You Snooze, You Lose (Your Case)

A motion for summary judgment is a procedural device a party can use to avoid a full-scale trial when there is no genuine issue of material fact. La. C.C.P. art. 966 is the statute that governs motions for summary judgment in Louisiana. The statute was amended in 2015 to establish some new procedural rules for filing summary judgment motions. Before the statue was amended, the deadline for opposing a motion for summary judgment was set in the District Court Rules, and courts frequently allowed oppositions to motions for summary judgment to be filed after the statutory delay.

In 2015, the Legislature amended the statute to state that “absent the consent of the parties and the court, an opposition shall be filed” within the new fifteen-day deadline established by the article. In Auricchio v. Harriston, the Louisiana Supreme Court ruled the amendments to the statute removed the discretionary language that previously allowed a court to allow a party additional time to oppose a motion for summary judgment. Accordingly, the Court ruled the amendments to art. 966 made the opposition deadline mandatory, and late-filed oppositions should not be considered in connection with a ruling on a motion for summary judgment.

The Louisiana Supreme Court recently revisited this issue in Mahe v. LCMC Health Holdings LLC. The Court considered whether a trial court may grant a continuance of a hearing on a motion for summary judgment when a party fails to file its opposition within the fifteen-day deadline set in La. C.C.P. art. 966(B)(2).

In Mahe, a party requested a continuance of the hearing after the fifteen-day deadline passed. While subsection 966(C)(2) provides that a continuance of the hearing is permitted “for good cause shown,” the Court held that the requested continuance could not serve to circumvent the mandatory deadline for filing an opposition, as described in the Auricchio case. Accordingly, the order granting the continuance was reversed, and the trial court was instructed to rule on the motion for summary judgment without consideration of the untimely filed opposition. In so holding, the Court reinforced the mandatory deadlines set in La. C.C.P. art. 966 and provided additional guidance on the procedural rules for filing and opposing motions for summary judgment.

Until recently, tort claims in Louisiana were subject to a one-year prescriptive period.* In Carollo v. Tulane Univ., the plaintiff’s claim was subject to that one-year prescriptive period, but she filed her suit more than one year after she was injured. Thus, the plaintiff’s claim was dismissed as prescribed. In so holding, the court rejected the plaintiff’s claim that her execution of a waiver form prevented her from timely filing suit for her alleged injuries.

The plaintiff was a member of Tulane’s Swim and Dive Team. As a team member, she signed Tulane’s Concussion Education Form, which concluded with the following statement: “I understand that this release means that, among other things, I am giving up my right to sue the institution for any such losses, damages, injury, or costs that I may incur.” Plaintiff sustained a concussion during practice on January 9, 2021. In her Petition, she alleged she discovered the full extent of her injuries on August 5, 2021. However, she did not file suit until February 17, 2023, which was beyond the one-year prescription period.

When a claim is prescribed on the face of the petition, the burden shifts to the plaintiff to prove her claim is not prescribed. Carollo first argued (1) the Concussion Education Form was a contract, (2) her claim arose from that contract, and (3) personal claims under contracts should be subject to a ten-year prescriptive period under La. C.C. art. 3499. The court rejected this argument because the concussion form did not meet the requirements for a valid contract under Louisiana law.

The plaintiff then argued that the doctrine of contra non valentem should apply. This doctrine provides “prescription does not run against one who is ignorant of the facts upon which their cause of action is based and applies an exception to the statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.”

Contra non valentem can apply when there is some condition coupled with a contract that prevented the plaintiff from filing suit. The court rejected the plaintiff’s arguments asserting this theory. Even if Carollo could establish a contract with Tulane under the concussion form, she could not point to any physical, mental, or procedural condition that prevented her from investigating her tort claims and filing suit against it.

Contra non valentem can also apply when the defendant does some act effectually to prevent the plaintiff from availing herself from her cause of action. The plaintiff argued that she was forced to sign the concussion form as a member of the Swim and Dive Team and that the form prevented her from filing suit within the prescriptive period. The court also rejected this argument, holding the plaintiff “knew about her concussion related injuries but did not perform her due diligence within the prescriptive period to determine whether she could file suit.”

Accordingly, the plaintiff’s execution of a waiver form stating she agreed not to sue the defendant for injuries could not interrupt prescription for the plaintiff’s claim.

*La. C.C. art. 3493.1, which went into effect on July 1, 2024, now provides delictual actions/tort claims are subject to a liberative prescription of two years.

References:

Carollo v. Tulane Univ., 2024-0038 (La. App. 4 Cir. 1/9/25), --- So.3d ---, 2025 WL 52557.

Under La. C.C.P. art. 561, an action is considered “abandoned” when a party to a lawsuit fails to take a step in the prosecution or defense of a civil matter for three years. The Article also provides abandonment occurs without formal order. The Louisiana Legislature recently amended this statute to codify jurisprudence that developed in response to litigation where parties disputed whether a case had been abandoned. These amendments are discussed below.

Abandonment has always been operative without a court order as long as no step in the prosecution or defense of the action interrupted the three-year abandonment period. However, the Article now confirms the defense may renounce abandonment after the expiration of the three-year term. This can occur if the defendant takes some action after expiration of the abandonment period that “clearly or directly” demonstrates his preference and intent to proceed with the litigation.^ 

When a matter has abandoned, a motion to dismiss now must be filed and accompanied by an affidavit.  The affidavit must show the expiration of the three-year period, no step has been taken in the prosecution or defense of the action in the past three years, and the defendant has not renounced the abandonment.  Accompanying the affidavit must be: a list of all pleadings, documents or judgments filed in the record during the three years preceding the date on which the abandonment period tolled, and a list of all written communications pertaining to the action between the mover and the adverse party or their attorney of record in the year preceding the date the abandonment period tolled. 

The court may set a contradictory hearing on the motion to dismiss if the affidavit identifies a filed document or written communication.  After the hearing or after being satisfied that a hearing is not warranted, the court may order the dismissal.  Regardless of whether a hearing is ordered or not, the court is called upon to make an equitable determination of whether the matter is abandoned or not.

If a motion to set aside a dismissal based on abandonment is advanced, then the burden of proof remains on the party claiming abandonment in the initial motion to dismiss to make the showing the case was abandoned. If the dismissal is set aside or reversed on appeal, it constitutes a step in the prosecution or defense of the matter. 

The amendments to Article 561 apply to motions to dismiss based upon abandonment filed on or after August 1, 2026.  Whether these amendments will alleviate litigation of enforcing the abandonment of an action remains to be seen. 

References:

La. Code of Civil Procedure art. 561 

Found. Elevation & Repair, LLC v. Miller,2024-00810 (La. 5/9/25), 408 So. 3d 893