DENNIS R. BAGNERIS, SR., Judge.

Transport Service Co. of Illinois, Dan Davis, and Protective Insurance Company (hereinafter collectively referred to as "Transport"), defendants/appellants herein, appeal from a district court judgment, which denied its peremptory exception of prescription and made a determination of liability and causation in favor of plaintiffs who claimed to be injured by an alleged chemical spill in August 2002. After reviewing the record and applicable law, we hereby affirm the denial of Transport's peremptory exception of prescription, we reverse the district court's determination of causation by applying the Housley presumption, and we remand the matter to the district court for further proceedings.

On August 7, 2002, Transport Service Co. of Illinois' driver, Don Davis, hauled a load of spent caustic in a tank on a tractor/trailer from a Marathon Oil Company refinery in Illinois to Harvey, Louisiana. The entire product was pressure off-loaded at Delta Terminal, which had purchased the spent caustic from Marathon. Only residue remained in the tank. Mr. Davis then drove the tractor/trailer to Leonidas Street in New Orleans so that he could eat dinner with his parents. While Mr. Davis was eating dinner, a hissing sound was emitted from the top of the tractor/trailer's dome area. Neighbors who heard the hissing sound called the police. The police arrived and did not deem an evacuation necessary.

The first lawsuit was filed on August 7, 2003, by Shirley Fulford et al. in the Civil District Court for the Parish of Orleans as a class action; a second lawsuit, also a class action, was also filed on August 7, 2003, in Civil District Court by Yolanda Abram (collectively referred to the "Fulford/Abram plaintiffs").

Transport timely removed the Fulford and Abram lawsuits to the United States District Court for the Eastern District of Louisiana; the two suits were consolidated. Following a hearing, the plaintiffs' motion for class certification was denied on June 1, 2004, with the order entered into the record on the same day. The Fulford/Abram plaintiffs filed a motion for reconsideration that was denied. The Fulford/Abram plaintiffs appealed to the United States Fifth Circuit, but subsequently dismissed their appeal.

Ms. Smith, Mr. Porter, and Mr. Dixon filed this current lawsuit on June 8, 2004, making the same class action allegations as contained in the Fulford/Abram lawsuits. On September 20, 2004, the trial court granted the defendants' declinatory exception of lis pendens and, pursuant to La. C.C.P. art. 532, stayed the class action claims pending resolution of the federal actions. The trial court also ruled that Ms. Smith, Mr. Porter, and Mr. Dixon could proceed forward with their individual actions against Transport. As to other individuals not named in the lawsuit, the trial court ruled that they had thirty days from the judgment to file their individual actions but that the judgment did not affect any prescriptive periods that had already accrued.

On October 4, 2004, plaintiffs filed an "Amended Petition" seeking to add five hundred new plaintiffs to the case. The trial court signed an order allowing them to become parties-plaintiffs in the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon.

Transport filed a peremptory exception of prescription on December 1, 2004, contending that the claims of the five hundred new plaintiffs had prescribed. On February 11, 2005, the trial court denied the exception of prescription. In the written reasons for judgment, the trial court stated that the earlier filed class actions interrupted prescription for the five hundred new plaintiffs.1 After these rulings, the parties agreed to bifurcate the issues of liability and damages, agreeing to first try only the issues of liability and general causation. In early December 2009, the trial court tried the limited issues of liability and general causation, at which eleven plaintiffs testified. In a March 12, 2010 judgment, the trial court relied on the Housley presumption2 and found that: "(1) Defendants were at fault in causing the August 7, 2002 chemical release; (2) Plaintiffs suffered damages as a result of defendants' fault; (3) the chemicals released were capable of causing, and did cause, damage to the plaintiffs; and (4) Defendants are liable for all proved damages caused by the August 7, 2002 chemical release." Based on the wording of the judgment, it appears that the trial court did not limit its findings to just general causation, as had been previously agreed to, but also ruled on specific causation for all plaintiffs, even though the vast majority of the plaintiffs did not testify at trial or submit any evidence to support their individual claims.

Transport filed a motion for new trial, which was denied. It then filed a timely petition for a devolutive appeal, which was granted. The plaintiffs sought to have the March 12, 2010 judgment designated as final pursuant to La. C.C.P. art. 1915, which motion was also granted.

Transport has assigned five errors for review:

PRESCRIPTION IN THE CONTEXT OF LA. C.C.P. ART. 596

The first issue we address is prescription, which encompasses the first three errors assigned above. Appellate courts review the peremptory exception of prescription using the manifestly erroneous standard of review. Boykins v. Boykins, 07-0542, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 181, 184. If a review of the entire record demonstrates that the trial court's factual findings were reasonable, the appellate court must affirm. Hammell v. GICILI, 07-0867, p. 2 (La.App. 4 Cir. 2/13/08), 978 So.2d 1022, 1024; Brumfield v. McElwee, 07-0548, p. 4 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 238.

Prescription statutes require strict construction in favor of upholding the obligation sought to be extinguished. Boykins, 07-0542, p. 4, 984 So.2d at 184. The burden of proving prescription remains with the mover. Brumfield, 07-0548, p. 4, 976 So.2d at 238. However, when the plaintiff's claim appears prescribed, the plaintiff must prove suspension or interruption of prescription. Hammell, 07-0867, p. 2, 978 So.2d at 1024.

In its written reasons for judgment, the trial court stated:

Transport argues that the trial court erred by failing to apply La. C.C.P. art. 596 to the issue of prescription; instead the court applied La. C.C. art. 3462, the earlier and more general statute. It argues that in this case, prescription was suspended and not interrupted. Transport contends that prescription began to run again on June 1, 2004, when the United States District Court entered the order denying class certification to the Fulford/Abram plaintiffs. Because the lawsuits were filed on the last day before prescription had run, all members had to be joined within the thirty-day window provided by subsection (3) of article 596. Thus, Transport argues that the claims of the five hundred plaintiffs added to the lawsuit on October 4, 2004 have prescribed.

Conversely, the plaintiffs assert that the thirty-day period began to run for putative class members on September 7, 2004, when notice was mailed to the putative class members and/or on September 19-24, 2004, when notice was published in the local newspaper. Therefore, they contend that the addition of the five hundred claimants on October 4, 2004, was timely.

A class action petition suspends prescription. Eastin v. Entergy Corp., 07-212, p. 12 (La.App. 5 Cir. 10/16/07), 971 So.2d 374, 381. Specifically, La. C.C.P. article 596 provides:

The trial court referred to an "interruption" based on La. C.C. art. 3463, rather than a suspension based on La. C.C.P. art. 596. However, the trial court relied on the correct statute (article 596), holding that the plaintiffs had thirty days from notice to join the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon.

In this case, the Fulford/Abram class actions were filed within one year of the incident, on August 7, 2003 and were removed to federal court. After the motion for class certification was denied on June 1, 2004, plaintiffs appealed this June 1, 2004 ruling, but were not successful. Plaintiffs, Ms. Smith, Mr. Porter, and Mr. Dixon, filed suit on June 8, 2004. However, the first notice to the putative class members of the denial of class certification, complying with La. C.C.P. art. 596(3), was on September 7, 2004 (when notice was mailed to the putative class members) and on September 19-24, 2004 (when notice was published in the New Orleans Times Picayune). Pursuant to La. C.C.P. art. 596, the liberative prescription that was suspended with the filing of the class action petition, commenced to run again thirty (30) days "after publication of notice" to the putative class members, or on October 7, 2004. See Taranto v. Louisiana Citizens Property Ins. Corp., 2010-0105 (La.3/15/11), 62 So.3d 721. After a hearing on Transport's exception of lis pendens, the trial court ruled on September 20, 2004, that the plaintiffs were allowed to proceed forward individually as plaintiffs in the matter and further stated:

The trial court's September 20, 2004 judgment allowed the plaintiffs to amend their pleading, naming additional plaintiffs before October 29, 2004; thus, the filing of the amended petition on October 4, 2004 was within the 30 days allowed by La. C.C.P. art. 596(3) and was also filed within the 30 days provided by the September 20, 2004 trial court judgment.

Transport cites to Smith v. Cutter Biological, 99-2068 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, for the proposition that the entry of an order by a federal judge provides sufficient notice to trigger the running of the suspended prescriptive period that denies class certification; however, as Transport correctly points out, this case was decided by applying the pre-1997 class action statutes, prior to the enactment of La. C.C.P. art. 596 and thus, does not take into effect La. C.C.P. art. 596(3) which requires "mailing or other delivery or publication of a notice to the class that the action has been dismissed ... or that the court has denied a motion to certify the class or has vacated a previous order certifying the class." Accordingly, we hereby affirm the district court's ruling, which denied Transport's exception of prescription.

THE "HOUSLEY" PRESUMPTION

We now turn to the trial court's application of the Housley presumption to create a presumption of causation. After hearing the testimony of eleven of the five hundred plaintiffs, the trial court applied a presumption of causation made applicable to negligence cases in Housley v. Cerise, 579 So.2d 973 (La.1991).3 In Housley, the Supreme Court stated:

Id. at 980.

The record is devoid of any medical evidence submitted by plaintiffs to show a "reasonable possibility of causal connection between the accident and [plaintiffs'] disabling condition." Because of this, we find Housley inapplicable to the case before us and remand this matter to the court below for further proceedings. In doing so, we reverse the trial court's determination of causation in favor of plaintiffs.

CONCLUSION

Based on the foregoing, we hereby affirm the denial of Transport's peremptory exception of prescription, we reverse the district court's determination of causation by applying the Housley presumption, and we remand the matter to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

TOBIAS, J., Concurs in part, dissents in part, and assigns reasons.

I respectfully concur in part and dissent in part from the decision of the majority.

I agree with the majority's analysis and conclusions relative to the trial court's reversible error when it applied the Housley presumption. I dissent from the majority conclusion that the five hundred new plaintiffs' claims are not prescribed; those five hundred plaintiffs' claims are in fact prescribed under existing law and jurisprudence. The peremptory exception of prescription must be maintained. See, Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

In their summation of the facts, I note that the majority omits the following pertinent facts.

First, after the police arrived and did not deem an evacuation necessary, other emergency responders reported to the scene; at no time did any emergency responders wear a respirator at the scene, even when standing on top of the tractor/trailer.

Second, the attorneys for Ms. Smith, Mr. Porter, and Mr. Dixon also represented the Fulford/Abram plaintiffs in federal court class action suit.

Third, when the trial court denied the exception of prescription and stated that the earlier filed class actions interrupted prescription for the five hundred new plaintiffs, supervisory writs were filed with this court and the Louisiana Supreme Court by Transport, both of which were denied. The majority fails to note the law respecting the effect of a denial of a writ application, to-wit: The denial of a writ application has no precedential value. State v. Davis, 09-0438, p. 19 (La.App. 4 Cir. 1/13/10), 30 So.3d 201, 211; Arceneaux v. Amstar Corp., 06-1592, p. 20 (La.App. 4 Cir. 13/07/07), 969 So.2d 755, 771; State v. Williams, 00-1725, p. 4 n. 3 (La.11/28/01), 800 So.2d 790, 795; St. Tammany Manor, Inc. v. Spartan Building Corp., 509 So.2d 424, 428 (La.1987); see also, Cavalier v. State ex rel. Dept. of Transp. and Development, 08-0561, p. 5 (La.App. 1 Cir. 9/12/08), 994 So.2d 635, 640 ("Application of the `law of the case' principle to decisions made on supervisory writs is discretionary. Therefore, any prior `determination' in a request for a supervisory writ is not necessarily binding on a subsequent appeal. Diamond B Const. Co., Inc. v. Department of Transp. and Development, 02-0573 (La.App. 1 Cir. 2/14/03), 845 So.2d 429, 434.")

Generally, the denial of supervisory writs does not bar a different conclusion or reconsideration of the same issue argued in the writ application when an appeal is taken from a final judgment. Levine v. First Nat. Bank of Commerce, 06-394 (La.12/15/06), 948 So.2d 1051, 1056 n. 4; East Baton Rouge Parish School Bd. v. Wilson, 08-0536 (La.App. 1 Cir. 6/6/08), 992 So.2d 537, 543; Diamond B Construction, 845 So.2d at 434. Likewise, where a prior disposition is clearly erroneous and will create a grave injustice, it should be reconsidered. Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert, denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997).")

Transport argues that the trial court erred by failing to apply La. C.C.P. art. 596 to the issue of prescription; instead the court applied La. C.C. art. 3462, the earlier and more general statute. It also argues that in this case, prescription was suspended and not interrupted. Thus, the addition of the approximate five hundred plaintiffs was untimely.

In LeBreton v. Rabito, 97-2221, pp. 5-6 (La.7/8/98), 714 So.2d 1226, 1228-29, the Supreme Court distinguished interruption from suspension:

Article 596 suspends prescription; prescription is not interrupted. In the instant case, the Fulford/Abram lawsuits were filed on 7 August 2003, exactly one year from the date of the accident. Article 596 provides:

The trial court below referred to an "interruption" based on La. C.C. art. 3463, rather than a suspension based on La. C.C.P. art. 596. However, it appears that the trial court relied in part on the correct statute (article 596), holding that the plaintiffs had thirty days from notice to join the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon.

Transport contends that prescription began to run again on 1 June 2004, when the United States District Court entered the order denying class certification to the Fulford/Abram plaintiffs. Because the lawsuits were filed on the last day before prescription had run, all members had to be joined within the thirty-day Window provided by subsection (3) of article 596. Thus, Transport argues that the claims of the five hundred plaintiffs added to the lawsuit on 4 October 2004 have prescribed.

Conversely, the plaintiffs assert that the thirty-day period began to run for putative class members on 7 September 2004, when notice was mailed to the putative class members and/or on 19-24 September 2004, when notice was published in the local newspaper. Therefore, they contend that the addition of the five hundred claimants on 4 October 2004 was timely.

The real issue then is what type of notice is required as it is "notice" that begins the running of the thirty days.

Interestingly, article 596 makes no reference to actual notice or to the method that should be employed to give notice. In contrast, numerous statutes requiring notice are quite specific, for example:

Quite clearly, if the legislature required actual notice and/or publication in the local newspaper as the only sufficient means by which to satisfy the notice requirement in La. C.C.P. art. 596(3), it would have so stated. It did not. And legislators are presumed to know the law. State ex rel. Varnado v. Louisiana Highway Commission, 177 La. 1, 7, 147 So. 361, 362 (La. 1933); Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La.5/20/97), 694 So.2d 184, 186.

The plaintiffs argue that notice did not occur, at the earliest, until their attorneys sent notice to some of the putative class in early September 2004 or, at the latest, when a notice was published by the local paper later in the month. However, under this theory, if notice by mail or publication never occurs, prescription could remain suspended indefinitely. This flies in the face of the purpose for prescriptive statutes.

An exception of prescription is intended to promote the avoidance of stale claims and the resultant loss or non-preservation of relevant evidence. In Demma v. Automobile Club Inter-Insurance Exchange, 08-2810, p. 13, n. 9 (La.6/26/09), 15 So.3d 95, 104, the Supreme Court stated that prescription statutes are also intended to protect defendants from the lack of notification of a formal claim within the prescriptive period. Taylor v. Babin, 08-2063, p. 13 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, 642. "The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and the loss or non-preservation of relevant proof." Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268.1

While I agree that the thirty-day period began to run once "notice" was given (a "federal district court sitting in diversity is bound to apply state law when calculating the `commencement' date for purposes of the statute of limitations." Glaze v. Ahmad, 954 F.Supp. 137, 139 (W.D.La.1996)), I find that the notice provisions of La. C.C.P. art. 596(3) do not apply here. In other words, an examination of what constitutes article 596(3) notice is of no moment.

In a diversity case, a federal court must apply the substantive law of the state while following federal procedural rules. This principle applies equally when the case is originally filed in federal court or is later removed to federal court. Fed. R. Civ. Pro. 81(c) instructs the courts that the Federal Rules of Civil Procedure "apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal" [emphasis supplied].

The Supreme Court's first landmark decision and seminal case concerning when to apply federal or state law came in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Erie Court overruled its previous doctrine in Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842) that interpreted the Rules of Decision Act 1 Stat. 92 (1789) (current version at 28 U.S.C.A. § 1652 (1948)) as requiring a federal court faced with a choice of federal or state law in a diversity case to apply the rules and enactments promulgated by the state legislative authority instead of federal law. State decisional law would not govern in a federal diversity case under the Swift doctrine. Patricia M. Noonan, Note, State Personal Jurisdictional Requirements and the Non-Aggression Rule in Class Action, 1987 U. Ill. L.Rev. 445, 466 (1987) (hereinafter "Noonan"). The Erie Court declared that no federal general common law exists. Erie, 304 U.S. at 78, 58 S.Ct. 817. Thus, except in matters governed by the federal Constitution or by acts of Congress, Erie mandates that the court apply the law of the state. Id.; Noonan, supra, at 466.

The Erie decision, together with the Rules Enabling Act, which authorized the Supreme Court to draft and promulgate procedural rules for the federal courts, seemed to indicate that a federal court in a diversity case should apply the substantive law of the state in which it was located and the procedural law that the federal law prescribed. J. Friedenthal, M. Kane, A. Miller, Civil Procedure § 4.4 (1985) (hereinafter "Friedenthal"). The Supreme Court later rejected the substance versus procedural approach in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Instead, an outcome-determination analysis was applied: state law governs when applying federal law would significantly affect the result of the litigation. Id. at 109, 65 S.Ct. 1464; Noonan, supra, at 466. Subsequent Supreme Court decisions, such as Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949), and Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), followed York even though some argued that requiring federal courts to apply state law encroached on federal interests. Id. These decisions prompted concern over the viability of the federal rules in diversity actions. Byrd v. Blue Ridge Rural Electronic Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) allayed this fear somewhat by suggesting that federal courts should no longer apply the outcome-determination test where significant federal policies need to be protected. Friedenthal, supra, § 4.4. This test proved confusing, however, because the significance of state and federal policies was difficult to measure. Id.; Noonan, supra, at 466

Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) conclusively established the Federal Rules' viability by creating a presumption in favor of the federal rules. Noonan, supra, at 466; Friedenthal, supra, § 4.4. The Hanna Court arrived at its decision by separating, for purposes of analysis, the Rules of Decision Act, the Enabling Act, and the constitutional demands to which the Erie opinion had alluded. Ely, The Irrepressible Myth of Erie, 87 Harv. L.Rev. 693, 699 (1974). Where a federal rule is at issue, the Court held that the Rules Enabling Act, and not the Rules of Decision Act, controls whether federal or state law should apply. Ely, supra, at 718; Noonan, supra, at 466. Only where no federal rule directly governs the disputed matter, or when a court may apply both state and federal rules concurrently, do the Erie-York analysis and the Rules of Decision Act apply. Hanna, 380 U.S. at 466-67, 85 S.Ct. 1136. When a federal rule is involved, the Hanna Court followed the test outlined in Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 52 L.Ed. 479 (1941): the court must follow the federal rule and can refuse to do so only if the Advisory Committee, the Supreme Court, and Congress erred in their prima facie judgment that the rule transgresses neither the terms of the Enabling Act nor constitutional restrictions. Id. at 13-15, 61 S.Ct. 422. In other words, the federal rules are presumed to be a valid exercise of the Court's authority to promulgate procedural rules for the federal courts. Noonan, supra, at 467. The Constitution in Erie contexts is treated no differently than its function in other areas of federal power. Ely, supra, at 706. The Constitution gives the national legislature wide discretion to carry out powers granted to it by the Constitution. Accordingly, the Court will find matters falling within the uncertain area between substance and procedure, if rationally capable of classification as either, to be within the congressional power to make rules governing the practice and pleading in the federal courts. Hanna, 380 U.S. at 472, 85 S.Ct. 1136; Noonan, supra, at 467.

Courts have considered the propriety of a class action under Rule 23 to be a question of procedural law. Noonan, supra, at 467. A procedural rule is designed to make the process of litigation a fair and efficient mechanism for the resolution of disputes. Id.; Ely, supra, at 724. Even under Louisiana law, a class action is a procedural tool wherein substantive facts are not considered when deciding the issue of certification. Pollard v. Alpha Technical, 08-1486, p. 15 (La.App. 4 Cir. 1/28/10), 31 So.3d 576, 582; Andry v. Murphy Oil, U.S.A., Inc., 97-0793 to 97-0800, pp. 2-3 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129. See also Thomas v. Mobil Oil Corp., 08-0541, p. 18 (La.App. 4 Cir. 3/31/09), 14 So.3d 7, 18-19.

Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 6 (La.5/9/97), 694 So.2d 180, 183. Substantive laws either establish new rules, rights, and duties or change existing ones. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992).

Rule 23 of the Federal Rules of Civil Procedure was applied by the federal district court when determining whether the Fulford/Abram plaintiffs met the requirements of class certification. Thus, I look to Rule 23 and federal case law to determine what constitutes sufficient notice when class certification is denied. See e.g., Foradori v. Harris, 523 F.3d 477, 486 (5th Cir.2008).

Rule 23 requires a district court to give notice to absent class members of developments in the suit in only two situations. The first is when the court certifies a class under Rule 23(b)(3) because common issues of law or fact predominate over other aspects of the suit and render a class action the appropriate vehicle to resolve claims. The second is when a class action is to be dismissed or compromised. See Fed.R.Civ.P. 23(e); Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 812, cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982).

However, clearly-established federal jurisprudence holds that no requirement exists to notify putative class members of the denial of class certification. In Rineheart v. Ciba-Geigy Corp., 190 F.R.D. 197 (M.D.La.1999), the court performed a thorough analysis of Fifth Circuit precedent to conclude that "no notice of a dismissal or settlement to asserted class members is required if there has been a judicial denial of class certification." Id. at 200, citing Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir.1975) ("Hence, where a court has ruled under Rule 23(c)(1) that an action cannot properly be maintained as a class action the notice requirements of Rule 23(e) do not apply, at least where the dismissal and settlement of the action do not directly affect adversely the rights of individuals not before the court."). A federal district court for the Eastern District of Louisiana specifically adopted the reasoning of Rineheart in denying a request for notice after the denial of class certification. Street v. Diamond Offshore Drilling, Civ. A. No. 00-1317, 2001 WL 883216, at *1 (E.D.La. July 30, 2001). See also Hervey v. City of Little Rock, 787 F.2d 1223, 1230 (8th Cir.1986) ("Finally, we note that notice of the decertification is required only to the extent necessary to reach those potential class members who received notice of certification and relied on being included in the class. [Emphasis added.]").

This court also addressed this issue. In Smith v. Cutter Biological, 99-2068, p. 30 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, 409, we stated:

In summary, when a class action based upon a Louisiana cause of action is tried in federal court, Louisiana substance law applies to issues involving the plaintiffs' cause of action (in the case at bar, the plaintiffs' claim for damages and the applicable prescriptive statutes). Federal procedural law applies to issues involving how proceedings are handled in the federal court. That is, a federal court applies the Federal Rules of Civil Procedure to pre-trial, trial, and post-trial procedures. In the case at bar, La. C.C.P. art. 596 contains both substance and procedural parts. Reproduced below are relevant parts of article 596; the substantive portions of article 596 are italicized and the procedural portions are boldfaced:

The fact that the giving of notice is a procedural matter is well-settled. In Organization of United Taxpayers and Civic Associations of Southeast Baton Rouge, Inc. v. The Louisiana Housing Finance Agency, 96-2406, p. 6 (La.App. 1 Cir. 11/7/97), 703 So.2d 107, 112, the court stated:

In Swann v. Performance Contractors, Ltd., 271 So.2d 294, 296 (La.App. 3rd Cir. 1973), while the court was discussing personal jurisdiction, it stated:

In Michael H. Rubin and Stephen P. Strohchein, Security Devises, 55 La. L.Rev. 611, 651 (2005), the authors stated:

In John O. McGinnis, The Bar Against Challenges To Employment Discrimination Consent Decrees: A Public Choice Perspective, 54 La. L.Rev. 1507, 1522 (1994), the author stated:

In Naquin v. Titan Indemnity Co., 2000-1585, pp. 4-5 (La.2/2/01), 779 So.2d 704, 708, the Court was discussing service of process but the comments are equally applicable to the notice provision in La. C.C.P. art. 596:

Likewise, reliance on actual notice by the attorneys or publication in a local newspaper of the denial of class certification is unreasonable: it could take months for either or both of these events to occur, as they did in this case.2 The plaintiffs have not pointed out any way that putative class members relied on any action of the federal district court, such as a denial of certification, which would prompt the need for notice.

The plaintiffs argue that the federal district court neither ordered that notice be given nor did Transport request that the court issue formal notice to the putative class members. However, based on Rule 23, no such notice is required and, under federal jurisprudence, such a request by either side may not have been granted. The United States Fifth Circuit Court of Appeals in In re Katrina Canal Breaches Litigation, 2010 WL 4561378 (5th Cir. 2010), affirmed the district court's denial of the plaintiffs request to order the defendants to give notice of the denial of the class certification, stating:

Finally, Plaintiffs argue that the district court erroneously denied their request to order Defendants to notify individual policyholders of the district court's decision and the existence of their individual rights. They contend that the court was empowered to order such notice by Fed.R.Civ.P. 23(d)(1)(B). Even assuming that the district court had the power to issue such an order, which we do not decide, there is nothing that requires the court to order notice of the denial of class certification, and we find no abuse of discretion in the court's refusal to do so. See, e.g., Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir.1975) ("[W]here a court has ruled under Rule 23(c)(1) that an action cannot properly be maintained as a class action the notice requirements of Rule 23(e) do not apply...."); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974) ("The usual rule is that a plaintiff must initially bear the cost of notice to the class.").

Id. at *2 (emphasis supplied). See also, Street, supra.3

Finally, I find that the putative class members received notice of the federal court's denial of class certification when the attorneys for the Fulford/Abram lawsuit received notice. Knowledge to the lawyer is knowledge to the lawyer's client. One cannot know when the lawyers began to represent each of the five hundred plaintiffs added in October 2004. However, the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon was filed on 8 June 2004, one week after the federal court judgment was entered into the record. These lawyers were already representing a number of the claimants in the consolidated federal cases and knew that the probability of additional claimants was very high. The moment a lawyer began representing a claimant, the lawyer's knowledge of the federal court's 1 June 2004 judgment refusing to certify the class is imputed to his client.

In Smart Document Solutions, LLC v. Miller, 07-670 (La.App. 3 Cir. 10/31/07), 970 So.2d 49, the court examined the relationship between an attorney and his client. It was most impressed by the analysis and conclusion from the North Dakota Supreme Court:

The rationale for this rule was perhaps best stated in Judd & Detweiler v. Gittings, 43 App. D.C. at 310-311:

Id. at pp. 4-5, 970 So.2d at 51-52. I agree with the analysis above. The lawyers in the instant matter were in control of the litigation. They filed a timely suit on behalf of three claimants, yet chose to apparently "withhold" notice from the putative class members until early September 2004. Presumably, this gave them four months to enter into contracts of representation with the five hundred additional plaintiffs before adding them to the current proceedings. They now want to control the commencement of the thirty days afforded by La. C.C.P. 596(3) by sending notice when they were ready to do so, rather when the thirty days began under the law.

Therefore, I adhere to Cutter and the caselaw cited above and find that the putative class members had thirty days or until 1 July 2004 to file their individual claims.

Only Tenesha Smith, Melvin Porter, and Wallace Dixon filed timely claims. However, the plaintiffs additionally contend that the amended petition filed on 4 October 2004 relates back to the filing of the petition by Ms. Smith, Mr. Porter, and Mr. Dixon on 8 June 2004. I disagree.

La. C.C.P. art. 1153 states:

In Giroir v. South La. Med. Ctr., Div. of Hospitals, 475 So.2d 1040 (La.1985), the Supreme Court examined the jurisprudence applying Federal Rule of Civil Procedure 15(c), upon which La. C.C.P. art. 1153 is based, and concluded that "[a]lthough the [federal] Rule refers to `an amendment changing the party' it has properly been held to sanction relation back of amendments which add or drop parties, as well as those substituting new parties for those earlier joined." 475 So.2d at 1043 (collecting authorities). While acknowledging the "less difficult" legal analysis for the relation back of amendments involving a change of capacity, the court nonetheless set forth factors to consider for the relation back of an amendment adding or changing plaintiffs. Id. at 1044. Relying on Ray v. Alexandria Mall, 434 So.2d 1083 (La. 1983), regarding amended petitions adding or substituting defendants, the Court set forth these factors in Giroir: "[a]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and (4) the defendant will not be prejudiced in preparing and conducting his defense." Giroir, 475 So.2d at 1044.

Giroir has since been applied in various situations in the courts of appeal, with some courts finding that the added claims of a new plaintiff did relate back to the filing of the original petition and other courts finding to the contrary. However, the Supreme Court has pointed out that the enumerated Giroir factors are guidelines to be considered under the totality of the circumstances before an amendment adding a new plaintiff will be deemed to relate back pursuant to La. C.C.P. art. 1153. Warren v. Louisiana Medical Mut. Ins. Co., 07-0492, pp. 4-6 (La.12/2/08), 21 So.3d 186, 189-90.

Applying the Giroir factors to the instant matter, I find that the amended petition of 4 October 2004 does not relate back to the original timely-filed petition. While arguably two of the four criteria are met, the new and old plaintiffs are totally unrelated. Further, under Rule 23, Transport was entitled to rely on the 1 July 2004 deadline established in La. C.C.P. art 596(3) and make the logical assumption that it was defending the state court action against only three plaintiffs, not five hundred three plaintiffs.

And finally, the majority's reliance on Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La.3/15/11), 62 So.3d 721, in any respect is misplaced. Taranto stands for the proposition that the filing of a lawsuit designated as a class action against an insurer suspends prescription until district court ruled on motion to certify the class. The entirety of Taranto involves decisions of Louisiana state courts and addresses the legislature's extension of the prescriptive periods arising from damages due to Hurricane Katrina. Unlike the case at bar, the question of notice to class members was not at issue at all and, concomitantly, the issue of whether notice was required to be given to the putative class members when a federal court determines that no class exists is not discussed and is not an issue. More precisely, the Court held that:

Id., p. 1, 62 So.3d at 724. An attempt to expand the Taranto decision to the case at bar does not comport with appropriate jurisprudential interpretation; the facts are materially different.

Thus, the amended petition must be dismissed with prejudice.