Gerhardt's, Inc. v. American Diesel Equipment, Inc.
Docket: No. 89-CA-2273
Court: Louisiana Court of Appeal; October 11, 1990; Louisiana; State Appellate Court
The appeal addresses the effectiveness of service of process on American Diesel Equipment, Inc. through an employee, Mary Castaño, rather than its registered agent, Joachim Sampedro. The court ruled that service was ineffective because Sampedro, the designated agent, had neither died, resigned, nor been removed, as required by LSA-C.C.P. art. 1261. Service attempts occurred on May 19 and June 9, 1988, but only Castaño was served after Sampedro was unavailable. Following the service, a default judgment was granted to Gerhardt’s, Inc. in August 1988, but American Diesel later obtained a ruling to annul the judgment due to insufficient service. The trial court reinstated the default judgment in June 1989, prompting the current appeal. The court emphasized that service on Castaño was improper since Sampedro was the designated agent and merely unavailable, thus, proper service should have been attempted through the Secretary of State as per Article 1262. The court concluded that Sampedro’s temporary absence did not constitute 'removal' under Article 1261, reaffirming the requirement for valid service on the registered agent.
The term 'removal' in Article 1261 of the Code of Civil Procedure is not explicitly defined by the Code or case law. However, the Court clarified that 'removal' implies more than a temporary absence of the registered agent. In the case of Yaniga v. Coleman American Moving Services, Inc., the Court determined that the registered agent's permanent relocation out of state constituted 'removal,' allowing for alternative service on an employee under Article 1261(B)(2) instead of on the Secretary of State under Article 1262. In the present case, although the defendant's registered agent was temporarily unavailable, there was still a designated agent for service of process, and the plaintiff was informed only of the agent's uncertain return. Hence, the conditions for alternative service under Article 1261(B) were not met. If service on the registered agent could not be achieved despite diligent efforts, service on the Secretary of State would have been appropriate. Consequently, the default judgment in favor of the plaintiff was reversed, and the case was remanded for further proceedings.
