Jimenez v. La. Dep't of Labor

Full title: RITA JIMENEZ v. STATE OF LOUISIANA DEPARTMENT OF LABOR

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Nov 6, 2015

NUMBER 2015 CA 0630 (La. Ct. App. Nov. 6, 2015)

Opinion

NUMBER 2015 CA 0630

11-06-2015

RITA JIMENEZ v. STATE OF LOUISIANA DEPARTMENT OF LABOR

Rita Jimenez Pearl River, LA Pro Se, Appellant Plaintiff - Rita Jimenez J. Jerome Burden Baton Rouge, LA Attorney for Appellee Defendant - Louisiana Workforce Commission

WELCH, J.

NOT DESIGNATED FOR PUBLICATION

Appealed from the 22^nd Judicial District Court In and for the Parish of St. Tammany, Louisiana
Trial Court Number 2014-13514
Honorable Allison Penzato, Judge Rita Jimenez
Pearl River, LA
Pro Se, Appellant
Plaintiff - Rita Jimenez
J. Jerome Burden
Baton Rouge, LA
Attorney for Appellee
Defendant - Louisiana Workforce
Commission
BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.

The plaintiff/appellant, Rita Jimenez, appeals a judgment involuntarily dismissing her petition for judicial review filed against defendant/appellee, Administrator, Louisiana Workforce Commission ("LWC"). For the reasons that follow, we vacate the judgment and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

This matter arises out of a dispute over the denial of unemployment insurance benefits. The plaintiff was employed as the supervisor of phlebotomy by Slidell Memorial Hospital from September 5, 2006 to April 1, 2014. The plaintiff's duties as a supervisor included scheduling employees for work. Slidell Memorial Hospital's policy dictated that all employees receive CPR training within 90 days of commencing employment. The plaintiff was terminated on April 1, 2014, on the grounds that she repeatedly scheduled a certain employee to work, who had not completed the CPR training within the 90-day probationary period.

On April 7, 2014, the plaintiff submitted an application for unemployment insurance benefits. The LWC issued a claims determination on May 21, 2014, notifying the plaintiff of her disqualification from receiving benefits due to her failure to abide by company policies. On June 2, 2014, the plaintiff filed an appeal with the Appeals Tribunal for the Louisiana Workforce Commission ("Appeals Tribunal"). Both representatives from the hospital and the plaintiff, in proper person, participated in a hearing before the Appeals Tribunal via telephone conference on June 27, 2014. That same day, the Appeals Tribunal issued a decision affirming LWC's determination that the plaintiff was disqualified from receiving benefits under the provisions of La. R.S. 23:1601(2). The plaintiff then timely sought review of the Appeals Tribunal's decision with the Louisiana Board of Review on July 10, 2014. The Louisiana Board of Review affirmed the Appeals Tribunal's decision on July 21, 2014.

Action in the District Court

The plaintiff timely filed for judicial review of the Louisiana Board of Review's decision in the 22^nd Judicial District Court in August of 2014. In compliance with La. R.S. 23:1634, LWC, as defendant, filed an answer and attached a copy of the administrative record. Further, at LWC's request, a formal hearing was set for January 23, 2015. Notice of the January 23, 2015 hearing was issued on December 10, 2014 and mailed by the clerk of court to the plaintiff, LWC, and Slidell Memorial Hospital.

The plaintiff, who is without counsel, failed to appear at the January 23, 2015 hearing. Upon LWC's application in open court and prior to presentation of the merits of the action, the district court dismissed the plaintiff's petition for judicial review with prejudice due to the plaintiff's failure to appear. A judgment dismissing the plaintiff's action was signed by the district court on February 12, 2015. LWC attached a Rule 9.5 Certificate to the judgment, which asserted that a copy of the proposed judgment had been circulated to non-represented parties and appropriate counsel prior to submission to the district court, and that no opposition had been received. The plaintiff filed a timely written motion for appeal to this court, and a devolutive appeal was granted.

The Instant Appeal - Assignment of Error

The plaintiff asserts that the district court erred in involuntarily dismissing her petition for judicial review with prejudice due to her failure to appear at the January 23, 2015 hearing.

INVOLUNTARY DISMISSAL

Standard of Review

The district court's decision to dismiss a case for failure to appear, or comply with a court's order, is reviewed under an abuse of discretion standard. Zavala v. St. Joe Brick Works, Inc., 2004-0065 (La. App. 1^st Cir. 12/17/04), 897 So.2d 703, 705.

Law and Discussion

Any party to proceedings before the Louisiana Board of Review may obtain judicial review thereof by filing in the district court. La. R.S. 23:1634(A). Such proceedings shall be held in a summary manner and given preference and priority over all other civil cases except cases arising under workers' compensation law of this state. La. R.S. 23:1634(B). In any proceeding under La. R.S. 23:1634, the findings of the Louisiana Board of Review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. Id. Therefore, the January 23, 2015 hearing was the trial on plaintiff's claims herein. See La. Code Civ. P. art. 2595.

Louisiana Code of Civil Procedure article 1672(A)(1) provides that "[a] judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial." When a plaintiff fails to appear for trial, the court must determine whether the dismissal is to be with or without prejudice. La. Code Civ. P. art. 1672(A); Zavala v. St. Joe Brick Works, Inc., 897 So.2d at 704 (citing England v. Baird, 99-2093 (La. App. 1^st Cir. 11/3/00), 772 So.2d 905, 907.))

However, dismissal for failure to prosecute is a harsh remedy and the district court must also consider a broad range of less severe alternatives prior to deciding on dismissal. England v. Baird, 772 So.2d at 908. An important consideration before dismissal of a claim is "whether the misconduct was by the attorney or the client, or both." Zavala v. St. Joe Brick Works, Inc., 897 So.2d at 705. If the record does not contain evidence of a plaintiff's act of "willfulness, bad faith, or fault," a single failure of a plaintiff to appear may not be sufficient support for a dismissal of the plaintiff's claim, with prejudice. Kelly v. Kelly, 11-1932 (La. App. 1^st Cir. 6/13/12), 94 So.3d 179, 181 (citing Zavala v. St. Joe Brick Works, Inc., 897 So.2d at 705; In re Medical Review Panel, 99-2088 (La. App. 1^st Cir. 12/22/00), 775 So.2d 1214, 1218)).

In her motion for appeal filed with the trial court, the plaintiff admitted that she received the notice for the January 23, 2015 hearing. She further alleged that she contacted the clerk of court's office to determine whether she needed to attend said hearing and was "informed by the party on the [phone] that the hearing was between the State of Louisiana Workforce Commission and Slidell Memorial Hospital and that [she] need not be present." The plaintiff contends that she learned of the dismissal of her matter after receiving notice via letter.

The defendant contends it is statutorily entitled to dismissal of this matter under the express terms of La. Code Civ. P. art. 1672 due to the plaintiff's failure to appear at the January 23, 2015 hearing. Moreover, according to the defendant, the only question over which the district court had any discretion in this factual scenario was whether the dismissal would be with or without prejudice. The defendant directs this court's attention to Mills v. Drumm, 379 So.2d 79 (La. App. 4^th Cir. 1980), writ denied, 381 So.2d 1232 (La. 1980), wherein the Fourth Circuit held that dismissal under La. Code Civ. P. art. 1672 is mandatory upon application by the defendant in the event that a plaintiff fails to appear at the trial. In Mills, the defendants moved for a dismissal under La. Code Civ. P. art. 1672 after the unrepresented plaintiff failed to appear for the trial. The district court denied the motion for involuntary dismissal and instead ordered that a rule be filed against the plaintiff to show cause why the case should not be dismissed and a trial date set to hear said rule. The plaintiff failed to appear at the trial of the rule and the district court dismissed the action. The plaintiff sought to nullify the judgment of dismissal on the grounds that he was not properly served with a judgment setting the trial on the rule to show cause. The Fourth Circuit upheld the district court's dismissal of the plaintiff's action, but explained that the defendants' application for involuntary dismissal at the first set trial was sufficient to support a mandatory ex parte dismissal of the action under La. Code Civ. P. art. 1672. Based on its finding that the defendants were entitled to dismissal at the first hearing, the court in Mills found immaterial the plaintiff's objections regarding service of the rule to show cause related to the second hearing. Id., 379 So.2d at 80.

We note that Mills was decided by the Fourth Circuit prior to the First Circuit's decisions in England, Zavala and Kelly, supra, which recognize the harsh nature of dismissal and direct district courts to consider alternatives prior to dismissal. Further, the jurisprudence of this court also holds that dismissal with prejudice is not warranted unless the record evidences "willfulness, bad faith or fault" on the part of the plaintiff, and his counsel, if applicable. For instance, in England, the plaintiff, a prisoner, was unable to properly secure transportation to a trial on his tort claim. The district court dismissed his action. This court, recognizing the harshness of the sanction of dismissal, found dismissal of the plaintiff's action was an abuse of discretion. England v. Baird, 772 So.2d at 908-909. In support of our decision to vacate the dismissal, this court noted the plaintiff's diligence in pursuing his claim as well as the district court's failure to consider less harsh alternatives. Id. at 909.

From our review of the record herein, we find that dismissal of the plaintiff's action does not appear warranted. We acknowledge that the facts herein are distinguishable from those in England, wherein the plaintiff, as a prisoner, was reliant on others to provide him transportation. However, the record herein demonstrates that the plaintiff has diligently and timely pursued her claim in multiple forums, including, the LWC, the Appeals Tribunal, the Louisiana Board of Review, and the district court. Further, the record lacks any evidence demonstrating the district court considered options other than dismissal with prejudice after the plaintiff was found to be absent from the January 23, 2015 hearing. Importantly, there is no evidence to support a finding that the plaintiff's failure to appear at the hearing was an act of "willfulness, bad faith, or fault" sufficient to justify a dismissal of her action with prejudice. Under these circumstances, we find the dismissal of plaintiff's claims with prejudice should be vacated. See La. Code Civ. P. art. 2164 (providing that the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal).¹

1 In vacating the judgment of dismissal, we express no opinion as to the merits of any claims or defenses. --------

CONCLUSION

For the reasons assigned herein, the February 12, 2015 judgment of the 22^nd Judicial District Court, granting the involuntary dismissal of Rita Jimenez's petition for judicial review with prejudice in favor of Administrator, Louisiana Workforce Commission, is vacated, and the matter is remanded for further proceedings. No costs are assessed against either party pursuant to La. R.S. 23:1692.

JUDGMENT VACATED; REMANDED.