Background:
Plaintiff, Dusty Hutchison, ("Hutchison") appealed a judgment by a trial court dismissing his Jones Act claim against defendant Seariver Maritime ("Seariver") as abandoned.

In February 2001, Hutchison filed a seaman's petition for damages alleging he was injured on April 2, 2000 while employed as a Jones Act seaman aboard a vessel owned and operated by defendant.

Throughout 2001 and 2002, the parties conducted discovery, including depositions. Additionally, various motions related to discovery were filed in the record of these proceedings.

On March 18, 2005, a scheduling order form was filed into the record and provided that the discovery cutoff date would be September 1, 2005, and the pretrial conference would be scheduled for October 14, 2005.

On August 29, 2005 New Orleans was devastated by Hurrican Katrina forcing counsel for both parties to be displaced. The parties filed a joint motion to extend the deadline. No other pleadings or filings had taken place until Seariver filed a motion to dismiss Hutchison's action based on abandonment.

Hutchison opposed the motion arguing that both parties had begun selecting dates to bring the matter to trial and Seariver had offered to file a scheduling order with the court in September, 2007.

The trial court found that there were no steps in the prosecution of the case in excess of three years. Moreover all Hutchison relied upon were certain correspondences between opposing counsel that were not formal discovery. Accordingly the lower court found that those correspondences were not sufficient to interrupt the abandonment period.

Hutchison appealed the lower court's ruling.

Issue:
Did the trial court erred in granting Seariver's motion to dismiss based upon abandonment?

Held:
Hutchison asserted that the trial court erred in granting Seariver's motion to dismiss and that the applicable time period governing abandonment of cases necessarily delayed by Hurricanes Katrina and Rita is five years instead of three years.

This Court found, after reviewing the correspondence between the two parties, that there had been an exception to the abandonment rule applies to this case. By virtue of a letter dated September 6, 2007 by Seariver, which requested dates from Hutchison's attorney so that a scheduling order could be filed with the trial court. Moreover, this Court found the act of requesting a scheduling order is an act inherently inconsistent with intent to treat a case as abandoned.

Secondly, this Court found that the time period had been extended as requested by Hutchison because the Hurricanes were a cause outside the record because the Hurricanes were circumstances causing the delay of prosecution outside Hutchison's control.

Accordingly this Court reversed the trial court's motion to dismiss.

Comment:
Under Louisiana state procedure law, to combat a motion to dismiss abandonment the movant must show a cause outside the record prevents the accrual of the three-year abandonment period. The two categories are (1) that failure to prosecute was caused by circumstances beyond the plaintiff's control and (2) when the defendant waives his right to assert abandonment by taking actions inconsistent with the intent to treat the case as abandoned.

Steve Gordon
http://www.offshoreinjuries.com