

language of the law is susceptible of different meanings, it must be interpreted as

having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10.

Additionally, “[w]hen the words of a law are ambiguous, their meaning must be

sought by examining the context in which they occur and the text of the law as a

whole.” La. C.C. art. 12.

“Generally, statutes using mandatory language prescribe the result to follow

(a penalty) if the required action is not taken.” Stow-Serge v. Side by Side

Redevelopment, Inc., 20-0015, p. 8 (La. App. 4 Cir. 6/10/20), 302 So.3d 71, 78,

writ denied, 20-00870 (La. 10/14/20), 302 So. 3d 1120. “If the terms of the statute

are limited to what is required to be done, i.e., procedural rules, then the statute is

considered directory even though mandatory language is employed.” Id. (citing

Marks v. New Orleans Police Dep’t, 06-0575, p. 10 (La. 11/29/06), 943 So.2d

1028, 1035). “Provisions designed to secure order, system, and dispatch by

guiding the discharge of duties are usually construed as directory even if worded in

6

the imperative.” Id. (citing Marks, 06-0575, p. 11, 943 So.2d at 1035).

In accordance with La. C.C.P. art 932:

A. When the grounds of the objections pleaded in the declinatory

exception may be removed by amendment of the petition or other

action of plaintiff, the judgment sustaining the exception shall order

the plaintiff to remove them within the delay allowed by the court; if

the court finds, on sustaining the objection that service of citation on

the defendant was not requested timely, it may either dismiss the

action as to that defendant without prejudice or, on the additional

finding that service could not have been timely requested, order that

service be effected within a specified time.

B. If the grounds of the objection cannot be so removed, or if the

plaintiff fails to comply with an order requiring such removal, the

action, claim, demand, issue, or theory subject to the exception shall

be dismissed; except that if an action has been brought in a court of

improper jurisdiction or venue, the court may transfer the action to a

proper court in the interest of justice.

With these tenets in mind, we conduct our de novo review.

Analysis

The Lepines’ argument is two-fold. First, they argue that, pursuant to La.

R.S. 13:5107(A)(1), in suits filed against the State or a state agency, service of

citation may be effectuated on the department, agency head or person, depending

upon the identity of the named defendant. The Lepines contend that although the

service instruction requested service on the LDWF states “‘Attn: Cole Garrett,’” . .

. it does not state through Cole [Garrett].” Thus, the Lepines argue that service of

citation was sufficient because “the statute allows for service to be effectuated on

the department or [person] belonging to the state agency.” Second, the Lepines

argue that in accordance with the Supreme Court holding in Whitley, the ninety-

day service deadline in La. R.S. 39:1538 was inapplicable when the ORM and the

attorney general were not named defendants where service of citation was

7

effectuated on the state agency and the statute does not provide for dismissal for

failure to effectuate service.

In response, the LDWF argues that the district court’s judgment granting its

exception for insufficiency of service should stand because the Lepines did not cite

or effectuate service on all of the essential parties provided for in La. R.S. 13:5107

and 39:1538. The LDWF contends that under these statutes, the Lepines were

required to request service on the ORM and the attorney general, in addition to the

LDWF. We will address each statute in turn.

I. La. R.S. 13:5107(D)(1)

The case sub judice, largely hinges upon our interpretation of 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 . . . . This requirement may be expressly waived by the

defendant in such action by any written waiver. If not waived, a

request for service of citation upon the defendant shall be considered

timely if requested on the defendant within the time period provided

by this Section, notwithstanding insufficient or erroneous service.

Specifically, we refer to that portion of the statute which provides that “[i]f not

waived, a request for service of citation upon the defendant shall be considered

timely if requested on the defendant within the time period provided by this

Section, notwithstanding insufficient or erroneous service.” This Court was

previously asked to consider this exact passage in Wright v. State, 18-0825 (La.

App. 4 Cir. 10/31/18), 258 So.3d 846. In discussing the issue, the Wright Court

explained, “[Respondent’s] contention is that, although he improperly requested

service, his request was timely pursuant to that portion of La. R.S. 13:5107[(D)(1)]

8

. . . . He cites no case law for his position and we are not persuaded by his

argument.” Id. at p. 4, 258 So.3d at 848. We must respectfully disagree.

La. R.S. 13:5107 was initially inscribed into the Revised Statutes via 1975

La. Acts 434, § 1 of the Louisiana Legislature. It was subsequently amended

several times, including a 2014 amendment proposed by Senator Edwin R. Murray

in Senate Bill 222 (“SB 222”), which was enacted by 2014 La. Acts 379, § 1, with

an effective date of May 30, 2014. This amendment added the final sentence of

La. R.S. 5107(D)(1). Our review of the legislative history associated with this

addition made our determination an easy one. On April 28, 2014, Senator Murray

appeared in a House of Representatives committee meeting which was convened to

consider, inter alia, SB 222. In explaining the purpose behind the proposed bill,

Senator Murray focused on the phrase, “notwithstanding insufficient or erroneous

service,”8 and explained that the impetus behind the inclusion of this wording was

so that plaintiffs “did not lose [their] day in court because service was not

accomplished in the time period provided.”9 Additional discussion revealed that

the intent of this amendment was to ensure that insufficient or erroneous service

did not result in a plaintiff’s action being barred by prescription. Senator Murray

went on to add that he had worked closely with the attorney general in formulating

the language to be included.10 In appearing before the Senate committee hearing,

8 “Notwithstanding,” according to Black’s Law Dictionary, is defined as “[d]espite; in spite of . .

. . Not opposing; not availing to the contrary.” BLACK’S LAW DICTIONARY (11th ed. 2019).

*In the Senate committee hearing, Senator Murray referred to this phrase as “the crux of the

bill.” See infra fn. 11 at 15:12.

9 A video recording of the April 28, 2014 House Civil Law and Procedure Committee hearing is

available at:

https://house.louisiana.gov/H_Video/VideoArchivePlayer?v=house/2014/Apr_2014/0428_14_C

L - the testimony begins at 9:25.

9

Senator Murray further clarified his position by offering, “[i]f the information is

inaccurate [in the citation], you run the risk of having your petition dismissed from

court because you have not served the person within the proper timeframe . . . what

this amendment will do . . . as long as you have requested service . . . it will give

you time to properly serve the other party.”11

In addition to this supplemental language in La. R.S. 13:5107, 2014 La. Acts

379, § 1 also codified this precise provision into the general Code of Civil

Procedure article governing service and citation, La. C.C.P. art. 1201(D), as well as

La. C.C.P. art. 3955(D) (relating to service of petitions for divorce under La. C.C.

art. 102). Taken together, we find that through this set of amendments the

legislature has evinced a strong desire to maintain causes of action when an

amendment of the petition can cure defects such as we find in the present case.

Accordingly, we conclude that, in the instant matter, service of citation was timely

requested at the time of the filing of the Lepines’ Petition on July 22, 2021, albeit it

erroneously cited the LDWF’s general counsel rather than the LDWF secretary as

directed by La. R.S. 13:5107(A)(1). Because this timely request served to interrupt

the ninety-day prescriptive period mandated in La. R.S. 13:5107(D)(1), we find

that rather than dismissing the Lepines’ action, the more proper course of action

would have been to allow the Lepines to amend the erroneous citation. This

approach comports with the dictates found in La. C.C.P. art. 932 as outlined supra.

This argument has merit.

II. La. R.S. 39:1538(D)

10 A member of the attorney general’s staff appeared with Senator Murray in support of SB 222

at the House Civil Law and Procedure Committee hearing.

11 A video recording of the April 8, 2014 Senate Civil Law and Procedure Committee hearing is

available at: https://senate.la.gov/s_video/videoarchive.asp?v=senate/2014/04/040814JUDA -

testimony begins at 14:30.

10

The Lepines, relying on the Supreme Court’s reasoning in Whitley, contend

that service of citation on the general counsel, a person belonging to the state

agency, was sufficient service on LDWF. The Lepines maintain that even

assuming the secretary was the only person allowed to receive service on behalf of

LDWF, their failure to request service on the specific person within ninety days of

the commencement of their action did not entitle LDWF to the dismissal of their

claims under La. R.S. 39:1538. We agree.

In Whitley, 11-0040, 66 So.3d 470, the plaintiff filed a medical malpractice

action against the State of Louisiana, through the Board of Supervisors of

Louisiana State University Agricultural Mechanical College on behalf of the

Medical Center of Louisiana at New Orleans–University Campus (the “hospital”).

The plaintiff initially requested service of citation on the Board of Supervisors,

through its chairman and agent for service of process. About two and half years

later, service was effectuated on the ORM and the attorney general. The hospital

filed a declinatory exception for insufficient service of process, which was

overruled by the district court. This Court denied the hospital’s writ application,

and plaintiff sought certiorari review. The Supreme Court granted the hospital’s

application for certiorari review for the sole purpose to determine whether, in a tort

action against a state agency, it is sufficient to serve only the head of the state

agency with citation within the ninety-day timeframe, or whether service of

process was also necessary on the ORM and the attorney general. The Whitley

Court found that although the plaintiff failed to serve the ORM and the attorney

general pursuant to La. R.S. 39:1538(D), unlike La. R.S.13:5107,12 La. R.S.

12 It is important to note that after Whitley was decided, La. R.S. 13:5107 was amended 2012 La.

Acts 770. The amendment changed the designation of paragraph (A) to (A)(1) and added

11

39:1538 did not mandate that service of process be requested within ninety days of

the commencement of the action or be subject to dismissal pursuant to La. C.C.P.

art. 1672(C).13 The Supreme Court explained that because La. R.S. 39:1538(D)14

did not include a timeframe in which to serve the named persons and entities, a

timely request of service on one of the three listed under the statute was sufficient

to put them all on notice of the tort claims against the pertinent State entity. The

Whitley Court concluded “an objection of insufficiency of service based on [La.

R.S.] 39:1538(4) can be cured by subsequent service on those entities/persons not

previously served.” Whitley, 11-0040, p. 18, 66 So.3d at 482.

More recently, in Brown, 20-00730 (La. 3/24/21), 315 So.3d 834, the

Supreme Court granted certiorari review to determine whether the service

requirements of La. R.S. 13:5107(D) are limited to instances where a named

defendant is not timely served. Therein, the patient filed a petition for damages in

the district court against the qualified state healthcare provider (the “doctor”). The

patient alleged the doctor committed medical malpractice during surgery and post-

operation care. The doctor was the only named defendant in the petition, and the

patient requested service of citation on the doctor at his medical office. The doctor

filed declinatory exceptions of insufficiency of citation and service of process and

argued that the patient failed to comply with La. R.S. 13:5107 and La. R.S.

39:1538 by failing to serve the head of the department for the Board of

paragraph (A)(2), making it mandatory for the attorney general to be served within ninety days

of commencement of the action.

13 See supra fn. 5.

14 After Whitley was decided, La. R.S. 39:1538 was amended by 2018 La. Acts 627 with the

addition of Subpart E, which is not pertinent to the case sub judice.

12

Supervisors, the ORM and the attorney general. The district court overruled the

doctor’s exceptions, and the doctor sought supervisory review with this Court.

This Court, relying on Velasquez v. Chesson, 13-1260, (La. App. 4 Cir.

10/8/14), 151 So.3d 812 and Wright, 18-0825 (La. App. 4 Cir. 10/31/18), 258

So.3d 846, reversed the district court’s judgment and found that the doctor –

although named individually in the patient’s petition – was required to receive

timely service of citation through the head of the department for the Board of

Supervisors, the ORM or the attorney general. See Brown v. Chesson, 19-0447,

(La. App. 4 Cir. 4/24/20), 299 So.3d 741. The Supreme Court, in reversing this

Court’s decision, reiterated Whitley and set forth that “while La. R.S. 13:5107(D)

mandates service be requested within ninety days of the commencement of the

action under penalty of dismissal without prejudice, such penalty is limited to

instances where a named defendant is not timely served.” Brown, 20-00730, pp. 4-

5, 315 So.3d at 837 (citing Whitley, 11-0040, pp. 16-17 (La. 7/1/11), 66 So.3d at

480-81). The Brown Court further espoused that ‘“[a]lthough La. R.S.

13:5107(D)(1) clearly requires that service of citation be requested within ninety

days of the commencement of the action, it does not specify the manner of making

such request or when request is deemed to be made.’” Id. at p. 5, 315 So.3d at 837

(quoting Tranchant v. State, 08-0978, p. 5 (La. 1/21/09), 5 So.3d 832, 835).15 The

Brown Court set forth that “[i]f a medical malpractice plaintiff may name an

individual physician state health care provider as a defendant, it is axiomatic that

15 See also, e.g., Draten v. Univ. Med. Ctr. Mgmt. Corp., 20-0519, p. 14 (La. App. 4 Cir.

7/21/21), 325 So.3d 441, 449-50 (where this Court reversed the district court’s granting of an

exception of insufficiency of service of process and citation and concluded that in accordance

with La. C.C.P. art. 1201(C), service of process that is requested within ninety days of the

commencement of the action with the clerk of court by the plaintiff’s petition is a sufficient

request for service of process).

13

service may be requested on this individual pursuant to La. C.C.P. art. 1232.” Id. at

p. 5, 315 So.3d at 838 (citing Detillier v. Kenner Reg’l Med. Ctr., 03-3259, pp. 13-

14 (La. 7/6/04), 877 So.2d 100, 109). Accordingly, the Supreme Court concluded

that the patient timely requested service on the doctor, who was the only named

defendant in her petition.

In cases similar to the instant appeal, Federal Courts have routinely been

called upon to interpret and apply Louisiana law by reviewing the implications of

La. R.S. 39:1538. The Eastern District of Louisiana Court reasoned that, “[s]ince

the statute ‘does not mandate that service of citation be requested within [ninety]

days of filing the petition or that the failure to do so warrants the dismissal of the

action,’ Louisiana courts have consistently held that any insufficiency under La.

R.S. 39:1538 ‘can be cured by subsequent service on those entities/persons not

previously served.’” Gomez v. Aardvark Contractors, Inc., No. 18-4186, 2019 WL

13109598, at *1 (E.D. La. April 22, 2019) (quoting Whitley, 11-0040, pp. 16-18,

66 So.3d at 480, 482).16

The Gomez Court also found the case of Hunter v. La. State Univ. Agr. &

Mech. Coll. ex rel. La. Health Care Servs. Ctr. for Univ. Hosp. at New Orleans,

11-2841 (La. 3/9/12), 82 So.3d 268, to be instructive. The facts of Hunter, as set

forth by this Court in Hunter v. La. State Univ. Agric. & Mech. Coll. ex rel. La.

16 The Gomez Court highlighted several other cases that have held that defects regarding service

of process under La. R.S. 39:1538 may be cured: See also Lewis v. La. Dep’t of Transp. & Dev.,

No. 10-4600, 2011 WL 3502327, at *2 (E.D. La. Aug. 10, 2011) (where the court held that the

failure to serve process on the office of risk management “can be cured by Plaintiffs, so

dismissal of their claims for insufficient service of process is inappropriate at this time.”); see

also Davis v. Nw. State Univ., No. 1:14-1049, 2015 WL 4544556, at *2 (W.D. La. July 27, 2015)

(where the court found, “to avoid dismissal, plaintiff will need to amend his complaint to

properly name the Board of Supervisors and will need to effect service in the manner proscribed

by . . . [La. R.S. 39:1538].”); see also Marcell v. Toyota Motor N. Am., Inc., 11-1072, pp. 4-5

(La. App. 3 Cir. 2/1/12), 84 So.3d 757, 760 (where the court opined that “because Plaintiff can

cure this defective service by requesting and obtaining service on those entities, the trial court

erred in dismissing her claims without allowing her time to do so.”).

14

Health Care Servs. Ctr. for Univ. Hosp. at New Orleans, 10-1406, (La. App. 4 Cir.

6/8/11), 77 So.3d 264, are summarized as follows:

The plaintiff alleged he sustained injuries while visiting University Hospital.

The plaintiff subsequently filed suit, inadvertently naming Louisiana State

University Agricultural Mechanical College on behalf of Louisiana Health Care

Service Center for University Hospital at New Orleans, AKA University Hospital

(the “hospital”) as a defendant. The plaintiff timely requested service of citation on

the attorney general and attempted service of citation on the hospital through an

improper agent for process, rather than the chairman of the Board of Supervisors,

as required by the statute. Following, service of citation was effectuated on the

attorney general but never made on the hospital. After a hearing, the district court

sustained an exception of insufficiency of service of process filed by the hospital

and dismissed plaintiff’s action against the hospital without prejudice. The

plaintiff appealed. On appeal, this Court affirmed the district court’s judgment,

finding that the plaintiff lacked good cause for failing to request service of citation

on the correct agent for service of process for the hospital within ninety-days of

commencement of the suit. The plaintiff filed an application for certiorari review

with the Louisiana Supreme Court, which was granted. On review, the Supreme

Court, in reversing this Court’s decision, found that the plaintiff timely requested

service on the attorney general; thus, placing the attorney general on notice of the

tort action against the hospital and satisfying the requirements of La. R.S. 13:5107.

The Hunter Court further concluded that while the plaintiff did not satisfy the

requirements of La. R.S. 39:1538, the appellate court was errant in dismissing the

action, rather than allowing plaintiff the opportunity to cure the defect by serving

the department head and the ORM.

15

Moreover, in Neighbors of 200 Henry Clay Avenue v. Board of Zoning

Adjustment, 21-0387, pp. 13-14 (La. App. 4 Cir. 1/26/22), 335 So.3d. 255, 264,

this Court applied the very same reasoning:

Since . . . insufficient service of process may possibly be cured by

amending the petition and requesting proper service, the trial court

erred by failing to allow plaintiffs time to amend pursuant to La.

C.C.P. art. 932(A) . . . . Accordingly, we vacate the portion of the trial

court judgment dismissing Plaintiffs’ claims without prejudice and

remand the matter to allow Plaintiffs an opportunity to attempt to cure

the defects. See Interdiction of Hunter, 18-0685, p. 5 (La. App. 4 Cir.

12/19/18), 318 So. 3d 784, 788; Scott v. Jack’s Cookie Co., 413 So. 2d

1334, 1336 (La. App. 1st Cir. 1982).

Turning to the case sub judice, there is no dispute that the plain language of

La. R.S. 39:1538 requires service of citation to be served on the department head,

the ORM, and the attorney general. As previously mentioned, the record reveals

the Lepines requested service of citation on the only named defendant, the LDWF,

to the attention of the general counsel, rather than on the department head – the

proper agent for service of process. Although the Lepines attempted to cure the

defect by subsequently requesting service of citation on the department head of the

LDWF, the ORM and the attorney general on December 1, 2021, service of

citation was not effectuated before the January 10, 2022 hearing on LDWF’s

motion and exceptions. Thus, we conclude that the Lepines failed to satisfy the

requirements of La. R.S. 39:1538. Notwithstanding, having found the Lepines

timely requested service of citation on the LDWF as mandated in La. R.S.

13:5107(D)(1), we have determined that rather than dismissing the their action, the

Lepines should be allowed to cure the defective citation as per La. C.C.P. art. 932.

This argument has merit.

Consequently, while we have attempted to provide a somewhat

comprehensive review of the various jurisprudential permutations regarding both

16

La. R.S. 13:5107 and La. R.S. 39:1538, our review of the legislative history of the

provisions of La. R.S. 13:5107 leads us to the conclusion that the legislature has

disposed of this issue as it pertains to insufficient or erroneous citation. Therefore,

we find that we have a clear legislative mandate as enunciated by Senator Murray

that “[even] if information is inaccurate [in the citation], as long as you have

requested service . . . it will give you time to properly serve the other party,” so

that a plaintiff will “not lose [their] day in court.” We find that the district court

did not err in sustaining the LDWF’s exceptions, as service of citation, although

requested, was not properly effectuated upon the LDWF in accordance with La.

R.S. 13:5107 and La. R.S. 39:1538. However, we conclude the district court erred

in dismissing the Lepines’ suit without prejudice rather than allowing them an

opportunity to cure the defect in their service of citation on LDWF, the ORM and

the attorney general in accordance with La. C.C.P. art. 932(A).

CONCLUSION

For the foregoing reasons, we affirm that portion of the district court’s

judgment that sustains the exceptions of insufficiency of service of process and

insufficiency of citation, vacate the portion of the district court’s judgment

dismissing the Lepines’ claims without prejudice and remand the matter to allow

the Lepines an opportunity to attempt to cure the defects.

AFFIRMED IN PART;

VACATED IN PART;

REMANDED

17

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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