If an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect the incidental action, which must be tried and decided independently of the principal action.
Art. 1039.Effect of Dismissal of Principal Action
Book II. Ordinary Proceedings · Title I. Pleading · Chapter 6. Incidental Actions · Amendment history unavailable · Last verified July 30, 2026
In one sentenceArticle 1039 provides that once an incidental demand has been pleaded, a later dismissal of the principal action doesn't affect the incidental demand, which must be tried and decided on its own.
Full Text of Art. 1039
Plain-English Summary
A plaintiff who decides to walk away from a lawsuit can't take the defendant's reconventional demand down with it. Article 1039 protects any incidental demand pleaded before the plaintiff moves to dismiss the principal action: the dismissal of the principal action doesn't reach the incidental demand at all.
The incidental action keeps going on its own track. Article 1039 requires it to be tried and decided independently of the principal action it was once attached to. A defendant's reconventional demand, once filed, has a life of its own — the plaintiff's decision to abandon the original suit doesn't erase it.
Frequently Asked Questions
If a plaintiff dismisses the lawsuit, does that also dismiss the defendant's reconventional demand?
No. Article 1039 says a dismissal of the principal action doesn't affect an incidental demand that was already pleaded.
Does the incidental demand need to be pleaded before the motion to dismiss for this protection to apply?
Yes. Article 1039 protects incidental demands pleaded prior to the plaintiff's motion to dismiss the principal action.
What happens to the incidental action after the principal action is dismissed?
It continues on its own. Article 1039 requires it to be tried and decided independently of the dismissed principal action.
Source & verification. Article text is reproduced verbatim from
the Louisiana Code of Civil Procedure (legis.la.gov). Enacted by the Louisiana Legislature.
Last verified July 30, 2026.
· Official source
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