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04/03/02 "See News Release 028 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 01-C-2056 LOUWANNA COLEMAN JAMES v. FORMOSA PLASTICS CORPORATION OF LOUISIANA
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF EAST BATON ROUGE

KIMBALL, Justice We granted certiorari in this case to consider whether the abandonment period found in La. C.C.P. art. 561 was interrupted as to plaintiff's action against one defendant while plaintiff was pursuing the dismissal of a co-defendant on grounds of prescription on appeal. For the reasons that follow, we find that plaintiff's action against the defendant left in the trial court was abandoned because the trial court was divested of jurisdiction only over those issues reviewable under the appeal, nothing prevented plaintiff from pursuing the action against the defendant left in the trial court, and the parties failed to take a step in the prosecution or defense of that action for more than three years. Facts and Procedural History On June 7, 1993, plaintiff, Louwanna Coleman James, brought this suit against Formosa Plastics Corporation of Louisiana ("Formosa") and XYZ Insurance Company for injuries she allegedly sustained as a result of her exposure to a hazardous material in the course and scope of her employment. On December 13, 1994, after this court rendered a decision in Billiot v. B.P. Oil Co., 93-1118 (La. 9/29/94), 645 So.2d

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604, plaintiff amended her petition to include her employer, West-Paine Laboratories, Inc. ("West-Paine"), as a defendant, and to add a claim for exemplary or punitive damages under former La. C.C. art. 2315.3 against Formosa and West-Paine. Subsequently, West-Paine filed an exception of prescription which was granted by the trial court on March 23, 1995. On April 18, 1995, the trial court signed plaintiff's motion and order for a devolutive appeal. On April 4, 1996, the court of appeal rendered a decision affirming the trial court's judgment granting West-Paine's exception of prescription. James v. Formosa Plastics Corp. of La., 95-1794 (La. App. 1 Cir. 4/4/96), 672 So.2d 319. This court denied plaintiff's application for a writ of certiorari on November 22, 1996. James v. Formosa Plastics Corp. of La., 961091 (La. 11/22/96), 683 So.2d 285. Subsequently, on June 1, 1999, Formosa filed an Ex Parte Motion for Order of Dismissal of plaintiff's suit based on the ground that plaintiff's suit was abandoned pursuant to La. C.C.P. art. 561. On September 10, 1999, following a contradictory hearing, the trial court granted the motion, dismissing plaintiff's claims against Formosa. A majority of the court of appeal reversed the trial court's judgment, reasoning that while the judgment granting West-Paine's exception of prescription was on appeal, the abandonment provision was inapplicable. James v. Formosa Plastics Corp. of La., 00-0148 (La. App. 1 Cir. 4/25/01), __ So.2d __. The court of appeal held that the entire case must be within the jurisdiction of the trial court for the period of abandonment to run in that court. Id. at p. 2, __ So.2d at __. We granted certiorari upon Formosa's application to consider the correctness of the court of appeal's judgment. James v. Formosa Plastics Corp. of La., 01-2056 (La. 11/9/01), __ So.2d __. Law and Discussion

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Before this court, Formosa argues that the court of appeal erred in precluding the application of La. C.C.P. art. 561, the abandonment article, to cases involving multiple defendants when one defendant is involved in an appeal unrelated to the issues facing the remaining defendants. According to Formosa, plaintiff's appeal of the judgment in favor of West-Paine was completely independent of her claims against Formosa and the trial court therefore clearly retained jurisdiction over the case against Formosa. Formosa also contends the court of appeal's opinion misinterprets the term "action" as used in Article 561. In response, plaintiff argues that the date of the last action taken in the trial court in this case was December 12, 1996, the date this court's denial of writs in the West-Paine matter was filed into the trial court record, and, therefore, there was no abandonment when Formosa filed its motion to dismiss on June 1, 1999. Plaintiff further contends that the application for writs taken against West-Paine in this court served to interrupt the abandonment period as to all defendants. Plaintiff concludes that she was unable to pursue her claim against Formosa pending the outcome of her application for a writ of certiorari in this court and her claims against Formosa should not have been dismissed by the trial court. Article 561 provides in pertinent part: A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years . . . . (2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.

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B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.1 Article 561 requires three things: (1) that a party take some "step" in the prosecution or defense of the action; (2) that it be done in the trial court and, with the exception of formal discovery, on the record of the suit; and (3) that it be taken within three years of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 5/15/01), 785 So.2d 779; Chevron Oil Co. v. Traigle, 436 So.2d 530 (La. 1983). A party takes a "step" in the prosecution or defense of an action when he takes formal action before the court intended to hasten the matter to judgment, or when he takes a deposition with or without formal notice. Clark at p. 6, 785 So.2d at 784. See also Chevron, 436 So.2d at 532; Melancon v. Continental Cas. Co., 307 So.2d 308, 312 (La. 1975); Sliman v. Araguel, 196 La. 859, 200 So. 280, 281 (1941); Augusta Sugar Co. v. Haley, 163 La. 814, 112 So. 731, 732 (1927). Plaintiff argues that the last step in the prosecution of this action occurred when notice of this court's denial of writs was filed in the trial court record on December 12, 1996. In making this argument, plaintiff incorrectly assumes that the term "action" as used in Article 561 means the entire lawsuit brought against all defendants. Article 561 provides that "[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court" for three years. The Code defines "action" as a demand for the enforcement of a legal right. La. C.C.P. art. 421. See also State

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Effective July 1, 1998, this article was amended by Act No. 1221 of 1997 to reduce the abandonment period from five to three years. The Act specifically provided that it "shall apply to all pending actions." The amended version of La. C.C.P. art. 561 applies to this case. See Theisges v. Boudreaux, 99-1458 (La. 7/2/99), 747 So.2d 4; Bourgeois v. Veal, 99-0786 (La. 5/7/99), 740 So.2d 1291.
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through Dept. of Highways v. Lessley, 287 So.2d 792, 794 (La. 1973);2 1 Frank L. Maraist & Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL PROCEDURE

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