Adrena S. Freeman Versus Ochsner Clinic Foundation, Dr. George M. Fuhrman, Touro Infirmary and Dr. Cathy Swain-Jones

ADRENA S. FREEMAN NO. 20-C-283

VERSUS FIFTH CIRCUIT

OCHSNER CLINIC FOUNDATION, DR. COURT OF APPEAL
GEORGE M. FUHRMAN, TOURO
INFIRMARY AND DR. CATHY SWAIN-JONES STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 799-284, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

November 10, 2020

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Stephen J. Windhorst,
Hans J. Liljeberg, and John J. Molaison, Jr.

WRIT GRANTED
SJW
HJL
JJM

COUNSEL FOR PLAINTIFF/RESPONDENT,
ADRENA S. FREEMAN
Richard H. Barker, IV

COUNSEL FOR DEFENDANT/RELATOR,
CATHY SWAIN-JONES, MD
Michelle A. Bourque
Mark E. Kaufman

COUNSEL FOR DEFENDANT/RESPONDENT,
OCHSNER CLINIC FOUNDATION AND DR. GEORGE M. FUHRMAN
Don S. McKinney
William K. Wright, IV

COUNSEL FOR DEFENDANT/RESPONDENT,
TOURO INFIRMARY
Valerie E. Fontenot

WINDHORST, J.

Relator, Dr. Cathy Swain-Jones, seeks review of the trial court’s August 12,

2020 judgment denying her exception of insufficiency of service of process and

motion for involuntary dismissal. In her writ application, relator contends that the

trial court erred in finding good cause for not requesting service on relator. Relator

argues that two internet searches for relator’s address are not evidence of diligence

or good cause for failing to request service. Relator further contends that plaintiff’s

counsel knew the identity of relator’s counsel in the medical review panel

proceeding but made no attempt to contact relator’s counsel in an attempt to ascertain

relator’s address. For the following reasons, we grant relator’s writ application,

reverse the trial court’s August 12, 2020 judgment, sustain relator’s exception of

insufficiency of service of process, grant relator’s motion for involuntary dismissal,

and dismiss the claims asserted by plaintiff against relator, Dr. Cathy Swain-Jones,

without prejudice.

PROCEDURAL HISTORY

On September 10, 2019, plaintiff filed a petition in the 24 th JDC for medical

malpractice against several defendants, including relator. The petition alleged that

relator “is a resident of Abu Dhabi, UAE” and “was doing business in this district

and state at all material times.” The petition also alleged, “It was reported that Dr.

Swain-Jones closed the practice and relocated to the [sic] Abu Dhabi, UAE.”

Plaintiff requested that service on relator be “temporarily” withheld and no service

address was provided. Under the provisions of La. C.C.P. art. 1201 C, the last day

for requesting service was 90 days after filing, or December 10, 2019.

On April 3, 2020, relator filed an exception of insufficiency of service of

process and a motion for involuntary dismissal, arguing that plaintiff did not request

service on her within 90 days of filing the petition, and thus, she is entitled to be

dismissed without prejudice pursuant to La. C.C.P. art. 1672 C. Relator argued that

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plaintiff had more than six months between filing her petition and the COVID-19

closures to request service. Because plaintiff did not request service within 90 days

of filing her petition, relator contended that she was entitled to a dismissal without

prejudice pursuant to La. C.C.P. art. 1672 C. In opposition, plaintiff argued that

good cause existed for her failure to request service, “i.e. that upon information and

belief, [relator] is living and working in some unknown location in the United Arab

Emirates.” Plaintiff contended that this fact was alleged by her in the petition and it

was not denied by defendant.

In reply, relator contended that plaintiff did not show good cause and she

should be dismissed from the lawsuit because (1) plaintiff did not even attempt to

request service upon her within 90 days; (2) under the law, “attempts” at requesting

service that lack diligence do not constitute good cause; (3) plaintiff was aware that

relator was represented by counsel in the medical review panel proceeding but did

not attempt to contact relator’s prior counsel to request waiver of service, acceptance

of service or relator’s address for long-arm service; (4) plaintiff’s internet searches

are not dated; (5) plaintiff did not show that the internet searches were conducted

within 90 days of filing her petition; and (6) the two internet searches for relator’s

address is not evidence of diligence or good cause for failing to request service on

relator. In support, relator attached her search of the Louisiana State Board of

Medical Examiners’ directory showing relator’s address.

LAW and ANALYSIS

La. C.C.P. art. 1201 C provides in pertinent part, “Service of the citation shall

be requested on all named defendants within ninety days of the commencement of

the action.” If service is not requested within 90 days, La. C.C.P. art. 1672 C requires

dismissal without prejudice of the claim(s) against a named defendant for whom

service of process has not been requested “unless good cause is shown why service

could not be requested.” When, on the face of the pleadings, the 90-day time limit

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for requesting service has been exceeded without request, the burden of proof is upon

the party alleging “good cause” to show “why service could not be requested.”

A trial court's finding of "good cause" for why service could not be requested

within the proper time period is a question of fact subject to the manifest error

standard of review. Corbin v. La. Dep't of Highways, 44,882 (La. App. 2 Cir.

12/09/09), 26 So.3d 945, 947; See also Davis v. Caraway, 14-264 (La. App. 5 Cir.

10/29/14), 164 So.3d 223, 225. Louisiana courts strictly construe the good cause

requirement of La. C.C.P. art. 1672 C. Barnett v. Louisiana State University Medical

Center-Shreveport, 02-2576 (La. 02/07/03), 841 So.2d 725, 726; Boyd v. Picayune,

11-119 (La. App. 5 Cir. 11/15/11), 82 So.3d 298, 300. Although good cause is not

defined in La. C.C.P. art. 1672 C, Louisiana courts have held that mere confusion,

inadvertence, or mistake in requesting service on the part of plaintiff’s counsel is not

a sufficient basis for good cause. Norbert v. Loucks, 01-1229 (La. 06/29/01), 791

So.2d 1283, 1285; Johnson v. University Medical Center in Lafayette 07-1683 (La.

11/21/07), 968 So.2d 724, 725; Liberty Mut. v. Noble, 04-727 (La. App. 5 Cir.

11/30/04), 889 So.2d 1158, 1159. Confusion as to how or upon whom service must

be made is not “good cause” for not properly requesting service timely. Taylor v.

LSU Medical Center, 38,944 (La. App. 2 Cir. 10/14/04), 892 So.2d 581, writ denied,

05–0480 (La. 05/20/05), 902 So.2d 1049.

Although consideration of exhibits not admitted into evidence was not

assigned as an error in this case, the Supreme Court and this Court have routinely

held that appellate courts may not consider evidence not properly admitted into

evidence, whether the lack of admission into evidence was assigned as error or not.

Quinn v. La. Citizens Prop. Ins. Corp., 12-152 (La. 11/02/12), 118 So.3d 1011;

Barnes v. Jacob, 13-596 (La. App. 5 Cir. 12/12/13), 131 So.3d 363, 364. Here, the

parties referred to plaintiff’s exhibits and relator’s exhibits; however, none of these

exhibits were offered or admitted into evidence. Exhibits not formally admitted into

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evidence could not be considered by the trial court in its decision, they are not

properly before this Court, and we cannot consider them.

It is clear from the record that service on Dr. Swain-Jones was not requested

until after the exception, and eight months after the expiration of 90 days. No request

for a current address, presumably in Abu Dhabi, was made on counsel who

represented Dr. Swain-Jones before the medical review panel.1 There was no request

for service on the last-known address, or any other. No timely long arm service was

attempted. No request for appointment of a curator was timely made. Given that

the requirement to request service within 90 days of filing suit is to be strictly

construed, the unsupported explanation as to why plaintiff could not request service

clearly did not constitute good cause within well-settled strict application of La.

C.C.P. art. 1201C.

Nevertheless, had the exhibits been admitted into evidence, our conclusion

would be no different. It is undisputed that plaintiff made no attempt in a 6-month

period to serve relator. The petition alleged only that “It was reported that Dr.

Swain-Jones closed the practice and relocated to the Abu Dhabi, UAE,” but plaintiff

did not specify what attempts, if any, were made to locate an address in Abu Dhabi,

or anywhere else.

Plaintiff attached and identified two undated exhibits to her memorandum in

opposition to the exception. Exhibit A is alleged to be a “screenshot of the Louisiana

State Board of Medical Examiners’ directory” showing that relator is not listed as a

member. Exhibit B is alleged to be a “screenshot of the current Google search engine

results for Swain-Jones.”2 Exhibit B, however, is not “Google search engine

1 We recognize that such a request would probably have been fruitless, and that medical review

panel counsel for Dr. Swain-Jones was not yet counsel of record in this case at the time.
Nevertheless, when strictly construed as required, “good cause” cannot be assumed, and all
logical and reasonable means to obtain information to effect service should be attempted.
2 Neither exhibit is a clear screen print taken digitally by the computer of the entire image displayed

on its screen. Both are grainy smartphone photos of most of the computer screens, but they
appear to be sufficiently legible.

20-C-283 4

results,” but is a photo of a computer screen showing a single internet page. Based

on counsel’s explanation in the transcript, it was a page from the ‘My Business’

website. It contains a local Metairie address and a phone number for Dr. Swain-

Jones, which counsel states is disconnected. The memorandum makes no allegation

regarding the address in Exhibit B. Significantly, no screenshot or photo of the

“current Google search engine results” or SERP3 was provided, nor were any other

results of the Google search provided or revealed. There was no assertion or

suggestion that this was the only result of the Google internet search. Whether the

Google search contained other useful sites or information was not addressed.

Moreover, the exhibits are undated. Whether they were produced within 90

days of filing suit is determinative of whether they may have any value to show

“good cause” within the 90 days. The Google search was alleged to have been

“current” on or about July 21, 2020, the date of the Certificate of Service of

plaintiff’s opposition memorandum signed by plaintiff’s counsel. If the Google

internet search was “current” at that time, it was performed seven months past the

expiration of the 90-day time limit for requesting service. By that time, it could not

have been the basis for good cause for not timely requesting service seven months

earlier. At best, the date of the internet search is unknown. Thus, even considering

the exhibits, we find that plaintiff did not provide support for a finding of “good

cause” for why service could not be requested within 90 days of filing the petition.

Therefore, based upon our review of the writ application, transcript, and

exhibits attached thereto, we find the trial court was manifestly erroneous in denying

relator’s exception of insufficiency of service of process and motion for involuntary

dismissal. Accordingly, we grant relator’s writ application, reverse the trial court’s

August 12, 2020 judgment, sustain relator’s exception of insufficiency of service of

3 Search Engine Results Page, which is the list of results of an internet search provided by the

search engine.

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process, grant relator’s motion for involuntary dismissal, and dismiss the claims

asserted in this case by plaintiff against relator, Dr. Swain-Jones, without prejudice.

WRIT GRANTED

20-C-283 6

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 10, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-C-283
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
MARK E. KAUFMAN (RELATOR) MICHELLE A. BOURQUE (RELATOR) DON S. MCKINNEY (RESPONDENT)
VALERIE E. FONTENOT (RESPONDENT)

MAILED
RICHARD H. BARKER, IV (RESPONDENT) WILLIAM K. WRIGHT, IV (RESPONDENT)
ATTORNEY AT LAW ATTORNEY AT LAW
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