[B]Case Name:* [/B][I]Blaise Dibenedetto v. Noble Drilling Company, et al.
[/I][B]Date Decided:[/B] October 21, 2009
[B]Court: [/B]Court of Appeal of Louisiana Fourth Circuit
[B]Judge: [/B]Judge Ramsey
[B]Citation:[/B] 2009 WL 3387042 (La.App. 4 Cir.)[B]Background:
[/B]This involved three appeals of pre-trial judgment in a personal injury lawsuit brought by plaintiff, Blaise DiBenedetto (“Blaise”), against defendants claiming he contracted malignant mesothelioma as a result of exposure to asbestos while working for Noble Drilling Company (“Noble”).
The trial court upheld plaintiff’s right to dismiss with prejudice, South African Marine Corporation, and Industrial Development Corporation of South Africa and (2) Granted plaintiff’s request to prohibit defendants from filing a third party demand against the dismissed defendants, South African, and Industrial Development.
The jumbled procedural history is as follows:
The two South African companies were named as defendants in Blaise’s petition. On that same day, Blaise filed a petition to dismiss the two companies as defendants. Another defendant, CTS, filed a third-party demand naming the two companies as third party defendant. In response to CTS’s motion, Blaise requested an order prohibiting any defendant from filing a third party claim against any defendant previously dismissed with prejudice.
The trial court granted Blaise’s motion to dismiss all third party claims against the two companies.
CTS asserted three assignments of error. (1) The trial court erred when it dismissed the two companies with prejudice before their entity had made an appearance in the suit (2) the trial court erred when it issued an order prohibiting any party from bringing a third party demand against the two companies and (3) the trial court erred when it dismissed CTS’s third party demand against the two South African companies.
[B]Issue: [/B]
Did this Court find that the trial court erred in dismissing, with prejudice, the claim against the two South African companies?
[B]Held:
[/B]CTS claimed that the dismissal of the two South African companies violated Louisiana Code of Civil Procedure.
La. C.C.P. article 1671 states in part, “A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant”.
CTS contended that this mandated a judgment dismissing a defendant, at the plaintiff’s request, prior to a general appearance must be without prejudice.
However, this Court found that 1671 applies to plaintiffs’ motions to dismiss defendants without prejudice and this case involved dismissal with prejudice.
Accordingly, this Court affirmed the lower court’s ruling that the two defendants’ were properly dismissed with prejudice.
[B]Comment:
The plaintiff here employed a common litigation strategy. That is, in order to speed up the case, they named two defendants as parties then subsequently moved to dismiss them with prejudice and for an order to bar them as parties to the case.[/B]
[B]Otherwise, the defendants would have moved to include the defendants as third party defendants and lengthened the litigation process with motions and hearings regarding the matter. [/B]
[B]Steve Gordon [/B]*