APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2015-04354, DIVISION "J"
Honorable D. Nicole Sheppard
C. Landry NEWMAN, MATHIS, BRADY & SPEDALE COUNSEL FOR
composed of Chief Judge James F. McKay, III, Judge Edwin A.
Lombard, Judge Joy Cossich Lobrano
Cossich Lobrano, Judge
Xavier University of Louisiana, seeks review of the district
court's July 24, 2018 denial of its motion for
preliminary default against respondent, Elemuel Coleman, an
alleged former student, in a suit filed to recover education
debt. We grant the writ and reverse the district court's
denial of the motion for preliminary default.
7, 2015, relator filed a petition naming respondent as
defendant and demanding payment of a $21, 536.31 student
debt. The petition requested service upon respondent at 926
LeBoeuf Street, New Orleans, LA 70114 (the "LeBoeuf
Street address"). On June 12, 2015, relator filed a
motion to appoint special deputy to serve respondent,
asserting that the "sheriff of this Parish has held the
Citation and Petition which was designated for service on
Elemuel Coleman, for an excess of ten days" and
"has made a return certifying that he has been unable to
effect service of process." On June 15, 2015, the
district court appointed Curtis Stallworth to effect service
on respondent. The district court again appointed Stallworth
to effect service on respondent on June 6, 2018.
21, 2018, Stallworth attested in an Affidavit of Service, in
pertinent part, as follows:
On 6-20, 2018, I served Citation and Petition on Elemuel
Coleman by leaving same at the domicile or usual place of
abode of Elemuel Coleman at 926 LeBoeuf St., N.O. La. 70114
(address) in the hand of Bobby Bolds (name), a person of
suitable age and discretion, residing therein as a member of
said domiciliary establishment, the said Elemuel Coleman
being absent from the domicile at the time of service.
Affidavit of Service and service return on citation were
filed into the record of the district court on June 25, 2018.
On July 5, 2018, relator filed a motion for preliminary
default, submitting that domiciliary service of the petition
and citation was made on respondent on June 20, 2018, the
delays for answering had elapsed, and respondent had failed
to appear or file an answer. On July 24, 2018, the district
court denied relator's motion for preliminary default.
This writ application timely followed.
judgment of default is sometimes referred to as a
'preliminary default.'" Arias v. Stolthaven
New Orleans, L.L.C., 2008-1111, p. 6 (La. 5/5/09), 9
So.3d 815, 819 (citations omitted). "In reviewing
default judgments, the appellate court is restricted to
determining the sufficiency of the evidence offered in
support of the judgment." Id., 2008-1111, p. 5,
9 So.3d at 818. "This determination is a factual one
governed by the manifest error standard of review."
the petition was served by a private process server, as
provided for in La. C.C.P. art. 1293(A), which states in
When the sheriff has not made service within ten days after
receipt of the process or when a return has been made
certifying that the sheriff has been unable to make service,
whichever is earlier, on motion of a party the court shall
appoint a person over the age of majority, not a party and
residing within the state whom the court deems qualified to
perform the duties required, to make service of process in
the same manner as is required of sheriffs. Service of
process made in this manner shall be proved like any other
fact in the case. Any person who is a Louisiana licensed
private investigator shall be presumed qualified to perform
the duties required to make service.
La. C.C.P. art. 1293, the party asserting the validity of a
private service return bears the burden of proof.
Pendleton Mem'l Methodist Hosp. v. Brumfield,
619 So.2d 680, 682 (La.App. 4th Cir. 1993).
of citation or other process may be either personal or
domiciliary, and except as otherwise provided by law, each
has the same effect." La. C.C.P. art. 1231.
"Domiciliary service is made when a proper officer
leaves the citation or other process at the dwelling house or
usual place of abode of the person to be served with a person
of suitable ...