Under Louisiana law, the plaintiff in a personal injury lawsuit may file his complaint with the court by fax. However, the plaintiff must, within five days of transmitting the fax, forward to the clerk of court the original, signed complaint and any fees that are due. If the plaintiff fails to forward the original document, the faxed copy will “have no force or effect.” La. R.S. 13:580. The fax option can potentially help preserve an action that is facing the expiration of its prescriptive period. However, as we will see with the recent case of Taylor v. Broomfield, the courts do not take lightly the requirement that the original complaint must be submitted to the clerk within the time frame outlined in the statute.
On September 17, 2009, Jarred Taylor was involved in a serious car accident in Jackson Parish. The other party to the collision was Brandon Goss who was driving a Mack truck owned by Broomfield, Inc. Taylor suffered various injuries including two broken ribs, multiple contusions, and lacerations to his face. Taylor’s lawyer initiated a lawsuit against Broomfield and its insurer on September 17, 2010 (exactly one year after the accident and the last day of the prescriptive period) by transmitting a faxed complaint to the Jackson Parish Court. The faxed complaint was not notarized. Although Taylor’s counsel had, according to Louisiana statute, until September 24, 2010 to send the original complaint to the court’s clerk, the original document was not filed until October 5, 2010. The original complaint filed with the clerk on October 5 included a verification notarized by one Donna Kay Tucker on September 20, 2010.
On November 12, 2010, Broomfield filed an exception of prescription requesting that Taylor’s suit be dismissed because it was filed after the one-year prescriptive period had elapsed. A hearing was held on January 13, 2011. In opposition to Broomfield’s exception, Taylor’s attorney argued that when his office faxed the complaint on September 17, 2010, his staff immediately mailed the original complaint, along with the filing fees, to the clerk of court. Several staff members from the law firm testified to this effect, but none of them could explain who the notary, Donna Kay Tucker, was or why the complaint’s verification reflected a date after the day the firm put the document in the mail. Ultimately, the trial judge denied the exception of prescription and held that the notary date was “merely harmless error” and that the complaint had been timely forwarded by Taylor’s counsel per state law. Broomfield appealed.
The Second Circuit began its analysis by reviewing the burden of proof: it noted that
“[a]lthough the party raising a peremptory exception of prescription ordinarily bears the burden of proof, when prescription is evident from the face of the pleading, the plaintiff bears the burden of showing the action has not prescribed.” Cooksey v. Heard, McElroy & Vestal, L.L.P. This means that the plaintiff must prove by a preponderance of the evidence that the original complaint and fees were mailed to the clerk; this proof can take the form of affidavits or receipts that show the date and time of mailing or delivery. The court noted that Taylor’s attorney and office staff “testified that they executed their duties on September 17, 2010 with regard to the petition.” Yet, when questioned, “no one could confirm that the envelope [containing the complaint] was actually forwarded from the firm to the post office nor could anyone explain the September 20, 2010 date affixed by the notary,” who was unknown to the office staff. Also, no witness could explain why the faxed complaint was not notarized, while the purported “original” delivered to the clerk (late) was notarized. The court reasoned, “Taylor has neither postage proof nor any other form of time-stamped evidence to prove that his counsel timely forwarded the petition for damages. Without such proof of mailing to counter the missing and conflicting evidence, this court cannot agree that Taylor met his burden of proof by a preponderance of the evidence.” Accordingly, the court concluded that the trial court was clearly wrong in denying the exception of prescription, and reversed its decision.
The Taylor case makes plain the critical importance of meeting filing deadlines in litigation. A plaintiff must choose his counsel carefully to ensure his case is not lost before it begins due to a technical error like failing to properly and timely file the complaint with the court. I