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REBECCA PATE, SHARON A.                                  *                    NO. 2008-CA-1147
CLARK AND REVA MORGAN
INDIVIDUALLY AND ON                                      *
BEHALF OF HER MINOR                                                           COURT OF APPEAL
CHILD RENIA GANT AS THE                                  *
NATURAL TUTRIX                                                                FOURTH CIRCUIT
*
VERSUS                                                   STATE OF LOUISIANA
*
REGIONAL TRANSIT
AUTHORITY, XYZ
INSURANCE COMPANY AND
TRANSIT MANAGEMENT OF
SOUTHEAST LOUISIANA
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2005-9901, DIVISION “D-16”
HONORABLE LLOYD J. MEDLEY, JUDGE
JUDGE PAUL A. BONIN
(COURT COMPOSED OF CHIEF JUDGE JOAN BERNARD ARMSTRONG,
JUDGE PATRICIA RIVET MURRAY, JUDGE PAUL A. BONIN)
PIUS A. OBIOHA
LAW OFFICES OF PIUS A. OBIOHA & ASSOCIATES, LLC
1550 NORTH BROAD STREET
NEW ORLEANS, LA 70119
COUNSEL FOR REBECCA PATE, SHARON CLARK, REVA MORGAN
INDIVIDUALLY, AND ON BEHALF OF THEIR MINOR CHILD,
RENIA GANT, AS THE NATURAL TUTRIX
VERONICA E. HENRY
WILKERSON & HENRY, LLC
650 POYDRAS STREET
1913 THE POYDRAS CENTER
NEW ORLEANS, LA 70130
COUNSEL FOR REGIONAL TRANSIT AUTHORITY AND TRANSIT
MANAGEMENT OF SOUTHEAST LOUISIANA, INC.
MARCH 11, 2009
JUDGMENT AMENDED AND, AS
AMENDED, AFFIRMED




Rebecca Pate1 claims that she was injured while a passenger on an RTA2 bus
on February 15, 2002.  On August 1, 2005, she filed this lawsuit against the RTA.
The RTA filed an exception of prescription, which the district court granted on
December 26, 2007. For the reasons which follow, we amend the trial court’s
judgment and, as amended, affirmed.
History of the Case
This is the second suit filed by Ms. Pate against the RTA.  The first was
timely filed on May 23, 2002.3  The suit was dismissed without prejudice on May
24, 2005.   The basis for the dismissal without prejudice was that Ms. Pate had
failed to comply with the requirement of La. R.S. 13:5107(D), that she request
service of citation within ninety days of filing her suit.  Since the court had found
that she had not made a timely request of the clerk, the first suit was dismissed
without prejudice, as provided by La. C.C.P. art. 1672(C).                                                                The
1 For simplicity we refer to all the plaintiffs as Rebecca Pate or Ms. Pate.  The other plaintiffs are Sharon Clark and
Reva Morgan, individually and on behalf of her minor child, Renia Gant.
2 For simplicity we refer to the Regional Transit Authority as RTA, and include in our reference the Transit
Management of Southeast Louisiana, or TMSEL, an entity which participates in the operation of the RTA buses in
New Orleans.
3 That filing bore # 2002-8189 on the docket of the Civil District Court for the Parish of Orleans.
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judgment of dismissal in the first suit was not appealed. It is now a final, non-
appealable judgment.  La. C.C.P. arts. 2082, 2083(A), and 2087(A).
The second petition for damages is virtually identical to the first.  The RTA
excepted on the grounds that Ms. Pate’s claim was prescribed.   La. C.C.P. art.
927(A)(1).  The prescriptive period for Ms. Pate’s action is one year from the day
the injury or damage is sustained.  La. C.C. art. 3492.  The one year would have
expired on Tuesday, February 18, 2003.4
RTA’s Invocation of La. R.S. 13:5107(D)(3)
La. C.C. art. 3462, which is generally applied, provides the interruption of
prescription in specified circumstances and reads:
Prescription is interrupted when the owner commences
action against the possessor, or when the obligee commences
action against the obligor, in a court of competent jurisdiction
and venue.  If action is commenced in an incompetent court, or
in an improper venue, prescription is interrupted only as to a
defendant served by process within the prescriptive period.
La. C.C. art. 3463 goes on to provide:
An interruption of prescription resulting from the filing of a
suit in a competent court and in the proper venue or from service
of process within the prescriptive period continues as long as the
suit is pending.  Interruption is considered never to have
occurred if the plaintiff abandons, voluntarily dismisses the
action at any time either before the defendant has made any
appearance of record or thereafter, or fails to prosecute the suit at
trial.
If the general rule applied, Ms. Pate’s first lawsuit which was timely filed in a
competent court and proper venue would have interrupted prescription until it was
dismissed on May 24, 2005.   “If prescription is interrupted, the time that has run is
4 February 15, 2003 was a Saturday and February 17, 2003 was a legal holiday.  See La. C.C. art. 3454.
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not counted.  Prescription commences to run anew from the last day of
interruption.” La. C.C. art. 3466. The one year prescriptive period would have
begun anew and her second suit would have been timely, as it was filed within one
year of that date.
However, the RTA again invokes the provisions of La. R.S. 13:5107(D)5:
(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 against
other defendants, 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 if prescription as to other persons shall
continue.
5
At least one judge of this court has questioned the constitutionality of La. R.S. 13:5107 in that it seems to place
“the state and its employees in a better position in litigation matters”.  See Tranchant v. State, 07-1273, p. 2-3 (La.
App. 4 Cir. 3/13/08), 978 So.2d 1174, 1180 (Tobias, J., concurring).  Neither in Tranchant nor in this case did the
parties raise the constitutionality of the statute and the issue was never reached.  Tranchant was recently overruled
by the Supreme Court.   08-0978 (La. 1/21/09), --- So.2d. ---, 2009 WL 130294, holding that the plaintiffs did not
timely request service on the state defendants within ninety days of filing suit.
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(emphasis supplied)
The RTA is a “political subdivision.”6  La. R.S. 48:1654(A)7 provides in
part:
There is hereby created the Regional Transit Authority, subject
to the conditions hereinafter set forth, which shall be a body
politic and corporate and a political subdivision of the state of
Louisiana. . .
Therefore, the time that Ms. Pate’s first lawsuit was pending from its filing
to its dismissal did not interrupt or suspend the running of prescription.8  La. C.C.
arts. 3462 and 3463 are rendered inapplicable to a situation in which service was
not requested on “the state, a state agency, or a political subdivision, or any officer
or employee thereof” within ninety days of the filing of an otherwise timely
lawsuit in a competent court and a proper venue.9
The Louisiana Supreme Court impliedly recognized this result in Bordelon
v. Medical Center of Baton Rouge, 03-0202, p. 11 (La. 10/21/03), 871 So.2d 1075,
1084.   Bordelon resolved the question whether La. C.C.P. art. 1672(C) itself
operated to render La. C.C. arts. 3462 and 3463 inapplicable to suits dismissed
without prejudice when the defendant was a non-state party.   Bordelon concluded
that “unless that unserved party is the state, that lawsuit, although not timely
6 See Johnson v. Regional Transit Authority, 00-2647, p. 2 (La. App. 4 Cir. 4/18/01), 785 So.2d 1015, 1016 with a
caveat that its language which seemingly requires service to be effected on a state defendant within 90 days has
never been followed by any other court or panel of this court and the statement, it seems, is unsupported by the
language of the statute.  On the issue of the distinction between “requesting” service and “effecting” service see
Lockett v. Reese, 04-0328 (La. App.4 Cir. 4/28/04), 874 So.2d 913.
7 The correlative statute for TMSEL is La. R.S. 13:5102(B)(2) which provides in pertinent part: “ B. As the term is
used in this Part, ‘political subdivision’ means: . . . (2) Any private entity, such as Transit Management of Southeast
Louisiana, Inc. (TMSEL), including its employees, which on behalf of a public transit authority was created as a
result of Section 13(C) of the Urban Mass Transportation Act, . . .”
8 There is no argument that the prescriptive period in this case was suspended.  Suspension of prescription is
governed by La. C.C. arts. 3467 et seq.  La. C.C. art. 3472 specifically provides that: “The period of suspension is
not counted toward accrual of prescription.  Prescription commences to run again upon the termination of the period
of the period of suspension.”
9 See Thomas v . Louisiana Dept. of Public Safety and Corrections, 02-0897 (La. App. 1 Cir. 3/28/03), 848 So.2d
635, and Borrello v. City of Kenner, 99-420 (La. App. 5 Cir. 11/30/99), 750 So.2d 230.
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served, interrupts prescription, unless the court finds that failure to request service
was due to plaintiff’s bad faith.”   Id. 10
Consequently, Ms. Pate was required to file her second suit not later than
February 18, 2003 and to request service on the RTA within ninety days of filing
of the lawsuit.11  Since she failed to file this second lawsuit by that date, the trial
court’s granting of the exception of prescription is correct.
Ms. Pate’s Claim of Nullity
Ms. Pate seeks to convert her appeal from the judgment granting the
exception of prescription into an action for nullity.  She argues that the RTA
misled the trial court about whether she had in fact timely requested service on the
RTA.12  Essentially, Ms. Pate wishes that we would revisit her first petition to
ascertain whether she in fact timely requested service.  She urges us to apply La.
C.C.P. arts. 2001 et seq. regarding actions for nullity.  This we cannot do.
First, Ms. Pate has not even filed an action for nullity.  The lawsuit sub
judice is an action for damages.  Second, we can discern no basis on which Ms.
Pate was prevented from presenting evidence to the trial court at the time the RTA
first moved for a dismissal on the grounds that she had not timely requested service
on the RTA and, being unsuccessful in the trial court, from timely appealing the
judgment of dismissal without prejudice.  Third, since we have the first petition in
the record before us as an exhibit to the RTA’s exception, we are able to observe
10 The consequences of “bad faith” failure to request timely service, which is governed by La. R.S. 9:5801, are not
pertinent to this case.
11 When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the
claim has not prescribed.  LeBreton v. Rabito, 97-2221 (La. 7/8/98), 714 So.2d 1226, 1228.  Ms. Pate has pointed to
no other basis than her pendency of her first lawsuit to avoid the consequences of the liberative prescription of one
year.  There are, for example, no other non-state defendants alleged by Ms. Pate to be jointly liable with the RTA.
See Cali v. Cory, 04-1227 (La. App. 4 Cir. 11/3/04), 886 So.2d 648; La. C.C. art. 2324(C).
12 In her original brief at p. 2 Ms. Pate writes: “The judgment of the Court rendered on December 26, 2007, was
based solely equally on technicality and misleading information provided to the trial court by the [RTA].”
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that while Ms. Pate may have timely requested service on the RTA, her request
was not proper because she failed to identify any person or entity as the agent for
service of process, and, therefore, she certainly did not request service upon the
proper agent.13  Johnson v. University Medical Center in Lafayette, 07-1683, pp. 2-
3 (La. 11/21/07), 968 So.2d 724, 725.  The Louisiana Supreme Court in Tranchant
v. State, 08-0978, p. 7 (La. 01/21/09), --- So.2d. ---,                                                               2009 WL 130294, very
recently reiterated the Johnson requirement:
Service upon the defendant pursuant to La. R.S.
13:5107(D)(1) requires an accurate request of service upon the
proper agent.   [Johnson citation omitted]  For service to be
requested and effectuated, the clerk must be provided with the
correct name and address of those persons to be served.   In our
view, the plain language of La. R.S. 13:5107(D)(1), without
more, requires that the clerk receive this information before it
can be “requested.”
(emphasis added)
Ms. Pate was too late in requesting service on the RTA in the first suit and
she is too late in seeking a review of the merits of the dismissal occasioned by that
failure.  Her cause of action for inhaling dangerous chemical fumes is prescribed.
The Trial Court’s Judgment
The trial court’s judgment simply granted the exception of prescription.
When the exception of prescription is granted, the action “shall be dismissed.” La.
C.C.P. art. 934.  A lawsuit dismissed because it is prescribed is over and the
dismissal ought to be with prejudice.14  Ubosi v. Sowela Technical Institute, 584
So.2d 340 (La. App. 3rd Cir. 1991).
Decree
13 The request in the first petition was typed and read: “ PLEASE SERVE: Regional Transit Authority, 6700 Plaza
Drive, New Orleans, LA 70127”.  Below that typewritten request is the handwritten request: “Please reissue service
on the defendants.  Pius Obioha 2/28/05”.
14 Of course, there are exceptions, such as when the Supreme Court remanded a matter to allow a client to plead the
unconstitutionality of a peremptive statute. Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291.
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For the foregoing reasons, we amend the judgment to set forth that the
plaintiffs’ lawsuit is prescribed and, accordingly, it is dismissed with prejudice at
their costs.
JUDGMENT AMENDED AND, AS
AMENDED, AFFIRMED.
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