Louisiana exceptions: three kinds, two deadlines, and two that waive themselves

Louisiana does not have a motion to dismiss. It has exceptions, and there are three kinds. Which one your objection belongs to decides when you must file it and whether you lose it by silence.

Two of the three are waived unless pleaded in the right window. The third can be filed almost up to submission.

The declinatory exception — the court, the citation, the venue

La. C.C.P. art. 925:

A. The objections that may be raised through the declinatory exception include but are not limited to the following:

(1) Insufficiency of citation. (2) Insufficiency of service of process, including failure to request service of citation on the defendant within the time prescribed by Article 1201(C), or failure to request service of petition within the time prescribed by Article 3955. (3) Lis pendens under Article 531. (4) Improper venue. (5) The court's lack of jurisdiction over the person of the defendant.

… B. When two or more of these objections are pleaded in the declinatory exception, they need not be pleaded in the alternative or in any particular order. C. All objections that may be raised through the declinatory exception are waived unless pleaded therein.

Subsection C is the sentence to remember: waived unless pleaded therein.

Note (2) in particular. Louisiana requires service to be requested within a prescribed time, and a failure to do so is itself an objection — which is a distinctively Louisiana point of attack on a stale case.

The dilatory exception — the shape of the petition

La. C.C.P. art. 926:

A. The objections which may be raised through the dilatory exception include but are not limited to the following:

(1) Prematurity. (2) Want of amicable demand. (3) Unauthorized use of summary proceeding. (4) Nonconformity of the petition with any of the requirements of Article 891. (5) Vagueness or ambiguity of the petition. (6) Lack of procedural capacity. (7) Improper cumulation of actions, including improper joinder of parties. (8) Discussion. B. All objections which may be raised through the dilatory exception are waived unless pleaded therein.

Again — waived unless pleaded therein.

Prematurity (1) is the one to check in any case with a contractual or statutory precondition, and vagueness or ambiguity (5) is Louisiana's answer to a petition that does not say enough.

The peremptory exception — the ones that end the case

La. C.C.P. art. 927:

A. The objections that may be raised through the peremptory exception include but are not limited to the following:

(1) Prescription. (2) Peremption. (3) Res judicata. (4) Nonjoinder of a party under Articles 641 and 642. (5) No cause of action, including an objection of no cause of action in part, as to one or more but fewer than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention. (6) No right of action, or no interest in the plaintiff to institute the suit. (7) Discharge in bankruptcy.

Two of these deserve particular attention.

Prescription (1) is Louisiana's limitations defence — the equivalent of the statute of limitations everywhere else, and the reason this exception matters so much in debt cases. See the limitations defence in a debt case for the general principle, and note that in Louisiana it travels as a peremptory exception rather than as an affirmative defence in the answer.

No cause of action (5) and no right of action (6) are different things. (5) asks whether the law affords a remedy on the facts pleaded. (6) asks whether this plaintiff is the person entitled to bring it. Conflating them is the classic error.

Note also that (5) expressly reaches part of a case — "in part, as to one or more but fewer than all of the claims, demands, issues, or theories."

The two deadlines

La. C.C.P. art. 928:

A. The declinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than entry or removal of the name of an attorney as counsel of record, extension of time within which to plead, security for costs, or dissolution of an attachment issued on the ground of the nonresidence of the defendant, and in any event, prior to the signing of a default judgment. When both exceptions are pleaded, they shall be filed at the same time, and may be incorporated in the same pleading. When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.

B. The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.

Four safe filings do not trigger the declinatory and dilatory deadline: entering or removing counsel of record, an extension of time to plead, security for costs, and dissolving an attachment based on non-residence. Anything else seeking relief does.

And note the backstop: "in any event, prior to the signing of a default judgment."

When both are pleaded, they must be filed at the same time and may share a pleading — and, once together, need no particular order or alternative pleading.

How this affects your answer date

Filing an exception changes the answer deadline. La. C.C.P. art. 1001(B):

When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within fifteen days after the exception is overruled or referred to the merits, or fifteen days after service of the amended petition.

Fifteen days — shorter than the original 21 (or 30 where discovery was served with the petition). See answering a Louisiana petition.

And if you miss everything

A defendant who files nothing faces a default judgment under the post-2022 framework — one step, with a prima facie case required and, in tort cases, seven days' notice by regular mail. See the Louisiana default judgment.

Note the link back to art. 928(A): the declinatory and dilatory exceptions survive until a default judgment is signed, so a defendant who acts before the judgment is entered has not necessarily lost them.

How Louisiana compares

A short checklist

1. Classify the objection first. Declinatory, dilatory or peremptory decides the deadline and whether silence waives it.
2. File declinatory and dilatory exceptions before or in the answer — and before any other pleading seeking relief.
3. File them together if you have both; the article requires it.
4. Do not lose them by filing something else first. Only four filings are safe: counsel changes, an extension to plead, security for costs, and dissolving a non-residence attachment.
5. Check the service request under art. 1201(C) — failure to request service in time is a declinatory objection.
6. Raise prescription as a peremptory exception, and remember it can be filed at almost any stage.
7. Keep no cause of action and no right of action separate. They ask different questions.
8. Diarise fifteen days from the overruling or referral of an exception, or from service of an amended petition.
9. If a default judgment is looming, file before it is signed — that is the backstop deadline for the threshold exceptions.

Where these rules live

• La. C.C.P. art. 925 — Objections Raised By Declinatory Exception; Waiver
• La. C.C.P. art. 926 — Objections Raised By Dilatory Exception; Waiver
• La. C.C.P. art. 927 — Objections Raised By Peremptory Exception
• La. C.C.P. art. 928 — Time of Pleading Exceptions
• La. C.C.P. art. 891 — Form of original petition
• La. C.C.P. art. 1001 — Delay For Answering

This page explains what the Code says. It isn't legal advice, and the standards applied to each objection — particularly prescription and no cause of action — are developed in case law this site doesn't cover.