HLS 18RS-674 ORIGINAL
2018 Regular Session
HOUSE BILL NO. 174
BY REPRESENTATIVE GAROFALO
(On Recommendation of the Louisiana State Law Institute)
CIVIL/PROCEDURE: Provides for the continuous revision of the Code of Civil Procedure
1 AN ACT
2To amend and reenact Code of Civil Procedure Articles 194(6), 592(A)(3)(e), 853, 855,
3 1471(A)(introductory paragraph) and (3), 1913(B) and (C), and 3952, and to provide
4 a Comment to Code of Civil Procedure Article 966, relative to civil procedure; to
5 provide for the signing of orders and judgments by the district judge in chambers;
6 to provide for certification of class actions after judgments on the merits of common
7 issues; to provide with respect to exhibits to pleadings; to provide exceptions to the
8 general rules on pleading capacity; to provide sanctions for failing to comply with
9 discovery orders; to provide for service of notice of the signing of final default
10 judgments; to provide for the clarification of terminology; and to provide for related
11 matters.
12Be it enacted by the Legislature of Louisiana:
13 Section 1. Code of Civil Procedure Articles 194(6), 592(A)(3)(e), 853, 855,
141471(A)(introductory paragraph) and (3), 1913(B) and (C), and 3952 are hereby amended
15and reenacted and a Comment to Code of Civil Procedure Article 966 is hereby provided to
16read as follows:
17 Art. 194. Power of district court to act in chambers; signing orders and judgments
18 The following orders and judgments may be signed by the district judge in
19 chambers:
20 * * *
Page 1 of 6
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HLS 18RS-674 ORIGINAL
HB NO. 174
1 (6) Order or judgment which that may be granted on ex parte motion or
2 application, except an order of appeal on an oral motion and a judgment granting or
3 confirming a default; and
4 * * *
5 Comments - 2018
6 Subparagraph (6) of this Article has been amended to remove the exception
7 requiring a judgment granting or confirming a default to be signed in open court.
8 Rather, a district judge is permitted to sign in chambers a final default judgment
9 confirming a preliminary default pursuant to Subparagraph (7) of this Article.
10 * * *
11 Art. 592. Certification procedure; notice; judgment; orders
12 A.
13 * * *
14 (3)
15 * * *
16 (e) No order contemplated in this Subparagraph shall be rendered after a
17 judgment or partial judgment on the merits of all common issues has been rendered
18 against the party opposing supporting the class and over such party's objection.
19 * * *
20 Comments - 2018
21 Subsubparagraph (A)(3)(e) of this Article has been amended to provide that
22 when a judgment or partial judgment on the merits of all common issues has been
23 rendered against the party supporting the certification of a class, the class action shall
24 not be certified. The phrase "and over such party's objection" has been deleted as
25 unnecessary in light of this amendment. These amendments are intended to
26 recognize a series of jurisprudential decisions permitting motions for summary
27 judgment that are dispositive of common and determinative issues to be resolved
28 prior to certification of the class action. See, e.g., Cooper v. CVS Caremark
29 Corporation, 176 So. 3d 422 (La. App. 1 Cir. 2015); Smith v. City of New Orleans,
30 131 So. 3d 511 (La. App. 4 Cir. 2013); Clark v. Shackelford Farms Partnership, 880
31 So. 2d 225 (La. App. 2 Cir. 2004); see also Wade v. Kirkland, 118 F. 3d 667 (9 Cir.
32 1997).
33 * * *
34 Art. 853. Caption of pleadings; adoption by reference; exhibits
35 Every pleading shall contain a caption setting forth the name of the court, the
36 title and number of the action, and a designation of the pleading. The title of the
Page 2 of 6
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HLS 18RS-674 ORIGINAL
HB NO. 174
1 action shall state the name of the first party on each side with an appropriate
2 indication of other parties.
3 A statement in a pleading may be adopted by reference in a different part of
4 the same pleading or in another pleading in the same court. A copy of any written
5 instrument which that is an exhibit to a pleading is a part thereof for all purposes.
6 Comments - 2018
7 The amendment to this Article eliminates the phrase "for all purposes" to
8 resolve a conflict that previously existed between this provision and Article
9 966(A)(4), which provides the exclusive list of documents that may be filed in
10 support of or in opposition to a motion for summary judgment. Under Article
11 966(A)(4), a copy of a written instrument that is an exhibit to a pleading may not be
12 filed in connection with a motion for summary judgment unless the written
13 instrument itself is properly authenticated. See Article 966, Comment (c) (2015); see
14 also Raborn v. Albea, 221 So. 3d 104, 111 (La. App. 1 Cir. 2017).
15 * * *
16 Art. 855. Pleading special matters; capacity
17 It Except as otherwise provided by law, it is not necessary to allege the
18 capacity of a party to sue or be sued or the authority of a party to sue or be sued in
19 a representative capacity or the legal existence of a legal entity or an organized
20 association of persons made a party. Such procedural capacity shall be presumed,
21 unless challenged by the dilatory exception.
22 Comments - 2018
23 This Article has been amended to recognize and address exceptions to the
24 general rule that it is not necessary to allege the capacity or authority of a party to
25 sue and be sued. One such exception can be found in Article 4061.1, which requires
26 the natural tutor who files certain actions for damages on behalf of a minor child to
27 allege in the petition that he qualifies to act of right as tutor. See Article 4061.1(B).
28 * * *
29 Art. 966. Motion for summary judgment; procedure
30 * * *
31 Comments - 2018
32 Under Subparagraph (A)(4) of this Article, which provides the exclusive list
33 of documents that may be filed in support of or in opposition to a motion for
34 summary judgment, a copy of a written instrument that is an exhibit to a pleading
35 may not be filed in connection with a motion for summary judgment unless the
36 written instrument itself is properly authenticated. See Comment (c) (2015); see also
37 Raborn v. Albea, 221 So. 3d 104, 111 (La. App. 1 Cir. 2017).
38 * * *
Page 3 of 6
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HLS 18RS-674 ORIGINAL
HB NO. 174
1 Art. 1471. Failure to comply with order compelling discovery; sanctions
2 A. If a party or an officer, director, or managing agent of a party or a person
3 designated under Article 1442 or 1448 to testify on behalf of a party fails to obey an
4 order to provide or permit discovery, including an order made under Article 1464 or
5 Article 1469, the court in which the action is pending may make such orders in
6 regard to the failure as are just, and among others including any of the following:
7 * * *
8 (3) An order striking out pleadings or parts thereof, or staying further
9 proceedings until the order is obeyed, or dismissing the action or proceeding or any
10 part thereof, or rendering a final default judgment by default against the disobedient
11 party upon presentation of proof as required by Article 1702.
12 * * *
13 Comments - 2018
14 Subparagraph (A)(3) of this Article has been amended to substitute "final
15 default judgment" for "judgment by default" to make the article more easily
16 understood and to make the terminology consistent with other related articles.
17 Before a final default judgment can be rendered against the defendant in accordance
18 with this provision, the plaintiff must prove a prima facie case in accordance with the
19 requirements of Article 1702. See Clark v. Clark, 358 So. 2d 658 (La. App. 1 Cir.
20 1978).
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 exception, answer, or other
27 pleading, shall be served on the defendant by the sheriff, by either personal or
28 domiciliary service, or in the case of a defendant originally served through the
29 secretary of state, by service on the secretary of state.
30 C. Notice Except when service is required under Paragraph B of this Article,
31 notice of the signing of a final default judgment against a defendant on whom
32 citation was served personally, and who filed no exceptions or answer, shall be
Page 4 of 6
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HLS 18RS-674 ORIGINAL
HB NO. 174
1 mailed by the clerk of court to the defendant at the address where personal service
2 was obtained or to the last known address of the defendant.
3 * * *
4 Comments - 2018
5 (a) Paragraph B has been amended to add "or other pleading" to clarify that
6 the requirement of service of the notice of the signing of a default judgment by the
7 sheriff applies only if the defendant was not served personally, or was served through
8 the secretary of state, and has filed no exception, answer, or other pleading.
9 (b) Paragraph C has been amended to clarify that in all other cases, notice
10 of the signing of a final default judgment shall be mailed to the defendant by the
11 clerk of court.
12 (c) When a final default judgment is rendered as a discovery sanction under
13 Article 1471(A)(3), the judgment is rendered in a contested case. As a result, the
14 provisions of Paragraph A of this Article will apply, and notice of the signing of a
15 final default judgment rendered pursuant to Article 1471(A)(3) must be mailed by
16 the clerk of court to each party or his counsel.
17 * * *
18 Art. 3952. Rule to show cause and affidavit
19 The rule to show cause provided in Civil Code Article 102 shall allege proper
20 service of the initial petition for divorce, that the requisite period of time, in
21 accordance with Article 103.1, or more has elapsed since that service, and that the
22 spouses have lived separate and apart continuously for the requisite period of time,
23 in accordance with Article 103.1. The rule to show cause shall be verified by the
24 affidavit of the mover and shall be served on the defendant, the defendant's attorney
25 of record, or the duly appointed curator attorney for the defendant prior to the
26 granting of the divorce, unless service is waived by the defendant.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 174 Original 2018 Regular Session Garofalo
Abstract: Provides continuous revisions to the Code of Civil Procedure.
Present law (C.C.P. Art. 194(6)) provides the orders and judgments that may be signed by
the district judge in chambers but excludes judgments granting or confirming a default.
Page 5 of 6
CODING: Words in struck through type are deletions from existing law; words underscored
are additions. HLS 18RS-674 ORIGINAL
HB NO. 174
Proposed law removes the exception under present law and permits final default judgments
granting or confirming preliminary defaults to be signed by the district judge in chambers.
Present law (C.C.P. Art. 592(A)(3)(e)) prohibits the certification of a class action if a
judgment on the merits of common issues has been rendered against the party opposing the
class.
Proposed law amends present law to allow the certification of a class action unless a
judgment on the merits of all common issues has been rendered against the party supporting
the class.
Present law (C.C.P. Art. 853) provides that an exhibit to a pleading is a part of that pleading
for all purposes.
Proposed law deletes the phrase "for all purposes" from present law to resolve an
inconsistency with Article 966(A)(4), which prohibits the filing of exhibits to pleadings in
connection with motions for summary judgment unless the exhibits themselves are properly
authenticated.
Present law (C.C.P. Art. 855) provides as a general rule that it is not necessary to allege the
capacity or authority of a party to sue and be sued.
Proposed law recognizes and addresses exceptions to this general rule, such as Article
4061.1, which requires a natural tutor in some circumstances to allege that he qualifies to act
of right as tutor.
Present law (C.C.P. Art. 1471(A)(3)) uses the term "judgment by default" in a manner that
is inconsistent with other provisions of the Code of Civil Procedure.
Proposed law clarifies present law by replacing existing terminology with "final default
judgment".
Proposed law also provides that when a final default judgment is rendered as a discovery
sanction against the defendant, the plaintiff must still set forth a prima facie case as required
by Article 1702.
Present law (C.C.P. Art. 1913(B)) requires service by the sheriff of the notice of the signing
of a final default judgment when the defendant was not served personally and has filed no
exceptions or answer.
Proposed law retains present law but provides that service by the sheriff is only required
when the defendant did not otherwise make an appearance by filing a pleading.
Present law (C.C.P. Art. 1913(C)) requires the clerk of court to mail notice of the signing of
a final default judgment to a defendant who filed no exceptions or answer but who was
served personally.
Proposed law clarifies present law by providing that notice of the signing of a final default
judgment shall be mailed by the clerk of court to the defendant unless the defendant was not
served personally, in which case the requirements of Article 1913(B) will apply.
Present law (C.C.P. Art. 3952) uses the term "curator".
Proposed law clarifies present law by replacing "curator" with "attorney" in accordance with
Article 5091.
(Amends C.C.P. Arts. 194(6), 592(A)(3)(e), 853, 855, 1471(A)(intro. para.) and (3), 1913(B)
and (C), and 3952; Provides a Comment to C.C.P. Art. 966)
Page 6 of 6
CODING: Words in struck through type are deletions from existing law; words underscored
are additions.