My apologies, I already have to update this.....and WOW, I'm at a total loss right now.

OK, here is the actual word for word statute, Art. 561:

"Art. 561. Abandonment in trial and appellate court

A.(1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:

(a) Which has been opened;

(b) In which an administrator or executor has been appointed; or

(c) In which a testament has been probated.

(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years, unless it is a succession proceeding:

(a) Which has been opened;

(b) In which an administrator or executor has been appointed; or

(c) In which a testament has been probated.

(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.

(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriff's service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk's mailing of the order of denial.

(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.

B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court."

I just got off the phone with the assistant at the judge's office. The clerk's office had no info and suggested that I check there instead. Well, some key points from the statute....

1--an ex parte order is appropriate
2--the court "shall" dismiss upon timely ex parte motion, meaning there is no discretion in the law for a judge to do what they prefer. The issue is an issue of fact. If the clock has run, then dismissal is the ONLY appropriate action for the court to take, as laid out in the law.

I won't go nuts posting case law, but the case law in this state, including some from the LA Supreme Court, says that even if the plaintiff were to file motions after the 3 yrs has run out, it cannot revive the clock and the case still must be dismissed.

So, here's where I am going with this. The assistant from the judge's office just told me that my motion is sitting at their office. Once they received my motion, they called the attorney for the plaintiff, and asked said attorney if they wished to continue the case or not. Naturally, that attorney said that they did. So, my motion is supposedly going to be denied. They tipped off the plaintiff that an ex parte motion to dismiss was filed. They ignored the "shall enter a formal order of dismissal" portion of the law and decided that they would much rather allow the case to continue. And then, the assistant wanted to debate with me over the phone two points. She claimed that I erred when I filed this as an ex parte motion, that no motion to dismiss should be filed ex parte, even though the law and tons of case law examples in my state say otherwise. Then, she claimed that even if the 3 year clock runs out, the plaintiff can simply file any motion they choose and continue like nothing happened. When I wrote the motion, I cited the law specifically and quoted it, showing that it calls for an ex parte motion. Then I cited a few case law examples, showing that the clock cannot be restarted by any action of the plaintiff once it has run out.

Thanks for reading this far, I never intended for this to be so long and drawn out. The assistant is calling me back tomorrow to let me know when I can expect to have something in writing about this decision. Any thoughts, anyone??? Thanks....