ENROLLED
ACT No. 419
2017 Regular Session
HOUSE BILL NO. 439
BY REPRESENTATIVES ZERINGUE AND MAGEE
(On Recommendation of the Louisiana State Law Institute)
1 AN ACT
2 To amend and reenact Code of Civil Procedure Articles 253.3(A)(4), 284, 532(heading),
3 925(A)(3), 928(A), 1002, 1701 through 1704, 1843, 1913(B) and (C), 2002(A)(2),
4 3861, 3864, 3901, 3902, 3955(B), 4904, 4921, 4921.1(C), and 5095, R.S. 13:3205,
5 and R.S. 23:1316 and 1316.1(A) and to enact Code of Civil Procedure Articles
6 74.3.1 and 253(E), relative to civil procedure; to provide for the clarification of
7 terminology; to provide with respect to lis pendens and motions to stay in pending
8 suits; to provide for the timing of the filing of an answer or other pleading; to
9 provide for the submission of a certified copy of a protective order or injunction in
10 support of a preliminary default; to provide for the applicability of mandamus and
11 quo warranto proceedings to limited liability companies; to provide for certain
12 judicial authorization concerning persons seeking to marry; to provide for the
13 acceptance of documents signed by electronic signature; to provide for the
14 redesignation of Code of Civil Procedure Article 1067; to provide for an effective
15 date; and to provide for related matters.
16 Be it enacted by the Legislature of Louisiana:
17 Section 1. Code of Civil Procedure Articles 253.3(A)(4), 284, 532(heading),
18 925(A)(3), 928(A), 1002, 1701 through 1704, 1843, 1913(B) and (C), 2002(A)(2), 3861,
19 3864, 3901, 3902, 3955(B), 4904, 4921, 4921.1(C), and 5095 are hereby amended and
20 reenacted and Code of Civil Procedure Article 74.3.1 is hereby enacted to read as follows:
21 Art. 74.3.1. Marriage of persons; waiver of certain information
22 A. A person applying for a marriage license who is unable to provide a birth
23 certificate, letter required by R.S. 9:227, a valid and unexpired passport, or visa
Page 1 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 accompanied by Form I-94 as issued by the United States may provide a Certificate
2 of Naturalization by the U.S. Citizenship and Immigration Authority. A person
3 applying for a marriage license who is unable to provide a social security number
4 may provide a driver's license, a government issued identification card, a passport,
5 a visa issued by the United States Department of State, or a Certificate of
6 Naturalization issued by the United States Citizenship and Immigration Services. A
7 person applying for a marriage license who is unable to comply with the
8 requirements of this Article may seek judicial authorization for waiver of the
9 requirements of this Article. The court may grant the waiver and order the issuance
10 of the marriage license if, after hearing and good cause shown, the court finds that
11 such relief is appropriate and that the person has complied with other legal
12 requirements for the marriage license. The hearing may be conducted in camera, and
13 before a duty judge. The written order granting the waiver shall be attached to the
14 marriage license application. If the court denies the waiver, the court shall provide
15 reasons for the denial of the waiver.
16 B. The judicial authorization may be granted by the district court, parish
17 court, family court, or juvenile court, in the parish in which the marriage license
18 application is made, or by the First or Second City Court of the City of New Orleans
19 if such application is made within their territorial jurisdiction, or by a justice of the
20 peace court or city court if the issuing official is located within the justice of the
21 peace or city court's territorial jurisdiction.
22 C. The provisions of this Article are in addition to any other right or remedy
23 provided by law, are notwithstanding any other provision of law to the contrary, and
24 shall supersede and control to the extent of conflict with any other provision of law.
25 * * *
26 Art. 253.3. Duty judge exceptions; authority to hear certain matters
27 A. In any case assigned pursuant to Article 253.1, a duty judge shall only
28 hear and sign orders or judgments for the following:
29 * * *
Page 2 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 (4) Uncontested cases in which all parties other than the plaintiff are
2 represented by a curator ad hoc an attorney appointed by the court.
3 * * *
4 Comments - 2017
5 The purpose of the amendment to Subparagraph (A)(4) of this Article was to
6 align the provision with Article 5091 by replacing "a curator ad hoc" with "an
7 attorney appointed by the court."
8 * * *
9 Art. 284. Judicial powers of district court clerk
10 The clerk of a district court may render, confirm, and sign final default
11 judgments by default or judgments by confession in cases where the jurisdiction of
12 the court is concurrent with that of justices of the peace, as provided in Article 5011.
13 Comments - 2017
14 This Article has been amended to substitute "final default judgments" for
15 "judgments by default" to make the article more easily understood and to make the
16 terminology consistent with other related articles. This amendment is intended to be
17 stylistic only.
18 * * *
19 Art. 532. Suits Motions to stay in suits pending in Louisiana and federal or foreign
20 court
21 When a suit is brought in a Louisiana court while another is pending in a
22 court of another state or of the United States on the same transaction or occurrence,
23 between the same parties in the same capacities, on motion of the defendant or on its
24 own motion, the court may stay all proceedings in the second suit until the first has
25 been discontinued or final judgment has been rendered.
26 * * *
27 Art. 925. Objections raised by declinatory exception; waiver
28 A. The objections which may be raised through the declinatory exception
29 include but are not limited to the following:
30 * * *
31 (3) Lis pendens under Article 531.
32 * * *
Page 3 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Comments - 2017
2 Subparagraph (A)(3) of this Article was amended to clarify that, although
3 Article 532 appears in Chapter 3 of Book I of Title II, entitled "Lis Pendens," the
4 declinatory exception of lis pendens may be raised only under Article 531. Article
5 532 permits the court to stay the proceedings of a second suit pending resolution of
6 the first suit but does not permit the court to dismiss the second suit by granting an
7 exception of lis pendens.
8 * * *
9 Art. 928. Time of pleading exceptions
10 A. The declinatory exception and the dilatory exception shall be pleaded
11 prior to or in the answer and, prior to or along with the filing of any pleading seeking
12 relief other than entry or removal of the name of an attorney as counsel of record,
13 extension of time within which to plead, security for costs, or dissolution of an
14 attachment issued on the ground of the nonresidence of the defendant, and in any
15 event, prior to the confirmation signing of a final default judgment. When both
16 exceptions are pleaded, they shall be filed at the same time, and may be incorporated
17 in the same pleading. When filed at the same time or in the same pleading, these
18 exceptions need not be pleaded in the alternative or in a particular order.
19 * * *
20 Comments - 2017
21 Paragraph A of this Article has been amended to substitute "signing of a final
22 default judgment" for "confirmation of a default judgment" to make the article more
23 easily understood and to make the terminology consistent with other related articles.
24 Pursuant to Article 1002, the defendant may file an answer or other pleading at any
25 time prior to the actual signing of the final default judgment. See Martin v. Martin,
26 680 So. 2d 759 (La. App. 1st Cir. 1996).
27 * * *
28 Art. 1002. Answer or other pleading filed prior to confirmation signing of final
29 default judgment
30 Notwithstanding the provisions of Article 1001, the defendant may file his
31 answer or other pleading at any time prior to confirmation the signing of a final
32 default judgment against him.
Page 4 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Comments - 2017
2 This Article has been amended to clarify that the defendant may file an
3 answer or other pleading at any time prior to the actual signing of the final default
4 judgment. See Martin v. Martin, 680 So. 2d 759 (La. App. 1st Cir. 1996).
5 * * *
6 Art. 1701. Judgment by Preliminary default
7 A. If a defendant in the principal or incidental demand fails to answer or file
8 other pleadings within the time prescribed by law or by the court, judgment by
9 default a preliminary default may be entered against him. The judgment preliminary
10 default may be obtained by oral motion in open court or by written motion mailed
11 to the court, either of which shall be entered in the minutes of the court, but the
12 judgment preliminary default shall consist merely of an entry in the minutes.
13 B. When a defendant in an action for divorce under Civil Code Article
14 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition
15 and waives formal citation, service of process, all legal delays, notice of trial, and
16 appearance at trial, a judgment of preliminary default may be entered against the
17 defendant the day on which the affidavit is filed. The affidavit of the defendant may
18 be prepared or notarized by any notary public. The judgment preliminary default
19 may be obtained by oral motion in open court or by written motion mailed to the
20 court, either of which shall be entered in the minutes of the court, but the judgment
21 preliminary default shall consist merely of an entry in the minutes. Notice of the
22 signing entry of the final judgment as provided in Article 1913 preliminary default
23 is not required.
24 Comments - 2017
25 (a) This Article has been amended to substitute "preliminary default" for
26 "judgment of default" and "judgment by default" to make the article more easily
27 understood and to make the terminology consistent within the article and with other
28 related articles. A preliminary default is not a judgment. A final judgment
29 confirming a preliminary default is now referred to as a "final default judgment."
30 These amendments are intended to be stylistic only.
31 (b) The first sentence of Paragraph A of this Article has also been amended
32 to provide that a preliminary default can be entered if the defendant "fails to answer
33 or file other pleadings within the time prescribed by law or by the court."
Page 5 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Art. 1702. Confirmation of preliminary default judgment
2 A. A judgment of preliminary default must be confirmed by proof of the
3 demand that is sufficient to establish a prima facie case and that is admitted on the
4 record prior to confirmation the entry of a final default judgment. The court may
5 permit documentary evidence to be filed in the record in any electronically stored
6 format authorized by the local rules of the district court or approved by the clerk of
7 the district court for receipt of evidence. If no answer or other pleading is filed
8 timely, this confirmation may be made after two days, exclusive of holidays, from
9 the entry of the judgment of preliminary default. When a judgment of preliminary
10 default has been entered against a party that is in default after having made an
11 appearance of record in the case, notice of the date of the entry of the judgment of
12 preliminary default must be sent by certified mail by the party obtaining the
13 judgment of preliminary default to counsel of record for the party in default, or if
14 there is no counsel of record, to the party in default, at least seven days, exclusive of
15 holidays, before confirmation of the judgment of preliminary default.
16 B.(1) When a demand is based upon a conventional obligation, affidavits and
17 exhibits annexed thereto which contain facts sufficient to establish a prima facie case
18 shall be admissible, self-authenticating, and sufficient proof of such demand. The
19 court may, under the circumstances of the case, require additional evidence in the
20 form of oral testimony before entering a final default judgment.
21 (2) When a demand is based upon a delictual obligation, the testimony of the
22 plaintiff with corroborating evidence, which may be by affidavits and exhibits
23 annexed thereto which contain facts sufficient to establish a prima facie case, shall
24 be admissible, self-authenticating, and sufficient proof of such demand. The court
25 may, under the circumstances of the case, require additional evidence in the form of
26 oral testimony before entering a final default judgment.
27 (3) When the sum due is on an open account or a promissory note or other
28 negotiable instrument, an affidavit of the correctness thereof shall be prima facie
29 proof. When the demand is based upon a promissory note or other negotiable
30 instrument, no proof of any signature thereon shall be required.
Page 6 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 C. In those proceedings in which the sum due is on an open account or a
2 promissory note, other negotiable instrument, or other conventional obligation, or a
3 deficiency judgment derived therefrom, including those proceedings in which one
4 or more mortgages, pledges, or other security for the open account, promissory note,
5 negotiable instrument, conventional obligation, or deficiency judgment derived
6 therefrom is sought to be enforced, maintained, or recognized, or in which the
7 amount sought is that authorized by R.S. 9:2782 for a check dishonored for
8 nonsufficient funds, a hearing in open court shall not be required unless the judge,
9 in his discretion, directs that such a hearing be held. The plaintiff shall submit to the
10 court the proof required by law and the original and not less than one copy of the
11 proposed final default judgment. The judge shall, within seventy-two hours of
12 receipt of such submission from the clerk of court, sign the proposed final default
13 judgment or direct that a hearing be held. The clerk of court shall certify that no
14 answer or other pleading has been filed by the defendant. The minute clerk shall
15 make an entry showing the dates of receipt of proof, review of the record, and
16 rendition of the final default judgment. A certified copy of the signed final default
17 judgment shall be sent to the plaintiff by the clerk of court, and notice of the signing
18 of the final default judgment shall be given as provided in Article 1913.
19 D. When the demand is based upon a claim for a personal injury, a sworn
20 narrative report of the treating physician or dentist may be offered in lieu of his
21 testimony.
22 E. Notwithstanding any other provisions of law to the contrary, when the
23 demand is for divorce under Civil Code Article 103(1) or (5), whether or not the
24 demand contains a claim for relief incidental or ancillary thereto, a hearing in open
25 court shall not be required unless the judge, in his discretion, directs that a hearing
26 be held. The plaintiff shall submit to the court an affidavit specifically attesting to
27 and testifying as to the truth of all of the factual allegations contained in the petition,
28 the original and not less than one copy of the proposed final judgment, and a
29 certification which shall indicate the type of service made on the defendant, the date
30 of service, the date a preliminary default was entered, and a certification by the clerk
Page 7 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 that the record was examined by the clerk, including the date of the examination, and
2 a statement that no answer or other opposition pleading has been filed. If the
3 demand is for divorce under Civil Code Article 103(5), a certified copy of the
4 protective order or injunction rendered after a contradictory hearing or consent
5 decree shall also be submitted to the court. If no answer or other pleading has been
6 filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry
7 of a preliminary default, review the affidavit, proposed final default judgment, and
8 certification, render and sign the proposed final default judgment, or direct that a
9 hearing be held. The minutes shall reflect rendition and signing of the final default
10 judgment.
11 Comments - 2017
12 (a) This Article has been amended to substitute "preliminary default" for
13 "judgment of default" and "judgment by default" to make the article more easily
14 understood and to make the terminology consistent within the Article and with other
15 related Articles. A final judgment confirming a preliminary default is now referred
16 to as a "final default judgment." These amendments are intended to be stylistic only.
17 (b) Paragraph E of this Article has been amended to provide that, when a
18 demand for divorce is made under Civil Code Article 103(5), a certified copy of the
19 protective order or injunction rendered after a contradictory hearing or consent
20 decree as required by that Article shall be submitted to the court in addition to the
21 affidavit of the plaintiff.
22 Art. 1702.1. Confirmation of preliminary default judgment without hearing in open
23 court; required information; certifications
24 A. When the plaintiff seeks to confirm a preliminary default judgment
25 without appearing for a hearing in open court as provided in Article 1702(B)(1) and
26 (C), along with any proof required by law, he or his attorney shall include in an
27 itemized form with the a written motion for confirmation of preliminary default and
28 proposed final default judgment a certification that the suit is on an open account,
29 promissory note, or other negotiable instrument, on a conventional obligation, or on
30 a check dishonored for nonsufficient funds, and that the necessary invoices and
31 affidavit, note and affidavit, or check or certified reproduction thereof are attached.
32 If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that
33 fact and that a copy of the demand letter and if required, the return receipt showing
34 the date received by the debtor are attached and the fact that the number of days
Page 8 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was
2 filed since demand was made upon the defendant.
3 B. The certification shall indicate the type of service made on the defendant,
4 the date of service, and the date a preliminary default was entered, and shall also
5 include a certification by the clerk that the record was examined by the clerk,
6 including therein the date of the examination and a statement that no answer or other
7 opposition pleading has been filed within the time prescribed by law or by the court.
8 Comments - 2017
9 (a) This Article has been amended to substitute "preliminary default" for
10 "default judgment" to make the Article more easily understood and to make the
11 terminology consistent within the Article and with other related Articles. A final
12 judgment confirming a preliminary default is now referred to as a "final default
13 judgment." These amendments are intended to be stylistic only.
14 (b) Paragraph A of this Article has been amended to clarify that a written
15 motion for confirmation of preliminary default is required only if the plaintiff is
16 seeking the confirmation without hearing in open court as provided in Article
17 1702(B)(1) and (C).
18 (c) The filing of the suit constitutes a demand made upon the defendant for
19 the purposes of Paragraph A of this Article.
20 Art. 1703. Scope of judgment
21 A judgment by default final default judgment shall not be different in kind
22 from that demanded in the petition. The amount of damages awarded shall be the
23 amount proven to be properly due as a remedy.
24 Comments - 2017
25 This Article has been amended to substitute "final default judgment" for
26 "judgment by default" to make the Article more easily understood and to make the
27 terminology consistent with other related Articles. A "judgment of default" or
28 "judgment by default" is now referred to as a "preliminary default." This amendment
29 is intended to be stylistic only.
30 Art. 1704. Confirmation of judgment by preliminary default in suits against the state
31 or a political subdivision
32 A. Notwithstanding any other provision of law to the contrary, prior to
33 confirmation of a judgment of preliminary default against the state or any of its
34 departments, offices, boards, commissions, agencies, or instrumentalities, a certified
35 copy of the minute entry constituting the judgment preliminary default entered
36 pursuant to Article 1701, together with a certified copy of the petition or other
Page 9 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 demand, shall be sent by the plaintiff or his counsel to the attorney general by
2 registered or certified mail, or shall be served by the sheriff personally upon the
3 attorney general or the first assistant attorney general at the office of the attorney
4 general. If the minute entry and the petition are served on the attorney general by
5 mail, the person mailing such items shall execute and file in the record an affidavit
6 stating that these items have been enclosed in an envelope properly addressed to the
7 attorney general with sufficient postage affixed, and stating the date on which such
8 envelope was deposited in the United States mails mail. In addition the return
9 receipt shall be attached to the affidavit which was filed in the record.
10 B. If no answer or other pleading is filed during the fifteen days immediately
11 following the date on which the attorney general or the first assistant attorney general
12 received notice of the preliminary default as provided in Subsection A of this Section
13 Paragraph A of this Article, a judgment by preliminary default entered against the
14 state or any of its departments, offices, boards, commissions, agencies, or
15 instrumentalities may be confirmed by proof as required by Article 1702.
16 C. Notwithstanding any other provision of law to the contrary, prior to
17 confirmation of a judgment of preliminary default against a political subdivision of
18 the state or any of its departments, offices, boards, commissions, agencies, or
19 instrumentalities, a certified copy of the minute entry constituting the judgment
20 preliminary default entered pursuant to Article 1701, together with a certified copy
21 of the petition or other demand, shall be sent by the plaintiff or his counsel by
22 registered or certified mail to the proper agent or person for service of process at the
23 office of that agent or person. The person mailing such items shall execute and file
24 in the record an affidavit stating that these items have been enclosed in an envelope
25 properly addressed to the proper agent or person for service of process, with
26 sufficient postage affixed, and stating the date on which such envelope was deposited
27 in the United States mails mail. In addition the return receipt shall be attached to the
28 affidavit which was filed in the record.
29 D. If no answer or other pleading is filed during the fifteen days immediately
30 following the date on which the agent or person for service of process received
Page 10 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 notice of the preliminary default as provided in Paragraph C of this Article, a
2 judgment by preliminary default entered against the political subdivision of the state
3 or any of its departments, offices, boards, commissions, agencies, or
4 instrumentalities may be confirmed by proof as required by Article 1702.
5 Comments - 2017
6 This Article has been amended to substitute "preliminary default" for
7 "judgment of default" and "judgment by default" to make the Article more easily
8 understood and to make the terminology consistent within the Article and with other
9 related Articles. A final judgment confirming a preliminary default is now referred
10 to as a "final default judgment." These amendments are intended to be stylistic only.
11 * * *
12 Art. 1843. Judgment by Final default judgment
13 A final default judgment by default is that which is rendered against a
14 defendant who fails to plead within the time prescribed by law.
15 Comments - 2017
16 This Article has been amended to substitute "final default judgment" for
17 "judgment by default" to make the Article more easily understood and to make the
18 terminology consistent with other related Articles. A final default judgment is
19 different from a preliminary default, which is nothing more than an entry in the
20 minutes prior to the rendition of a final default judgment and is not itself a judgment.
21 * * *
22 Art. 1913. Notice of judgment
23 * * *
24 B. Notice of the signing of a final default judgment against a defendant on
25 whom citation was not served personally, or on whom citation was served through
26 the secretary of state, and who filed no exceptions or answer, shall be served on the
27 defendant by the sheriff, by either personal or domiciliary service, or in the case of
28 a defendant originally served through the secretary of state, by service on the
29 secretary of state.
30 C. Notice of the signing of a final default judgment against a defendant on
31 whom citation was served personally, and who filed no exceptions or answer, shall
32 be mailed by the clerk of court to the defendant at the address where personal service
33 was obtained or to the last known address of the defendant.
34 * * *
Page 11 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Comments - 2017
2 This Article has been amended to substitute "final default judgment" for
3 "default judgment" to make the Article more easily understood and to make the
4 terminology consistent with other related Articles. A "judgment of default" or
5 "judgment by default" is now referred to as a "preliminary default." These
6 amendments are intended to be stylistic only.
7 * * *
8 Art. 2002. Annulment for vices of form; time for action
9 A. A final judgment shall be annulled if it is rendered:
10 * * *
11 (2) Against a defendant who has not been served with process as required by
12 law and who has not waived objection to jurisdiction, or against whom a valid final
13 default judgment by default has not been taken.
14 * * *
15 Comments - 2017
16 Subparagraph (A)(2) of this Article has been amended to substitute "final
17 default judgment" for "judgment by default" to make the Article more easily
18 understood and to make the terminology consistent with other related Articles. This
19 amendment is intended to be stylistic only.
20 * * *
21 Art. 3861. Definition
22 Mandamus is a writ directing a public officer, or a corporation or an officer
23 thereof, or a limited liability company or a member or manager thereof, to perform
24 any of the duties set forth in Articles 3863 and 3864.
25 * * *
26 Art. 3864. Mandamus against corporation or corporate officer; limited liability
27 company or member or manager
28 A. A writ of mandamus may be directed to a corporation or an officer thereof
29 to compel either of the following:
30 (1) The holding of an election or the performance of other duties required by
31 the corporate charter corporation's articles of incorporation or bylaws, or as
32 prescribed by law; or.
Page 12 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 (2) The recognition of the rights of it's the corporation's members or
2 shareholders.
3 B. A writ of mandamus may be directed to a limited liability company or a
4 member or manager thereof to compel either of the following:
5 (1) The holding of an election or the performance of other duties required by
6 the limited liability company's articles of organization or operating agreement, or as
7 prescribed by law.
8 (2) The recognition of the rights of the limited liability company's members.
9 * * *
10 Art. 3901. Definition
11 Quo warranto is a writ directing an individual to show by what authority he
12 claims or holds public office, or office in a corporation or limited liability company,
13 or directing a corporation or limited liability company to show by what authority it
14 exercises certain powers. Its purpose is to prevent usurpation of office or of powers.
15 Art. 3902. Judgment
16 When the court finds that a person is holding or claiming office without
17 authority, the judgment shall forbid him to do so. It may declare who is entitled to
18 the office and may direct an election when necessary.
19 When the court finds that a corporation or limited liability company is
20 exceeding its powers, the judgment shall prohibit it from doing so.
21 * * *
22 Art. 3955. Service of petition
23 * * *
24 B. If the defendant is an absentee, the request for appointment of a curator
25 ad hoc an attorney to represent the absentee defendant within ninety days of
26 commencement of the action constitutes compliance with the requirements of
27 Paragraph A of this Article.
28 * * *
Page 13 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Comments - 2017
2 The purpose of the amendment to Paragraph B of this Article is to align the
3 provision with Article 5091 by replacing "curator ad hoc" with "attorney to represent
4 the absentee defendant."
5 * * *
6 Art. 4904. Judgment by Final default judgment in parish and city courts
7 A. In suits in a parish court or a city court, if the defendant fails to answer
8 timely, or if he fails to appear at the trial, and the plaintiff proves his case, a final
9 default judgment in favor of plaintiff may be rendered. No prior preliminary default
10 is necessary.
11 B. The plaintiff may obtain a final default judgment only by producing
12 relevant and competent evidence which establishes a prima facie case. When the suit
13 is for a sum due on an open account, promissory note, negotiable instrument, or other
14 conventional obligation, prima facie proof may be submitted by affidavit. When the
15 demand is based upon a promissory note or other negotiable instrument, no proof of
16 any signature thereon shall be required.
17 C. When the sum due is on an open account, promissory note, negotiable
18 instrument, or other conventional obligation, a hearing in open court shall not be
19 required unless the judge in his discretion directs that such a hearing be held. The
20 plaintiff shall submit to the court the proof required by law and the original and not
21 less than one copy of the proposed final default judgment. The judge shall, within
22 seventy-two hours of receipt of such submission from the clerk of court, sign the
23 proposed final default judgment or direct that a hearing be held. The clerk of court
24 shall certify that no answer or other pleading has been filed by the defendant. The
25 minute clerk shall make an entry showing the dates of receipt of proof, review of the
26 record, and rendition of the final default judgment. A certified copy of the signed
27 final default judgment shall be sent to the plaintiff by the clerk of court.
Page 14 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Comments - 2017
2 This Article has been amended to substitute "preliminary default" for "prior
3 default" and "final default judgment" for "final judgment" and "judgment by default"
4 to make the Article more easily understood and to make the terminology consistent
5 with other related Articles. These amendments are intended to be stylistic only.
6 * * *
7 Art. 4921. Judgment by Final default judgment; justice of the peace courts; district
8 courts with concurrent jurisdiction
9 A. If the defendant fails to answer timely, or if he fails to appear at the trial,
10 and the plaintiff proves his case, a final default judgment in favor of plaintiff may
11 be rendered. No prior preliminary default is necessary.
12 B. The plaintiff may obtain a final default judgment only by producing
13 relevant and competent evidence which establishes a prima facie case. When the suit
14 is for a sum due on an open account, promissory note, negotiable instrument, or other
15 conventional obligation, prima facie proof may be submitted by affidavit. When the
16 demand is based upon a promissory note or other negotiable instrument, no proof of
17 any signature thereon shall be required.
18 Comments - 2017
19 This Article has been amended to substitute "preliminary default" for "prior
20 default" and "final default judgment" for "final judgment" and "judgment by default"
21 to make the Article more easily understood and to make the terminology consistent
22 with other related Articles. These amendments are intended to be stylistic only.
23 Art. 4921.1. Demand for trial; abandonment; applicability
24 * * *
25 C.(1) Notwithstanding the provisions of Paragraph A of this Article, the
26 justice of the peace or clerk may set the matter for trial upon filing of a petition. The
27 date, time, and location of the trial shall be contained in the citation. The first
28 scheduled trial date shall be not more than forty-five days, nor less than ten days,
29 from the service of the citation. If the defendant appears, he need not file an answer
30 unless ordered to do so by the court. If a defendant who has been served with
31 citation fails to appear at the time and place specified in the citation, the judge may
32 enter a final default judgment for the plaintiff in the amount proved to be due. If the
Page 15 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 plaintiff does not appear, the judge may enter an order dismissing the action without
2 prejudice.
3 (2) If a matter has been set for trial pursuant to Paragraph Subparagraph (1)
4 of this Article Paragraph, no final default judgement judgment shall be rendered
5 prior to the trial date.
6 Comments - 2017
7 Paragraph C of this Article has been amended to substitute "final default
8 judgment" for "default judgment" to make the Article more easily understood and
9 to make the terminology consistent with other related Articles. These amendments
10 are intended to be stylistic only.
11 * * *
12 Art. 5095. Same; defense of action
13 The attorney at law appointed by the court to represent a defendant shall use
14 reasonable diligence to inquire of the defendant, and to determine from other
15 available sources, what defense, if any, the defendant may have, and what evidence
16 is available in support thereof.
17 Except in an executory proceeding, the attorney may except to the petition,
18 shall file an answer or other pleading in time to prevent a final default judgment from
19 being rendered, may plead therein any affirmative defense available, may prosecute
20 an appeal from an adverse judgment, and generally has the same duty, responsibility,
21 and authority in defending the action or proceeding as if he had been retained as
22 counsel for the defendant.
23 Comments - 2017
24 This Article has been amended to substitute "final default judgment" for
25 "default judgment" to make the Article more easily understood and to make the
26 terminology consistent with other related Articles. This amendment is intended to
27 be stylistic only.
28 Section 2. R.S. 13:3205 is hereby amended and reenacted to read as follows:
29 §3205. Default judgment; hearings; proof of service of process
30 No preliminary default or final default judgment can may be rendered against
31 the defendant and no hearing may be held on a contradictory motion, rule to show
32 cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et
Page 16 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 seq., until thirty days after the filing in the record of the affidavit of the individual
2 who either has done any of the following:
3 (1) Mailed the process to the defendant, showing that it was enclosed in an
4 envelope properly addressed to the defendant, with sufficient postage affixed, and
5 the date it was deposited in the United States mail, to which shall be attached the
6 return receipt of the defendant; or.
7 (2) Utilized the services of a commercial courier to make delivery of the
8 process to the defendant, showing the name of the commercial courier, the date, and
9 address at which the process was delivered to the defendant, to which shall be
10 attached the commercial courier's confirmation of delivery; or.
11 (3) Actually delivered the process to the defendant, showing the date, place,
12 and manner of delivery.
13 Comments - 2017
14 This Section has been amended to substitute "preliminary default or final
15 default judgment" for "default judgment" to make the provision more easily
16 understood and to make the terminology consistent with related Articles in the Code
17 of Civil Procedure. These amendments are intended to be stylistic only.
18 Section 3. R.S. 23:1316 and 1316.1(A) are hereby amended and reenacted to read
19 as follows:
20 §1316. Answer or other pleading, failure to file; judgment by preliminary default
21 If a defendant in the principal or incidental demand fails to answer or file
22 other pleadings within the time prescribed by law or the time extended by the
23 workers' compensation judge, and upon proof of proper service having been made,
24 judgment by preliminary default may be entered against him. The judgment
25 preliminary default shall be obtained by written motion.
26 Comments - 2017
27 This Section has been amended to substitute "preliminary default" for
28 "judgment by default" to make the provision more easily understood and to make the
29 terminology consistent with related Articles in the Code of Civil Procedure. A final
30 judgment confirming a preliminary default is now referred to as a "final default
31 judgment." These amendments are intended to be stylistic only.
Page 17 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 §1316.1. Confirmation of judgment by preliminary default
2 A. A judgment by preliminary default on behalf of any party at interest must
3 be confirmed by proof of the demand sufficient to establish a prima facie case. If no
4 answer or other pleading is filed timely, this confirmation may be made after two
5 days, exclusive of holidays, from the entry of the judgment of preliminary default.
6 * * *
7 Comments - 2017
8 Paragraph A of this Section has been amended to substitute "preliminary
9 default" for "judgment by default" and "judgment of default" to make the provision
10 more easily understood and to make the terminology consistent with related Articles
11 in the Code of Civil Procedure. A final judgment confirming a preliminary default
12 is now referred to as a "final default judgment." These amendments are intended to
13 be stylistic only.
14 Section 4. Code of Civil Procedure Article 253(E) is hereby enacted to read as
15 follows:
16 Art. 253. Pleadings, documents, and exhibits to be filed with clerk
17 * * *
18 E. The clerk shall not refuse to accept for filing any pleading or other
19 document signed by electronic signature, as defined by R.S. 9:2602, and executed
20 in connection with court proceedings, solely on the ground that it was signed by
21 electronic signature.
22 Comments - 2018
23 Paragraph E is new; however, nothing in this provision is intended to
24 abrogate any specific legislation requiring that certain documents be signed by other
25 than electronic means.
26 Section 5. The Louisiana State Law Institute is hereby directed to redesignate Code
27 of Civil Procedure Article 1067 as Article 1041.
Page 18 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HB NO. 439 ENROLLED
1 Section 6. The provisions of Section 4 of this Act shall become effective on January
1, 2018.
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
Page 19 of 19
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.