Lead Opinion
_JjWe granted certiorari in these consolidated cases to resolve an issue of first
After reviewing the relevant statutory provisions, we find, contrary to the conclusions of the lower courts, that because plaintiffs are members of a class asserted in a class action petition, they are entitled to the benefits of the suspension of prescription provided under La. C.C.P. art. 596, notwithstanding that they also filed individual actions prior to a resolution of the class certification issue. As a result, we reverse the judgments of the lower courts sustaining exceptions of prescription to the petitions of the plaintiffs and remand these matters to the respective district courts for further proceedings.
FACTS AND PROCEDURAL HISTORY
The instant application arises out of two cases, filed in different district courts, which were consolidated in the court of appeal.
Duckworth v. Louisiana Farm Bureau Mutual Ins. Co.
The first case, Helen Duckworth v. Louisiana Farm Bureau Mutual Insurance Company, was filed in the 34th Judicial District Court for the Parish of St. Bernard. In that case, Ms. Duckworth alleges she is the owner of immovable property located in Arabi, Louisiana, which, on August 29, 2005, the date Hurricane Katrina struck the state of Louisiana, was covered by a policy of homeowner’s insurance underwritten by Louisiana Farm Bureau Mutual Insurance Company (“Farm Bureau”). The petition alleges the property suffered damages as a result of the hurricane for which Farm Bureau failed to provide adequate compensation. Ms. Duckworth seeks damages and the assessment of bad faith penalties. The petition, filed on December 30, 2008, additionally alleges that prescription on the asserted claims was interrupted pursuant to La. C.C. art. 3463 with the August 29, 2007 filing of a mass joinder complaint in federal district court, Acevedo, et al. v. AAA Insurance, et al., no. 07-5199, on the docket of the United States District Court for the Eastern District of Louisiana. Ms. Duckworth was a named plaintiff in that litigation.
On February 8, 2011, Farm Bureau filed a pleading entitled “Peremptory Exceptions of Prescription and/or Peremption and No Right of Action and Answer and Affirmative ■ Defenses.” In that pleading, Farm Bureau argued that because Ms. Duckworth’s initial claim was filed in a court of incompetent jurisdiction — the federal court, which lacked diversity jurisdiction because Farm Bureau is a Louisiana corporation — prescription was not interrupted and the December 30, 2008 petition was, therefore, untimely.
Ms. Duckworth responded by acknowledging the federal filing was in a court of incompetent jurisdiction and, therefore, could not serve to interrupt prescription on her claims. However, she argued her claims were nonetheless timely because the applicable prescriptive period was sus
Following that hearing, on April 8, 2011, the district court sustained Farm Bureau’s exception of prescription and dismissed Ms. Duckworth’s suit with prejudice. The district court reasoned that by filing the federal complaint, Ms. |4Puckworth “opted out” of the class action and,, therefore, could not claim the benefit of the suspension of prescription provided for in La. C.C.P. art. 596. Ms. Duckworth appealed.
Smith v. Louisiana Farm Bureau Mutual Ins. Co.
In a petition filed on December 30, 2008, in the Civil District Court for the Parish of Orleans, Tony Smith alleges that he is the owner of immovable property located in New Orleans, Louisiana, which, on the date Hurricane Katrina struck the city, was also covered by a policy of insurance underwritten by Farm Bureau. Like Ms. Duckworth, Mr. Smith alleges his property sustained damages in the hurricane for which Farm Bureau failed to provide adequate compensation. The petition, also seeking damages and bad faith penalties, likewise alleges that prescription was interrupted by the filing of the Acevedo mass joinder complaint in which Mr. Smith was a named plaintiff.
On March 1, 2011, Farm Bureau filed identical exceptions, an answer, and affirmative defenses to those filed in the Duck-worth proceeding, asserting essentially the same arguments. Mr. Smith responded by acknowledging, as did Ms. Duckworth, that the federal filing was in a court of incompetent jurisdiction and, therefore, did not interrupt prescription. Following Ms. Duckworth’s lead, Mr. Smith argued his claims were nevertheless timely because prescription was suspended pursuant to La. C.C.P. art. 596 by the filing of two class action proceedings in which he was a putative class member — Vinturella, and State of Louisiana, et al. v. AAA Insurance, et al., no. 07-8970, on the docket of the Civil District Court for the Parish of Orleans (the “Road, \ -Home ” litigation).
Following a hearing on May 13, 2011, the district court granted Farm Bureau’s exception of prescription. In written reasons, the court concluded that because Mr. Smith filed the instant litigation prior to a decision on class certification in either of two class action proceedings on which he relied to suspend prescription, he “opted out” of both classes. In making this determination, the district court cited to, and relied primarily on, the case of Lester v. Exxon Mobil Corp.,
Proceedings in the Court of Appeal
Because the cases are factually similar and the issue to be decided is the same, the Duckworth and Smith appeals were consolidated in the court of appeal.
| ^Following briefing and argument, the court of appeal affirmed the judgments of both lower courts. Duckworth v. Louisiana Farm Bureau Mutual Insurance Co.,
[Fjederal district court cases from various jurisdictions ... hold that a plaintiff who files an independent action before a determination on class certification has been made cannot benefit from the tolling of prescription applicable to putative class members under federal law. The underlying rationale for this rule, which is that the plaintiff has effectively “opted out” of the class action by filing his own suit, seems to apply to the instant situation as well.
Duckworth, 11-0837 at 4-5,
|7We granted certiorari to review the correctness of the court of appeal’s ruling. Duckworth v. Louisiana Farm Bureau Mutual Ins. Co., 11-2835 (La.3/30/12),
LAW AND ANALYSIS
The issue presented for our resolution can be simply stated: Does a plaintiff who is a putative class member, but who elects to file a separate suit prior to a resolution of the class certification issue, effectively “opt out” of the class action and forfeit the benefit of the suspension of prescription resulting from the filing of the class action?
While the issue is one of first impression in this court, it has been the subject of examination in the appellate courts. The Fourth Circuit first touched upon the issue in Katz, supra. In Katz, the plaintiff filed suit against his homeowner’s insurer, Allstate, for damages sustained by the insured property in a January 23, 2000 hailstorm. Id., 04-1133 at 1,
Allstate submits that Mr. Katz elected to file his individual lawsuit and failed to do so timely. Moreover, Allstate argues that Mr. Katz should not be allowed to revive his prescribed action by claiming the benefit of |8a class action in which he never intended to participate. Allstate further maintains that Mr. Katz’s reliance on La. C.C.P. art. 596 is misplaced because the article makes no reference to limitations periods imposed as a matter of contract between a defendant and a putative class member. We conclude that the filing of the class action did not alter the contractual prescriptive period that this court has heretofore held to be valid and that this argument is without merit.
Katz, 04-1133 at 7,
Allstate argues that the reference to “liberative prescription” in La. C.C.P. article 596 means that the suspension granted under that article does not ap,ply to contractual prescription periods such as the one at issue herein. In addition, Allstate cites federal district court cases from various jurisdictions which hold that a plaintiff who files an independent action before a determination on class certification has been made cannot benefit from the tolling of prescription applicable to putative class members under federal law. The underlying rationale for this rule, which is that the plaintiff has effectively “opted out” of the class action by filing his own suit, seems to apply to the instant situation as well.
Id., 04-1133 at 1,
The majority’s precise holding in Katz— that the filing of the class action lawsuit did not alter the contractual prescriptive period set forth in the insurance contract — was subsequently repudiated by this court in Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La.3/15/11),
Citizens filed an, exception of prescription, which was sustained by the district court. Id. The court of appeal reversed that judgment, concluding that pursuant to La. C.C.P. art. 596, prescription on plaintiffs’ claim was suspended by the timely filing of a class action lawsuit against Citizens in which the plaintiffs were putative class members. Taranto v. Louisiana Citizens Property Ins. Corp.,
Before this court, Citizens argued that La. C.C.P. art. 596 does not apply to “contractual limitations” periods like those in its policy; rather, it applies only to “libera-tive prescription,” ie., prescriptive periods fixed by law or established by legislation. Taranto, 10-0105 at 9,
In reaching its conclusion, this court in Taranto discussed the Katz decision, but, in ultimately rejecting Katz’s precise holding, was not called upon to adjudicate that portion of the decision “expanded upon” in Judge Murray’s concurrence: whether a plaintiff who files an -independent action before a determinátion on class certification has been made effectively “opts out” of the class and forfeits the benefit of La. C.C.P. art. 596’s suspension of prescription. This is because the plaintiffs in Tar-anto filed their independent suit after the class certification issue had been resolved and, thus, the precise factual scenario presented in Katz was not present in Taran-to.
While the factual scenario presented in Katz was not present in Taranto, it did present itself in another case, Lester, supra. The underlying facts of Lester, while somewhat complex, can be summarized rather simply. In 2002; a class action proceeding titled In re Harvey Term Litigation was filed in Civil District Court for the Parish of Orleans. Lester, 09-1105 at 3,
In reviewing the district court judgment sustaining the exception of prescription, the court of appeal framed the issue before it as follows: “whether the plaintiffs effectively opted out of the class action by the filing of the petition for damages prior to the court ruling on class certification.” Lester, 09-1105 at 4,
In the instant case, the court of appeal relied exclusively upon Lester, the concurrence in Katz, and a decision out of the federal district court, Dixey, to find suspension did not occur and the plaintiffs’ actions prescribed. Duckworth, 11-0837 at 4,
| i2In Louisiana, as in other civil law jurisdictions, legislation is superior to any other source of law, See, La. C.C. art. 1; Doerr v. Mobil Oil Corp., 00-0947, p. 13 (La.12/19/00),
The judiciary’s role in the civil law, first and foremost, is not to legislate from the bench, but to interpret the legislative will and apply statutory pronouncements to specific cases. Albert Tate, Jr., Techniques of Judicial Interpretation in Louisiana, 22 La.L.Rev. 727, 728 (1962) (“The Louisiana judge must, as stated, find primarily in legislative enactments the legal principles to be applied in deciding the case before him.”). Interpretation of the legislative will is accomplished through the rules of statutory construction. Pursuant to these rules, the interpretation of a legislative enactment begins with the language of the law itself. In re Succession of Faget, 10-0188, p. 8 (La.11/30/10),
Louisiana Code of Civil Procedure art. 596 provides, in relevant part:
A. Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
| u(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.
As we have previously explained, La. C.C.P. art. 596 is a special provision, the purpose of which is to prevent prescription from accruing against the claims of members of a putative class action until such point as the propriety of the class action or the member’s participation in the class action is determined. Taranto, 10-0105 at 11,
Therefore, according to the plain language of La. C.C.P. art. 596, a petition brought on behalf of a class suspends prescription as to “all members” of the class “as described or defined therein.” This suspension continues until thirty days after one of three events occurs: (1) a person elects to be excluded from the class by
Beginning with the concurrence in Katz, continuing through Lester, and culminating in the present case, the appellate courts have drawn from federal jurisprudence to essentially engraft onto the codal provision a fourth trigger: the filing of an individual lawsuit prior to a ruling on the class certification issue. However, after examining the language of La. C.C.P. art. 596, in conjunction with the body of articles on class action procedure and the purpose behind prescriptive statutes, we find that the creation of such a jurisprudential exception is unwarranted for several reasons.
First, by adding an exception to La. C.C.P. art. 596’s suspension provisions, the decision of the appellate courts violates the basic rule that prescription statutes are to be strictly construed against prescription and in favor of the claim sought to be extinguished. Taranto, 10-0105, at 5,
Second, the importation of a jurisprudential exception fails to honor and adhere to the express language of the code article. The first paragraph of La. C.C.P. art. 596 states that “[ljiberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members ' of the class as defined or described therein.” La. C.C.P. art. 596 (emphasis added). Consistent with the plain wording of this provision, the only requirement for obtaining the benefit of the article’s suspension of prescription is that one fall within the definition or description of a putative class member. Unless the class is specifically defined or described to exclude those who file individual suits, the fact that an individual lawsuit may or may not have been filed |16is simply not relevant to the determination of whether a person falls within the definition or description of a putative class member.
Further, the language of the article clearly indicates that prescription, once suspended, does not recommence until the propriety of the class action or the member’s participation in the action is judicially determined — either by a judgment certifying the class (and the timely submission of an election form), by a judgment restricting or redefining the membership of the class, or by a judgment dismissing the class action, striking the demand for class relief or denying certification — and until the requisite notice is issued. See La. C.C.P. art. 596(2) and (3); La. C.C.P. art. 592(B). A finding that the filing of an independent lawsuit prior to such a judicial determination, and in the absence of the required notice, “forfeits” the benefit of suspension under La. C.C.P. art. 596 is, thus, inconsistent with the article’s temporal requirement.
The Katz/Lester line of cases and the decision of the court of appeal in this case are, at their core, premised on the assumption that filing an individual lawsuit is equivalent to “opting out of’ or electing to be excluded from a class. This is not an entirely unreasonable assumption and in fact, some authority for the proposition
Id. at 138. The defendant in this case seizes upon this language as controlling on the issue of whether the filing of an individual suit is the equivalent of “opting out of’ or electing to be excluded from a class.
However, Williams was decided in 1977, prior to the comprehensive revision of the class action procedure articles in 1997. Whatever effect the filing of an individual suit may have had prior to the revisions, a review of the class action articles after the 1997 revision indicates that the filing of an individual action is not a method contemplated by the legislature for exclusion from a class or for “forfeiting” the suspension of prescription provided in La. C.C.P. art. 596.
Under the 1997 revisions, four types of class actions are potentially available in Louisiana. See La. C.C.P. art. 591(B)(1-4). The law does not provide any mechanism for members of one of the first two types of class actions to “opt out.” La. C.C.P. art. 591(B)(1) or (2).
Thus, with the 1997 revisions to the Code of Civil Procedure articles on class actions, the legislature enacted a comprehensive scheme providing for notice of the pendency of class actions and the opportunity to exercise an option to be excluded from the class. Unlike its federal counterpart, Fed. Rule Civ. Proc. 23, in which there is no set procedure or form for requesting exclusion,
It is also inconsistent with its spirit. By definition, liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. As we have explained: “The fundamental purpose of prescription statutes is to afford a defendant economic and psychological security if no claim is made timely and to protect the defendant from stale claims and from the loss or non-preservation of relevant proof.” Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 9 (La.11/29/05),
Rather than protect defendants from stale claims, the interpretation of La. C.C.P. art. 596 advanced by the lower courts actually encourages inaction on the part of plaintiffs in pursuing their claims, a result which subverts the very purposes of liberative prescription and fosters, rather than deters, the filing of stale claims. The rules of statutory interpretation do not permit us to condone a construction of La. C.C.P. art. 596 which produces a result so at odds with the plain wording and the obvious intent and purpose of the law as a prescription statute. See Credit v. Richland Parish School Bd., 11-1003 (La.3/13/12),
Citing Lester and Taranto, defendant nevertheless posits that La. C.C.P. art. 596 is a codification of the tolling rule first introduced to the federal class action in American Pipe & Constr. Co. v. Utah,
While defendant’s position has some superficial appeal,
Furthermore, and contrary to defendant’s contention, the purpose of Louisiana’s rule suspending prescription until such time as the propriety of the class action or the member’s participation in the class action is determined is not solely to avoid a multiplicity of lawsuits. Louisiana’s current rules clearly contemplate the possibility of a multiplicity of individual suits because plaintiffs (at least insofar as those who are members of La. C.C.P. art. 591(B)(3) classes are concerned) are allowed to submit election forms requesting exclusion from the class. Indeed, the existence of multiple lawsuits is not an interest that prescription statutes, such as La. C.C.P. art. 596 are typically designed to protect, although in this instance, it might be an incidental benefit of the rule. It is not even clear that the construction of La. C.C.P. art. 596 that defendants would have this court adopt would promote the goal of avoiding multiple lawsuits because the rule, which would require putative class members to await a determination on class certification in order to avail themselves of the benefits of the suspension of prescription, would conceivably only affect when an individual suit is filed — not whether it is filed.
Finally, drawing from language in Wilkienson v. Louisiana Farm Bureau Mut. Ins. Co.,
Ultimately, the Katz/Lester line of cases and the arguments advanced by defendant in support thereof are based on a line of cases from the federal courts. While we find the answer to the inquiry posed in this case is properly found in the provisions of Louisiana law and, more particularly, in the language of La. C.C.P. art. 596 itself, we note, parenthetically, that the federal courts themselves are split on the issue of whether class action tolling applies to all members of a putative class, regardless of whether a ruling on certification has been made. While earlier cases, notably those from the First and Sixth Circuit Courts of Appeals,
After examining the reasoning and logic of the federal court cases in light of the express provisions of Louisiana’s tolling statute — La. C.C.P. art. 596 — we find that the view most consistent with the letter and spirit of Louisiana statutory law is that which extends the benefits of tolling to those who file individual suits prior to the resolution of the class certification issue.
While it might be a good idea to have a rule that prohibits individual cases until after class certification is resolved, no such rule exists today. The current Federal Rules of Civil Procedure permit a multiplicity of suits in different jurisdictions after a class is certified because members of the class are permitted to “opt out.” See Rule 23(c). Nor is there anything in the Federal Rules of Civil Procedure that prohibits individual lawsuits being filed in multiple jurisdictions prior to a ruling on a pending motion for class certification. Rule 23 is an efficient way to handle multiple parties, but it is clearly designed to accommodate individual choice as well. While it might be argued that individual choice is not a good idea in this context, such an argument would justify a new rule. It would not justify ignoring the structure of the current rule, and a clear directive from the United States Supreme Court. Finally, it would be ironic to say that [plaintiff] has filed his case too soon and, therefore/it must be dismissed because the statute of limitation is violated. It would turn the purpose of the statute of limitations on its head to say that [plaintiff] must wait until the dispute is more stale before he can file his individual case.
Lehman,
In sum, we find that, interpreted and applied according to its express terms, La. C.C.P. art. 596 provides for the suspension of liberative prescription “on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class ... as to all members of the class as defined or described therein,” until such time as those individuals cease to be members of the class. The article also provides a list of discrete, specific, and clear triggering events delineating when class membership ceases for prescription purposes. The fil
Applying La. C.C.P. art. 596 in the manner that we do today is not only consistent with the dictates of the language of the article and our civilian mandate, but it promotes certainty and predictability in the administration of the law and at the same time does not unduly burden a defendant with stale claims. As to the complaint that our holding will unfairly subject defendants to multiple filings, there are avenues available to a defendant to ameliorate the inconvenience or burden of de-fendingj^multiple actions that do not undermine the letter and the spirit of the law.
Having determined that the lower courts committed legal error in holding that the plaintiffs’ filing of individual lawsuits before resolution of the class certification issue in the class actions in which they were putative members forfeited their entitlement to rely on the suspension provisions of La. C.C.P. art. 596, we must next examine whether, applying the correct rule of law, plaintiffs claims are prescribed.
Generally, the party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face, in which case the burden shifts to the plaintiff. Cichirillo, 04-2894, 04-2918 at 5,
In this case, the petitions of both Ms. Duckworth and Mr. Smith affirmatively allege that prescription on the asserted claims was “interrupted pursuant to Louisiana Civil Code Article 3463 with the filing in the United States District Court for the Eastern District of Louisiana on August 29, 2007, the case of Acevedo, et al. v. AAA Insurance, et al., Docket No. 07-5199.”
At the subsequent hearing on the exception of prescription, the district court in the Duckworth case took judicial notice of the Vinturella pleadings.
| ¡^Although this court has not been provided a transcript of the hearing in the Smith case, the district court found in written reasons that “the issues in his [Smith’s] pending class action and those in this individual suit are the same.” Therefore, because both plaintiffs established they are putative members of the Vintu-rella class “as defined or described therein,” plaintiffs are entitled to the benefit of the suspension of prescription provided by La. C.C.P. art. 596. The respective district courts erred in granting the exceptions of prescription and dismissing their lawsuits.
CONCLUSION
Because plaintiffs were members of a class asserted in a pending class action petition in which the class certification issue remains unresolved, prescription on their individual actions was suspended pursuant to La. C.C.P. art. 596. The judgments of the district courts sustaining defendant’s exceptions of prescription and dismissing plaintiffs’ petitions as prescribed are reversed and the cases are remanded to the respective district courts for further proceedings.
REVERSED AND REMANDED.
Notes
. According to the pleadings, the Road Home suit was subsequently removed to the United States District Court for the Eastern District of Louisiana and consolidated into the In re: Katrina Canal Breaches Consolidated Litigation, No. 07-5528, on the docket of that court.
. As pointed out in Taranto, two provisions of law set the perimeters of the applicable prescriptive period: La. C.C. art. 3499, which provides that an action on a contract is a personal one, subject to the liberative prescription of ten years; and La. R.S. 22:629(A)(3), which, at the time, provided that no insurance contract issued for delivery in this state shall contain any stipulation limiting the right of action against an insurer to a period of less than twelve months after the inception of the loss. Id., 10-0105 at 19,
. The court additionally found that the contractual limitation period in the Citizens policy, to the extent it purports to "opt out” of prescription, abrogate the prescriptive periods established by law, or divest' said time limitations of their prescriptive nature, runs afoul of the prohibition of La. C.C. art. 3471. Taranto, 10-0105 at 16,
. In Taranto, the plaintiffs filed their independent suit within the time remaining under La. C.C.P. art. 596 after being excluded from two earlier, timely filed class actions: Buxton v. Louisiana Citizens Property Ins. Corp., 06-8341, on the docket of the Civil District Court for the Parish of Orleans and Chalona v. Louisiana Citizens Property Ins. Corp.,
. In this respect, Louisiana class action law differs from its federal counterpart. Federal Rule of Civil Procedure 23 does not contain a tolling provision. The federal tolling rule is a jurisprudential creation. See American Pipe & Constr. Co. v. Utah,
. The Article 591(B)(1) class action is, by definition, one in which the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications which would establish incompatible standards of conduct for the party opposing the class or a risk of adjudications which would dispose of or substantially impair the rights of other members of the class who are not parties to the adjudication.
The Article 591(B)(2) class action is, by definition, one in which, because of the conduct of the party opposing the class, injunc-tive or declaratory relief would be appropriate to the class as a whole.
. The Article 591(B)(3) class action is, according to the commentators, a ‘'spurious-type” class action imported from Federal Rule 23(b)(3), but with some additional limitations. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 4.12 at 103.
.The 1997 legislation does not specifically provide for the binding effect of an Article 591(B)(4) settlement class, the fourth type of class action, which is basically an Article 591(B)(3) class certified for settlement purposes even though the specific requirements for maintenance of an Article 591(B)(3) class are otherwise not met. However, one commentator has suggested the Article 591(B)(4) class action will be governed by the rules regulating the Article 591(B)(3) class action. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 4.12 at 105 n. 59.
. Under the federal rule, a court must simply send notice to class members describing "the time and manner for requesting exclusion.” Fed. Rule. Civ. Proc. 23(c)(2)(B)(iv).
. Indeed, as Lester points out, it is a position that has garnered favor in and been adopted by a number of federal courts to consider the issue in the context of class actions brought pursuant to Fed. Rule. Civ. Proc. 23. See, e.g., Wyser-Pratte Mgt. Co., Inc. v. Telxon Corp.,
.In fact, because there is no requirement that notice of the filing of a class action be provided to potential class members, an individual may not even know of the existence of the proceeding until after a decision on certification is made. Thus, it is presumptuous to assume, as defendant’s argument does, that the filing of an individual lawsuit is a choice to forego the class action.
. Pun appears in the original.
. See footnote 10, supra.
. In fact, the line of federal district court cases cited and relied upon in Lester were subsequently overruled by the Second Circuit Court of Appeals. In re Worldcom Securities Litigation,
. We have previously noted that to the extent Louisiana’s class action provisions ■ parallel Fed. Rule Civ. Proc. 23, our analysis is appropriately informed by federal jurisprudence interpreting Rule 23. Price v. Martin, 11-0853, p. 7 (La.12/6/11),
."[T]he time honored maxim, expressio uni-us et exclusio alterius ... teaches us that when the legislature specifically enumerates a series of things, the legislature's omission of other items, which could have been easily included in the statute, is deemed intentional.” Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La.5/20/97),
. For example, and by way of illustration only, a declinatory exception of lis pendens is one tool available to defendants when multiple suits are pending.
. As explained earlier, this federal filing was not a class action, but a mass joinder proceeding.
. As noted earlier, Mr. Smith additionally alleged he was a putative class member in the Road Home litigation. Based on his reliance on Vinturella, we do not need to reach the issue of whether the Road Home litigation suspends prescription for Mr. Smith. This issue, whether La. C.C.P. art. 596 suspends prescription when a putative class action is filed in another jurisdiction, is addressed in Quinn v. Louisiana Citizens Property Ins. Corp., 12-0152 (La.-1-/12), - So.3d. -, released simultaneously with this opinion.
. The district court elected to pursue this course in lieu of counsel introducing the pleadings into evidence.
. That class is defined as: "All owners of immovable property located in the State of Louisiana and in the parishes affected by Hurricane Katrina, who had in place on August 29, 2005 a fire (homeowner’s) insurance policy with Louisiana Farm Bureau Mutual Insurance Company or Louisiana Farm Bureau Casualty Insurance Company, who sustained a covered loss of, or damage to, such property and such property was rendered a total loss as a result of Hurricane Katrina."
Because no evidence was introduced at the hearing, the allegations of Ms. Duckworth’s petition, i.e., that she owned property insured by Farm Bureau that was rendered a total loss as a result of Hurricane Katrina, must be accepted as true. Under those allegations, Ms. Duckworth is clearly a member of the putative class defined in Vinturella.
Dissenting Opinion
dissents.
14 dissent from the majority opinion because in my view, a member of a putative