STATE OF LOUISIANA COURT OF APPEAL, FIRST CIRCUIT DR. MICHAEL GOMILA NO. 2021 CW 0775 VERSUS

THE STATE OF LOUISIANA DEPARTMENT OF HEALTH F/ K/ A LOUISIANA DEPARTMENT OF OCTOBER 05, 2021 HEALTH AND HOSPITALS

In Re: The State of Louisiana, through the Department of Health, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 697174.

BEFORE: WHIPPLE, G. J., PENZATO AND HESTER, JJ.

WRIT DENIED.

VGW CHH

Penzato, J., dissents and would grant the writ. I would reverse the portion of the trial court' s June 15, 2021 judgment, which failed to dismiss the claims of the plaintiff, Dr. Michael Gomila, against the defendant, State of Louisiana, through the Louisiana Department of Health (" the Department"). Plaintiff did not request service of process upon the head of the Department, the named defendant, within ninety days from the commencement of the action pursuant to La. R. S. 13: 5107( A)( 1) & D) ( 1), I find it and as a result, is mandatory that the action be dismissed without prejudice. See La. R. S. 13: 5107( D)( 2); Igbinoghene v. St. Paul Travelers Insurance Co., 2011- 0124 ( La. 4/ 4/ 11), 58 So. 3d 452 ( per curiam).

Accordingly, would grant I the writ and dismiss the claims asserted by plaintiff, Dr. Michael Gomila, against defendant, State of Louisiana, through the Louisiana Department of Health, without prejudice, in accordance with La. R. S. 13: 5107( D)( 2).

COURT OF APPEAL, FIRST CIRCUIT

DEPUTY $CLRK OF COURT FOR THE COURT