author: WEIMER, Justice.

text:
    Roger E. PRICE, et al. v. Roy O. MARTIN, et al.
    No. 2011-C-0853.
    Supreme Court of Louisiana.
    Dec. 6, 2011.

      Adams and Reese, LLP, Charles Fenner Gay, Jr., Don S. McKinney, New Orleans, LA, Edwards Wildman Palmer LLP, Brent R. Austin (pro hac vice), Leonard S. Kurfirst (pro hac vice), Barrasso, Usdin, Kupperman, Freeman & Sarver, LLC, Richard Edward Sarver, New Orleans, LA, Gold, Weems, Bruser, Sues & Run-dell, Charles Stovall Weems, III, Raymond Brown, Jr., Alexandria, LA, for Applicant.
    Marion App French, Alexandria, LA, Loupe Law Firm, LLC, John Chandler Loupe, McKernan Law Firm, John H. Smith, J.J. McKernan, Steve Irving, LLC, Stephen Miller Irving, Baton Rouge, LA, The Sotile Law Firm, LLC, Vincent J. Sotile, Jr., Prairieville, LA, for Respondent.
   WEIMER, Justice.

liWe granted certiorari in this lawsuit to determine whether the lower courts correctly applied the standards for analyzing class action certification set forth in La. C.C.P. arts. 591, et seq. After reviewing the record and the applicable law, we find the lower courts erred in concluding that common questions of law or fact exist, that questions of law or fact common to members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for a fair and efficient adjudication of this matter. Accordingly, we reverse the judgment of the district court which granted plaintiffs’ motion for class certification.

FACTS AND PROCEDURAL HISTORY

In February 2003, five individuals residing and owning property in Alexandria, Louisiana, in the vicinity of the Dura-Wood Treating Company (“the Dura-Wood facility”), filed on their own behalf and as representatives of a class of persons, who allegedly suffered damages as a result of operations at the wood-treating facility, a “Class Action Petition for Damages.” The petition was filed in the Twenty-third | ¾Judicial District Court, Parish of Ascension, but the matter was subsequently transferred to the Ninth Judicial District Court, Parish of Rapides, pursuant to a judgment sustaining exceptions of improper venue. Named as defendants in the original petition were prior owners of the Dura-Wood facility, Roy O. Martin Lumber Company, L.P. (“Martin”), and Beazer East, Inc. (“Beazer”).

The petition, which was amended several times, alleges that the Dura-Wood facility is primarily engaged in the production of creosote-treated railroad ties. According to the petition, from 1940 to mid-1950, while under the ownership and operation of Koppers Company, Inc. (now defendant Beazer), creosote and wastewater from the facility were discharged into a small creek running into Chatlin Lake Canal. Later, ponds were constructed to receive water from the wood preserving operations. Plaintiffs allege that significant quantities of creosote sludge were deposited into the canal and ponds. According to plaintiffs, in 1970, defendant Martin purchased the Dura-Wood facility and began using the contaminated ponds to receive process water.

Plaintiffs allege that throughout its operation, there were spills at the facility that were never remediated. There was no containment of creosote drippings from the treating units or of runoff and/or overflow at the facility. Neighboring residents were not prohibited from entering the facility. In addition, trimmings from treated |awood were allegedly collected in a pile at the facility and neighboring residents were allowed to use the treated wood for cooking and heating.

According to plaintiffs’ allegations, these environmentally unsound practices caused a significant amount of hazardous and toxic chemicals to be released into the environment, including the air, soil, and water, of the communities in which plaintiffs reside, contaminating the soil, sediments, groundwater, and buildings therein and thereon. In particular, plaintiffs allege that defendants’ wood-treating and preserving activities caused the release of creosote, hexachlorobenzene, and pentachlorophenol into their communities, exposing plaintiffs to physical injury in the form of increased risk of disease, property damage, and diminished property values. Plaintiffs allege that defendants’ activities constitute a nuisance under La. C.C. arts. 667, et seq., and that defendants were negligent under La. C.C. arts. 2315 and 2817.

In November 2003, plaintiffs filed a “Motion for Certification of Class Action,” asserting that more than 3,000 persons, firms, and entities have been damaged by defendants’ conduct and that the following issues are common to the class and predominate over individual issues: (1) liability for compensatory damages, or whether “leakage, release and discharge of toxic chemical and hazardous substances from the Dura-Wood Site ... has caused the surrounding area ... to be contaminated with toxic and/or hazardous substances” and (2) liability for exemplary damages, or whether defendants engaged in the “reckless handling, transportation and/or storage of toxic and/or hazardous [substances] which are a danger to the public health.” In |4a much later filed (March 23, 2009) memorandum in support of class certifieation, plaintiffs sought certification of a class to be defined as follows:

All persons and entities, at any time since 1940 until the present time located or residing in, owning or leasing places of business or property in, operating businesses in, and/or who were or are physically present within the geographic area as defined in Section B, who claim property damage, and diminished property value, including stigmatization of the community and contamination of their homes, yards, vehicles and general living environment, including the groundwater underneath their property.

Plaintiffs argued the proposed class, which would establish “the offsite-migration of certain chemicals which originated from the DuraWood facility ... as a result of the negligent conduct of the defendants, for which they are responsible,” satisfied the requirements of La. C.C.P. art. 591(A) and (B)(3).

A hearing on the class certification issue was conducted on September 22 and 23, 2009. The matter was taken under advisement, and in February 2010, following the issuance of extensive and lengthy written reasons, the district court rendered a judgment granting plaintiffs’ motion for class certification, certifying in its reasons for judgment a class defined as “property owners who owned property within the class area at the time the property was damaged during the years of 1944 through present.”

Defendants appealed the district court’s ruling, and the court of appeal affirmed. Price v. Martin, 10-599 (La.App. 3 Cir. 2/2/11), 56 So.3d 1109. The appellate court ultimately found no reversible error in the district court’s judgment certifying the class, although it candidly acknowledged “a number of potential problems with the class as it has been defined:” to wit, the unprecedented and extremely long period of time over which plaintiffs may claim harm; the fact that, [Balthough there is only one facility, there have been multiple owners of the facility; and the fact that inclusion of past and current landowners within the class will likely result in conflicts among those whose interests should be aligned. Price, 10-599 at 14, 56 So.3d at 1118. Nevertheless, relying on the district court’s ability, at any time before a decision on the merits of the common issues, to alter the class, redefine the class, or even recall the class certification altogether, and on prior language from this court indicating that errors in deciding class action issues should be in favor of and not against the maintenance of the class action, the court of appeal concluded that the district court did not abuse its discretion in certifying the class. Id.

We granted certiorari to review the judgments of the lower courts and, in particular, to examine whether those courts engaged in the rigorous analysis required to determine whether this action meets the requirements imposed by law for class action certification. Price v. Martin, 11-0853 (La.7/1/11), 64 So.3d 234.

DISCUSSION

Class Action Rules

Once more this court is being called on to evaluate the appropriateness of a mass tort claim for class certification. The requirements for certification of such claims have been the object of scrutiny and discussion by this court on several previous occasions. See Brooks v. Union Pacific Railroad Co., 08-2035 (La.5/22/09), 13 So.3d 546; Ford v. Murphy Oil U.S.A., Inc., 96-2913, 96-2917, 96-2929 (La.9/9/97), 703 So.2d 542; McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612 (La.1984).

Recently, in Dupree v. Lafayette Ins. Co., 09-2602 (La.11/30/10), 51 So.3d 673, this court pointed out that extensive revisions to the class action provisions, La. C.C.P. arts. 591, et seq., were enacted by the legislature in 1997. These revisions, | fiWhich govern the present action, essentially adopted current federal law governing class actions, Fed. Rule Civ. Proc. 23, and codified this court’s prior class certification jurisprudence. Dupree, 09-2602 at 5, 51 So.3d at 679.

As a result, it remains true that “a class action is a nontraditional litigation procedure that permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court.” Dupree, 09-2602 at 6, 51 So.3d at 679, citing Brooks, 08-2035 at 10-11, 13 So.3d at 554. The purpose and intent of the class action is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but also to all others “similarly situated.” Id.

The class action is an exception to the rule that litigation be conducted by and on behalf of the individual named parties only. Wal-Mart Stores, Inc. v. Dukes, - U.S. -, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011). Thus, the determination of whether a class action meets the requirements imposed by law requires a “rigorous analysis.” Dupree, 09-2602 at 6, 51 So.3d at 697; Brooks, 08-2035 at 10, 13 So.3d at 554. Such an analysis requires the district court to “evaluate, quantify and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, judicial efficiency, and individual fairness.” McCastle, 456 So.2d at 618. In so doing, the court “must actively inquire into every aspect of the case and should not hesitate to require showings beyond the pleadings.” Id. In practice, the analysis will frequently entail overlap with the merits of the underlying claim. Wal-Mart Stores, Inc., 131 S.Ct. at 2551.

|7Class action rules do not set forth a mere pleading standard; rather, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc., 131 S.Ct. at 2551. While any errors to be made in deciding class action issues should, as a general rule, be in favor of and not against the maintenance of the class action because a class certification is always subject to modification or decertifi-cation if later developments so require, see La. C.C.P. art. 592(A)(3)(c), that general rule cannot and should not be used as a substitute for the rigorous analysis required to determine whether the prerequisites of Louisiana’s class action provisions have in fact been satisfied. See McCastle, 456 So.2d at 616 (La. C.C.P. art. 591 requires a “close look” at a case before it is accepted as a class action).

In reviewing a judgment on class certification, the district court’s factual findings are subject to the manifest error standard, while the court’s ultimate decision regarding whether to certify the class is reviewed under the abuse of discretion 1 standard, Brooks, 08-2035 at 10, 13 So.3d at 554. Whether the district court applied the correct legal standard in determining whether to certify the class is reviewed de novo. Brooks, 08-2035 at 11, 13 So.3d at 554.

The requirements for class certification applicable to this action are found in La. C.C.P. art. 591. Louisiana C.C.P. art. 591(A) sets forth five threshold prerequisites that must be met and provides:

. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

In addition to these five prerequisites, La. C.C.P. art. 591(B) lists additional requirements that must be met, depending on the type of class action sought. In this case, the parties submit that the additional requirement that must be satisfied is found in La. C.C.P. art. 591(B)(8), which provides:

The court [must find] that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
| fl(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation[.]

Louisiana C.C.P. art. 591(C) cautions that class “[cjertification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class.” Nevertheless, where certification is maintained, “the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.” La. C.C.P. art. 591(C).

The burden of proving the statutory class certification criteria have been satisfied falls on the party seeking to maintain the class action. Dupree, 09-2602 at 10, 51 So.3d at 682. In this case, the plaintiffs were thus required to prove that the five prerequisites of La. C.C.P. art. 591(A) — numerosity, commonality, typicality, adequacy of representative parties, and objectively definable class — were met. In addition, they were required to prove, consistent with La. C.C.P. art. 591(B)(3), that common questions of law or fact predominate over individual issues and that the class action is superior to any other method for resolving the controversy fairly and efficiently. For reasons explained more fully below, we find that the district court erred in ruling that the Article 591(A) prerequisite — questions of law or fact common to the class — was met and, further, in determining that the requirements of Article | in591(B)(3) were also satisfied — that common issues predominate over individual issues and that the class action is superior to any other method for resolving this controversy fairly and efficiently.

Commonality

The commonality prerequisite requires a party seeking class certification to show that “[t]here are questions of law or fact common to the class.” La. C.C.P. art. 591(A)(2). This language is “easy to misread, since ‘[a]ny competently crafted class complaint literally raises common “questions.” ’ ” Wal-Mart Stores, Inc., 131 S.Ct. at 2551, quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 131-32 (2009). The mere existence of common questions, however, will not satisfy the commonality requirement. Commonality requires a party seeking certification to demonstrate the class members’ claims depend on a common contention, and that common contention must be one capable of class-wide resolution — one where the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc., 131 S.Ct. at 2551. As this court has succinctly explained:

To satisfy the commonality requirement, there must exist “as to the totality of the issues a common nucleus of operative facts.... ” A common question is one that, when answered as to one class member, is answered as to all of them. [Citations omitted.]

Dupree, 09-2602 at 11, 51 So.3d at 682-83.

In the context of mass tort litigation, this court has further refined the commonality requirement, stating that, in such cases, “in order to meet the common cause requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation.” Brooks, 08-2035 at 17, 13 So.3d at 559.

InAt the time of the hearing on plaintiffs’ motion for class certification in the present case, plaintiffs were asserting causes of action on behalf of a class of some 4,600 property owners for damage caused from 1944 to the present by the emission of toxic chemicals from operations at the wood treating facility. The essence of the causes of action, which arise under La. C.C. arts. 667, et seq.; 2315; and 2317, is that the named defendants conducted activities which unreasonably inconvenienced and damaged the property of the class members by depositing polycyclic aromatic hydrocarbons (“PAHs”) and dioxins in the attic dust of their residential and commercial properties. Plaintiffs argue the commonality requirement is satisfied in this case by the existence of one factual issue common to the class members: “whether defendants’ off-site emissions caused property damage to the residences in the area surrounding the plant.”

In affirming the district court’s decision to certify the class, the court of appeal found that the common issue identified by the district court — whether the Dura-Wood facility, during the period from 1944 to the present, emitted PAHs and dioxins of such a kind and quantity as to cause harm to plaintiffs and whether plaintiffs were in fact harmed — will be resolved, not by examining individual residences, but by showing that elevated toxin levels emanated from the defendants’ facility “on a[n] area-wide basis,” and that this issue, when decided for one class member, will be. decided for all. Price, 10-599 at 8-9, 56 So.3d at 1115. This conclusion reflects a misinterpretation of the law and of plaintiffs’ burden of proof.

To establish the “common issue” they posit, plaintiffs were required to present evidence not simply that emissions occurred, but that the emissions resulted in the deposit of unreasonably elevated levels of toxic chemicals on plaintiffs’ properties; | ]2in other words, that defendants had a duty to avoid the release of unreasonable levels of contaminants from their operations, that this duty was breached, and that the breach caused plaintiffs to sustain property damage. See, e.g., Ford, 96-2913 at 11 n. 11, 703 So.2d at 549 n. 11. And, this common issue must be capable of resolution for all class members based on common evidence. See, e.g., Brooks, 08-2035 at 20, 13 So.3d at 561 (one class member must be able to prove the cause of his injury or damage based on the same set of operative facts as would be offered by every other member of the class). Moreover, proof of commonality must be “significant.” See Wal-Mart Stores, Inc., 131 S.Ct. at 2553. Even a cursory review of the facts presented at the certification hearing, those uncontested as well as those found by the district court, reveals that plaintiffs fell short of their burden. In this case neither the issue of breach nor that of causation is capable of resolution on a class-wide basis on common evidence.

With respect to the issue of breach— whether defendants breached the applicable standard of care by permitting damaging emissions — the following evidence is undisputed. The Dura-Wood facility has had three successive owners during the relevant time period (1944 to the present). Only two of those owners have presently been sued. These owners have engaged in independent and varying operations throughout the approximately 66-year period of emissions. The specific operations that plaintiffs allege resulted in off-site emissions — such as overflow, runoff, and the burning of wood by residents — have occurred at varied and unspecified times during the period in question. Moreover, the facility’s operations have changed over time. For example, the evidence demonstrates the practice of teepee burning (the use of a steel incinerator to dispose of waste wood) ceased in or around 1982. The use of pentachlorophenol, which plaintiffs allege was a major source of dioxin emissions, | isdid not begin until 1964. Depending on the nature and date of the emission, different owners could be responsible.

Further, throughout the years, the legal standards applying to the operations of the wood-treating facility have changed. For example, whether principles of strict liability or negligence will govern the conduct of defendants depends on the year the damaging emission occurred. Likewise, exemplary damages are only available for conduct occurring from 1984 to 1996 pursuant to former La. C.C. art. 2315.3. The standards for air emissions vary also. Plaintiffs’ emission expert, Dr. Nicholas Cheremisinoff, testified that regulatory agencies across the country allow the release of certain levels of PAHs and dioxins into the atmosphere and that it would be “absurd” to hold a business to a zero emission standard. But, standards in 1964, after passage of the Clean Air Act, 42 U.S.C. 7401, et seq., will differ from those in effect after 1970, when the Act was broadened to cover emissions from industrial sources, as well as from those in effect after 1990, when the Act was again amended to regulate specific pollutants. Thus, a single legal standard will not apply to a single course of conduct. Class members who owned property damaged by emissions in the 1950s will not be able to rely on the same environmental standards invoked by those who own property damaged by emissions in the 1980s.

The issue of breach will thus turn on different conduct, by different defendants, at different times, under different legal standards. Despite this variability, for purposes of the certification hearing, Dr. Cheremisinoff merely estimated the amount of air emissions generated by facility operations for a single year (1970). In doing so, he conceded that his calculations would not be valid for any other years. Although | uattic dust from various properties was tested for contaminants, not one of the named plaintiffs was even shown to have a contaminated attic; and, there was no attempt to determine when contaminants were deposited in the attics of the buildings that were contaminated. In short, plaintiffs offered no evidence to demonstrate that the issue of breach can be resolved from a common nucleus of facts — the same emissions or conduct by defendants were not shown to touch and concern all members of the class.

The same conclusion is obtained with respect to the issue of causation. To satisfy the commonality requirement, plaintiffs must be able to prove for each class member, with the same common evidence, a causal connection between specific emissions and damage to the class member’s property. Brooks, 08-2035 at 20, 13 So.3d at 561.

Pretermitting for a moment the question of whether, in the absence of property-specific testing, contaminants in the form of PAHs and dioxins will be found on the properties of class members in levels that exceed mere inconvenience (and injury or damage thereby established), to prove common causation, plaintiffs must present significant proof that the Dura-Wood facility is the source of the attic contaminants. .

Plaintiffs acknowledged, and the district court found, that there are myriad area-wide and property-specific alternative sources of PAHs and dioxins in the defined class area. In written reasons for judgment, the district court noted:

Plaintiffs’ experts have agreed that there are several property-specific con-founders for PAHs and dioxins in each home. For instance, Randy Horsak, P.E., a non-testifying expert witness for plaintiffs, stated that “how much chicken do they eat, cook, how often do they burn chicken, where does the smoke from the burnt chicken go, how many 11ficigarettes they smoke, you know, what type of air fresheners they use, all these things” can affect the levels of PAHs and dioxins. Another of plaintiffs’ non-testifying expert witnesses, Paul Rosen-feld, Ph.D., agreed that things such as cigarette smoke, fireplaces, and wood burning stoves can contribute to any alleged contamination.
Plaintiffs’ experts have also agreed that area-wide alternate sources within the proposed class area can impact the levels of PAHs and dioxins. Mr. Horsak noted that homes within two blocks of a highway can be impacted by highway emissions of PAHs and dioxins. Dr. Rosenfeld likewise acknowledged that alternate sources of PAHs in the area can be attributed to barrel burning, diesel particulate emissions from trucks and trains, fires, the burning of coal, and “atmospheric deposition from God knows where.” Dr. Shari Libicki, one of defendants’ testifying expert witnesses, added that these outside PAHs and dioxins can be brought into the home through air conditioners or tracking in these substances by walking into the home. [Record citations omitted.]

The evidence thus establishes that PAHs and dioxins are ubiquitous and present in virtually all communities, including the Alexandria area. They are the byproduct of common forms of combustion— burning petroleum, gasoline, wood, coal, tires, garbage, yard refuse, and other trash; barbecuing meat and indoor cooking; home and vehicle fibres; and tobacco smoking.

Recognizing the myriad sources of PAHs and dioxins in the community that could account for and/or contribute to the contamination of dust in plaintiffs’ attics, the district court acknowledged that “[a]t this stage in the suit, plaintiffs have not provided evidence that the PAHs and dioxins found on certain pieces of property derived solely from the Dura-Wood facility.” Citing Marshall v. Air Liquide-Big Three, Inc., 08-0668 (La.App. 4 Cir. 12/17/08); 2 So.3d 541, 546, writ denied, 09-0105, 09-0111 (La.3/13/09), 5 So.3d 125, the district court in this case excused this evidentiary lapse based on a finding that the only issue to be considered at a certification hearing is whether the case is one in which the class action procedural device is appropriate, not whether the plaintiffs may prevail on the merits. In making |lfithis determination, the district court confused the issue before it — whether plaintiffs presented significant proof of common causation — with a merits determination. Evidence that a claim can exist is not evidence that it does exist or that all class members have that claim in common.

As discussed above, to prove the commonality prerequisite, plaintiffs must demonstrate that there is, in fact, a common question, one whose “truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” See Wal-Mart Stores, Inc., 131 S.Ct. at 2551. In this case, plaintiffs must prove that they will be able to show, with common evidence, that PAHs and dioxins found in the properties of class members derived from the Dura-Wood facility. For class certification to be appropriate, there must be some common thread which holds the claims together. With regard to causation, plaintiffs failed to present sufficient evidence to prove the existence of that common thread.

Before this court, plaintiffs argue that the lack of evidence to directly link PAHs and dioxins found on tested properties to the Dura-Wood facility is not fatal to maintenance of their class action. They maintain that the most dangerous contaminants coming out of the facility were dioxins and dibenzofurans, by-products from the use of pentachlorophenol in the treatment of railroad ties, and that “all class properties received this contamination.” Plaintiffs assert that pentachlorophenol has a unique dioxin fingerprint and suggest that they can identify this fingerprint in attic dust samples from plaintiffs’ properties, thereby tracing the specific contamination in the attic dust to Dura-Wood operations and no other source.

However, as the district court pointed out, plaintiffs’ experts did not actually perform any analysis of the dioxin fingerprint found in the attic dust of the properties they tested. And, plaintiffs concede that although class membership extends back to |171944, there is no evidence of pentachlorophenol use before 1964. As a result, analysis of the dioxin fingerprint will not establish causation for all class members. Further, there is no evidence to suggest that plaintiffs will be able to trace and link a particular attic dust with a dioxin fingerprint to the conduct/emission of a specific defendant. Finally, plaintiffs do not suggest there is any means of tracing PAHs— the other identified contaminants — to facility emissions; plaintiffs’ fingerprint analysis would apply only to the dioxin fingerprint of pentachlorophenol.

Given the multitude of alternate sources of PAHs and dioxins proven to exist in the area in question and the inability of plaintiffs to link those contaminants solely to emissions from the Dura-Wood facility, it is clear that plaintiffs have failed to offer significant proof that causation for each class member will be determined by a common nucleus of operative facts. The evidence demonstrates that whether contamination in the attic dust of a property was caused by emissions from the Dura-Wood facility will not turn on common evidence, such as a chemical fingerprint, but on a myriad of property-specific facts, such as whether trash was burned in a backyard pit or barrel on a particular property, the property experienced a home or vehicle fire, the residents barbecued meat or cooked food in a kitchen that was poorly ventilated, the property is located near a highway or other location subject to vehicle emissions, the residents smoked cigarettes, or any number of other property-specific factors that demonstrate a source of contamination other than emissions from the Dura-Wood facility.

In finding the common cause prerequisite for certification satisfied in this case, both lower courts relied on language from this court indicating that the requirement of common causation in a mass tort case does not also require commonality in the 11samount or extent of damages to attribute the questions of whether and to what extent a property was impacted by PAHs or dioxins and whether the PAHs and dioxins came from an emission by one of the defendants or another source to the issue of damages and not causation. See Price, 10-599 at 10, 56 So.3d at 1116. However, as the decision of this court in Ford, supra, demonstrates, such questions are not ones of damages, but of causation and liability, and substantive questions of causation and liability require commonality.

In Ford, property owners filed suit claiming that four petrochemical plants emitted noxious odors, fumes and gases that, individually or in combination, caused damage to the surrounding community for a period of approximately four years. In examining whether the action met the “common character” requirement for class certification under the then-applicable version of La. C.C.P. art. 591, this court held that mass torts could be brought as a class action only if they arose from a common cause or disaster. Ford, 96-2913 at 13, 703 So.2d at 549. This holding was based on the recognition that causation is an essential part of the liability determination and if causation is not the same for each plaintiff, individual trials would be required, which would defeat the purpose of the class action procedure. In reaching this conclusion, the court reasoned:

The court of appeal made the following erroneous crucial finding ... that “[offering the same facts, all class members will attempt to establish that the activities of Mobil and Murphy emitted hazardous, toxic, corrosive, or noxious odors, fumes, gases or particulate matter that caused them damage. The issue of these defendants['] duty predominates over individual questions.” However, far from offering |inthe same facts, each class member will necessarily have to offer different facts to establish that certain defendants’ emissions, either individually or in combination, caused them specific damages on yet unspecified dates (which dates may run into the hundreds or even thousands). The causation issue is even more complicated considering the widely divergent types of personal, property and business damages claimed and considering each plaintiffs’ unique habits, exposures, length of exposures, medications, medical conditions, employment, and location of residence or business. In addition, each plaintiff will have to prove that the specific harm he suffered surpassed the level of inconvenience that is tolerated under C.C. art. 668. [Citation and footnote omitted; emphasis added.]

Ford, 96-2913 at 11-12, 703 So.2d at 548-49. In Ford, this court explained that under La. C.C. arts. 667-669 (the same articles on which liability is premised in this case), a factual determination must be made as to the nature and extent of the inconvenience that each plaintiff claims and this determination “is a substantive element of liability, not merely an issue of quantum of damages.” Ford, 96-2913 at 12 n. 11, 703 So.2d at 549 n. 11. Whether an activity or work occasions real damage or mere inconvenience requires consideration of such factors as the character of the neighborhood, the degree of intrusion, and the effect of the activity on the health and safety of the neighbors, factors which do not lend themselves to resolution on a common, class-wide basis. Barrett v. T.L. James & Co., 28,170, p. 6-7 (La.App. 2 Cir. 4/3/96), 671 So.2d 1186, 1191, writ denied, 96-1124 (La.6/7/96), 674 So.2d 973.

Although the district court attempted to distinguish Ford on grounds that the Ford plaintiffs alleged that damage was caused by four petrochemical plants, whereas in this case, “the plaintiffs have alleged that damage has been caused by only one defendant, the Dura-Wood Treatment Company,” the distinction is one which does not hold up under scrutiny. Plaintiffs do not in fact allege that damage has been caused by only one defendant; they allege damage emanated from one facility, but |2qthat facility was operated successively and independently by more than one owner over a period of 66 years, providing more than one source of emissions from multiple operations performed according to varying standards of conduct. Ford, instructs that, unlike the present case, only mass torts “arising from a common cause or disaster” are appropriate for class certification. Ford, 96-2913 at 13, 703 So.2d at 550.

Ford’s instruction was reaffirmed in Brooks, a mass-tort action in which, after heavy rains caused flooding, property owners in three drainage basins attempted to certify a class based on defective drainage structures designed and maintained by multiple defendants responsible for different portions of the drainage structures. Regarding common causation, this court explained in Brooks:

[I]n order to meet the common cause requirement, each member of the class must be able to prove individual causation based on the same set of operative facts and law that would be used by any other class member to prove causation. For example, the cause of flooding must be the same for each member of the class, and if there is more than one cause of flooding, each of these causes must be the same for each class member.

Brooks, 08-2035 at 17, 13 So.3d at 559. The evidence in this case demonstrates that plaintiffs will be unable to meet this requirement.

Just as in Ford, far from offering the same facts, each member of the proposed class in this case will necessarily have to offer different facts to establish that each defendant’s emissions caused them specific damages on yet unspecified dates (which dates may run into the hundreds or even thousands, considering the 66-year period in question). The causation issue is further complicated by the multitude of alternate sources of PAHs and dioxins in the Alexandria area and on the individual properties of each proposed class member, and by the divergent types of properties encompassed l^by the proposed class, which include restaurants, occupied and unoccupied residences, industrial and manufacturing complexes, gas stations, agricultural lots, schools, stores, and churches. Whether the properties even have buildings with attics and, if so, the accessibility of those attics are property-specific determinations that will factor into each plaintiffs proof that the specific harm he suffered surpassed the level of inconvenience that is tolerated under La. C.C. art. 668.

As in Ford, the mere finding of a duty not to pollute will do little to advance the issues in this case. There appear to be far too many individual liability issues which must be tried separately. La. C.C.P. art. 591(C).

The application of the admonition in Ford and Brooks that only mass torts arising from a common cause or disaster are appropriate for class certification is inescapable in this case. Also inescapable is the fact that for this action, or any other action, to proceed as a class action, there must be “significant proof,” subject to “rigorous analysis,” of a common question— one where the “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Store, Inc., 131 S.Ct. at 2551. In the instant case, the district court mischaracterized liability determinative issues, dependent for proof on facts individual to each putative class member, as affirmative defenses and/or damage issues and, in the process, manifestly erred in concluding that plaintiffs met their burden of proving the existence of questions of law or fact common to the class.

Predominance and Superiority

To obtain class certification, in addition to proving all the requirements of La. C.C.P. art. 591(A), plaintiffs were required to prove, pursuant to La. C.C.P. art. 591(B)(3), that common questions of law or fact predominate over any individual | tissues and that the class action procedure is superior to any other. As this court recently explained:

The inquiry into predominance tests “whether the proposed classes are sufficiently cohesive to warrant adjudication by representation.” ... [T]he predominance requirement is more demanding than the commonality requirement, because it “entails identifying the substantive issues that will control the outcome, assessing which issues will predominate, and then determining whether the issues are common to the class,” a process that ultimately “prevents the class from degenerating into a series of individual trials.” [Citations omitted.]

Dupree, 09-2602 at 11-12, 51 So.3d at 683. Louisiana C.C.P. art. 591(B)(3)(a)-(f) sets forth six considerations to be weighed in determining whether the predominance and superiority requirements are satisfied.

Because we find the district court manifestly erred in determining plaintiffs satis-fíed the commonality prerequisite of La. C.C.P. art. 591(A), we are compelled to conclude, as the logical corollary to that finding, that substantive questions of law and fact common to the class will not predominate over questions affecting only individual members. Thus, we find that, as with the commonality determination and for the same reasons, the district court manifestly erred in determining the predominance requirement was satisfied.

Under the unique facts of this case, we likewise find the district court erred in finding the class action is superior to other methods. In Brooks, this court stressed that in making the superiority determination, the district court must “evaluate, quantify, and weigh [the relevant factors] to determine to what extent the class action would in each instance promote or detract from the goals of effectuating substantive law, judgment efficiency, and individual fairness.” Brooks, 08-2035 at 10, 13 So.3d at 554. The legislature has since codified the factors deemed pertinent to this analysis. See La. C.C.P. art. 591(B)(3). Our examination of those factors convinces | aaus that the class action is not superior to other methods for resolution of this controversy.

Louisiana C.C.P. art. 591(B)(3)(a) directs the court to consider “[t]he interest of the members of the class in individually controlling the prosecution or defense of separate actions.” With regard to this consideration, we find that the claims are so highly individualized that class certification likely will be unfair to members who have claims stronger than the named representatives. Pertinent to this determination are the serious and significant issues created by the distl'ict court’s inclusion of both past and present property owners in the class. In defining the class to consist of “property owners who owned property within the class area at the time the property was damaged,” the district court created conflicts among past and present owners that favor individual, rather than class resolution, of their respective damage claims. For example, the district court found that named plaintiff Roger Price has standing to pursue damage claims on four separate properties that he purchased during the class period. Each of these claims creates a conflict between the prior owners of the respective properties and him. With respect to property at 3641 Bethel Street, the court found that Mr. Price has standing to pursue a claim for property damage occurring after 1971, the date of purchase. Based on the class certification approved by the lower courts, prior owners of the property would also have standing to sue for damages occurring during their period of ownership, but Mr. Price’s interest in maximizing the damages during his ownership conflicts with that of the prior owners. The existence of such conflicts overwhelmingly militates against the class action procedure.

Also militating against class certification is the fact that over 500 putative class members have already brought individual claims against these same defendants for | ¡.¿personal injuries and property damage allegedly caused by the same facility emissions. See Paige v. Dura-Wood, LLC, No. 214-913, Ninth Judicial District Court, Parish of Rapides. Because we find no common issues exist among the putative class members in this case, and the merits of each case will turn on individual proof of liability, the extent and nature of the litigation already commenced do not suggest class certification will add to fairness and efficiency. See La. C.C.P. art. 591(B)(3)(b).

As to the desirability or undesirability of concentrating the litigation in Rapides Parish, we find that no common factual or legal issues exist that would militate in favor of having plaintiffs’ claims adjudicated in a single forum. The difficulties likely to be encountered in the management of a class action such as that proposed by plaintiffs do not warrant a finding that the class action is a superior method for fair and efficient adjudication of this controversy. See La. C.C.P. art. 591(B)(3)(d). In fact, plaintiffs have acknowledged that injury and causation are not susceptible to class-wide resolution and have proposed a series of mini-trials on this issue with respect to each putative class member, undermining the efficiency of the class action in the resolution of this controversy. Further, while plaintiffs insist that the expense of testing places individual litigation outside the financial ability of any homeowner in the area of the Dura-Wood facility, and deprives property owners of the practical ability to pursue their claims without class certification, plaintiffs have not shown the litigation cannot be handled efficiently under rules of joinder and cu-mulation of actions. See La. C.C.P. arts. 461 et seq.

^Finally, we do not find the vindication of public policies or legal rights justifies the costs and burdens of class litigation. See La. C.C.P. art. 591(B)(3)(f). As we noted in Dupree, “[w]hen there are a myriad of individual complaints that ultimately will require plaintiff-by-plaintiff adjudication of liability issues, this will militate against a finding of predominance of common character and the superiority of the class action procedure.” Dupree, 09-2602 at 43, 51 So.3d at 701, quoting Davis v. Jazz Casino Co., L.L.C., 03-0005 (La.App. 4 Cir. 1/14/04), 864 So.2d 880, 889, writ denied, 04-0572 (La.4/23/04), 870 So.2d 304. This is especially true given the legislative policy of La. C.C.P. art. 591(C) — that class certification “shall not be for the purpose of adjudicating claim or defenses dependent for their resolution on proof individual to a member of the class.”

CONCLUSION

For the reasons set forth above, we conclude the district court manifestly erred in finding the requirements of La. C.C.P. art. 591(A)(2) — questions of law or fact common to the class — were proved. The district court likewise erred in finding, under La. C.C.P. art. 591(B)(3), that common issues of law or fact predominate over individual questions and that the class action procedure is superior to other available methods for fairly and efficiently adjudicating the claims asserted. As a consequence, we find that the district court abused its discretion in accepting this matter as a class action and in certifying the class. We therefore reverse the appellate court’s judgment affirming the district court’s class action certification, reverse the district court’s ruling granting the motion for class certification and certifying the class, and remand the case for further proceedings.

REVERSED AND REMANDED.

      . District court judgments overruling defendants' exceptions of improper venue were reversed on appeal, and the case was remanded for transfer to a parish of proper venue. See Price v. Roy O. Martin Lumber Company, 04-0227 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, writ denied, 05-1390 (La.1/27/06), 922 So.2d 543.

      . A third named defendant, Vulcan Materials Company, was later dismissed on plaintiffs' motion.

      .Facts developed subsequent to the filing of the petition reveal that Martin owned and operated the facility from mid-1970 until December 31, 1999, when it was sold to Rail-works Wood Products, Inc. ("Railworks”). Although Railworks took over the operations of the facility after the sale, and continues to operate the facility, it has not been named as a defendant in this action.

      . In addition to compensatory damages, plaintiffs seek exemplary damages for those damages sustained during the period of time in which La. C.C. art. 2315.3 permitted recovery of exemplary damages for wanton or reckless disregard of public safety in the storage, handling, or transportation of hazardous or toxic substances.

      . The class area was defined as the entire area within a circle having "a radius of one and one-half mile[s] with the center of the circle being located at the point in the Dura-Wood facility.”

      . While the Supreme Court’s discussion in Wal-Mart Stores, Inc. centers on Fed. Rule Civ. Proc. 23, this court has previously held that, to the extent La. C.C.P. art. 591 parallels Rule 23 regarding class actions, Louisiana’s class certification analysis is appropriately informed by federal jurisprudence interpreting Rule 23. Dupree, 09-2602 at 14 n. 8, 51 So.3d at 684 n. 8

      . La. C.C.P. art. 592(A)(3)(c) provides:
      In the process of class certification, or at any time thereafter before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

      .To the extent that language in McCastle, particularly the statement that ”[i]f there is to be an error made, it should be in favor and not against the maintenance of the class action” McCastle, 456 So.2d at 620, has been interpreted by courts as relaxing the plaintiffs’ burden in establishing the appropriateness of the class action for a particular case or the court’s role in evaluating whether the required statutory showing has been met, it has been misinterpreted. This general rule does not obviate the requirement that courts employ a "rigorous analysis” and take a "close look” at a case to determine if, in fact, the statutory requirements have been satisfied before accepting it as a class action. See Dupree, 09-2602 at 6, 51 So.3d at 679; Brooks, 08-2035 at 10, 13 So.3d at 554; McCastle, 456 So.2d at 616.

      . Polycyclic aromatic hydrocarbons are constituents of creosote.

      . In Loescher v. Parr, 324 So.2d 441 (La.1975), this court held that claims under La. C.C. art. 2317 are governed by principles of strict liability. That changed in 1996 with the enactment of La. C.C. art. 2317.1. See 1996 La. Acts, 1st Ex.Sess., No. 1, § 1, effective April 16, 1996.

      . The lower courts dismissed the question of whether contaminants in the form of PAHs and dioxins will be found on the properties of class members in levels that exceed mere inconvenience as a question of damages, not causation. This determination is examined more fully infra.

      . See Wal-Mart Stores, Inc., 131 S.Ct. at 2553.

      . In Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 99-0494 (La.11/12/99), 759 So.2d 755, 756, this court explained that “the mere fact that varying degrees of damages may result from the same factual transaction and same legal relationship or that class members must individually prove their right to recover does not preclude class certification.” See McCastle, 456 So.2d at 620 ("With respect to the question of damages, individual questions of quantum do not preclude a class action when predominant liability issues are common to the class.”).

      . The court of appeal’s attempts to distinguish Brooks on grounds that the common event in this case is "attributable to a singular facility,” fails for the same reason that same distinction, drawn by the district court in an effort to distinguish Ford, fails. Price, 10-599 at 9-10, 56 So.3d at 1116.

      . La. C.C.P. art. 591(B)(3)(c).

      . La. C.C.P. art. 591(B)(3)(e).


source: Caselaw Access Project

author: KNOLL, Justice. GUIDRY, Justice,

license: Public Domain

text:
    The LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. OILFIELD HEAVY HAULERS, L.L.C., Ace Transportation, Inc., David Kyle Vincent II, and Liberty Mutual Fire Insurance Company.
    No. 2011-C-0912.
    Supreme Court of Louisiana.
    Dec. 6, 2011.

      James McCaleb Bookter, Baton Rouge, LA, for Applicant.
    Gibson Gruenert & Zaunbrecher, PLLC, Paul Daniel Gibson, Jason Blake Bou-dreaux, Lafayette, LA, The Martin Law Firm, APLC, Dale Patrick Martin, Brous-sard, LA, for Respondent.
   KNOLL, Justice.

h This civil case presents the issue of whether scheduling a discovery conference pursuant to Rule 10.1 of the Rules for Louisiana District Courts constitutes a “step” in the prosecution or defense of an action sufficient to prevent abandonment of the action under La.Code Civ. Proc. art. 561.

After plaintiff, Louisiana Department of Transportation and Development (“DOTD”), failed to timely respond to discovery requests, defendant, Oilfield Heavy Haulers, L.L.C. (“OHH”), sent a letter to DOTD on April 24, 2007, requesting a Rule 10.1 discovery conference. Subsequently, DOTD served its discovery responses on OHH, but neglected to serve the other defendants.

No formal action occurred in the case until April 22, 2010, when the District Court granted defendants’ ex parte motion for an order of dismissal on the basis of abandonment. The Court of Appeal affirmed, finding DOTD’s discovery responses and OHH’s letter did not constitute steps in the prosecution or defense of the action. We granted this writ to address the correctness vel non of the appellate court’s decision. La. Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La.6/24/11); 64 So.3d 224. For the following reasons, we find scheduling a Rule 10.1 conference constitutes a step in the prosecution or defense |2of an action sufficient to interrupt abandonment. Therefore, we reverse the judgment of the Court of Appeal and remand to the District Court for further proceedings.

FACTS

On August 30, 2006, DOTD filed suit against defendants for property damage allegedly caused to two overpasses of Interstate 10 in Acadia Parish. DOTD alleges a vehicle owned by OHH, leased to Ace Transportation, Inc. (“Ace Transportation”), insured by Liberty Mutual Fire Insurance Company (“Liberty Mutual”), and driven by David Kyle Vincent, II (collectively “defendants”), was carrying an oversized load when it struck the overpasses in both the east and westbound lanes. Defendants filed responsive pleadings, including a cross-claim and third party demand by Ace Transportation, Vincent, and Liberty Mutual.

On March 15, 2007, OHH sent Interrogatories and Requests for Production to DOTD, which DOTD did not timely answer in accordance with La.Code Civ. Proc. art. 1458. Consequently, on April 24, 2007, counsel for OHH sent a fax to DOTD’s counsel stating:

Your client’s discovery responses are well overdue. Pursuant to Rule 10.1 of the Louisiana Uniform Rules, I would like to schedule a discovery conference for purposes of filing a Motion to Compel. Please be advised that we will contact your office on Friday April 27, 2007, at 2:30 p.m. in order to conduct the necessary discovery conference if I have not received your client’s responses pri- or to that time.

OHH’s counsel also faxed a copy of this correspondence to counsel for the remaining defendants. Counsel for DOTD and OHH conferred by phone on April 26, 2007, and apparently reached an agreement concerning DOTD’s overdue responses. DOTD sent its formal discovery responses to counsel for OHH on May |s10, 2007, but neglected to send a copy of these responses to the remaining defendants.

No formal activity took place in the case until April 20, 2010, when DOTD sent Requests for Admissions to all defendants and filed them into the trial court record on April 22, 2010. Subsequently, on May 21, 2010, Ace Transportation, Vincent, and Liberty Mutual filed an ex parte Motion for Dismissal of the action on the basis of abandonment. On May 24, 2010, the District Court signed the judgment granting dismissal of all claims. DOTD then filed a Motion to Vacate and Set Aside Order of Dismissal. Following a hearing, the District Court denied DOTD’s motion.

The Court of Appeal, Third Circuit, affirmed the judgment of the District Court. Relying on La.Code Civ. Proc. art. 561(B), which states “[a]ny formal discovery ... served on all parties ... shall be deemed to be a step in the prosecution or defense of an action,” the court found DOTD’s formal discovery responses did not constitute a step in the prosecution of its action, as it did not serve its responses on “all parties,” only on OHH. La. Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 10-1392, p. 4-5 (La.App. 3 Cir. 4/6/11); 62 So.3d 308, 311.

The court also held OHH’s April 24, 2007 letter scheduling a Rule 10.1 conference did not constitute a step in the prosecution of the action. According to the court, “[ejxtrajudicial efforts, such as informal discussions and correspondence between the parties, have uniformly been considered insufficient to constitute a step for purposes of interrupting or waiving abandonment.” Id., p. 5-6; 62 So.3d at 311 (internal quotations and citations omitted). Finding the April 24, 2007 letter was merely a correspondence between the parties, the court reasoned it was not formal discovery under Article 561(B) and was insufficient to constitute a step in the pros-eeution of the action. Id., p. 6; 62 So.3d at 312.

14Judge Saunders dissented and assigned reasons. First, he argued, dismissal of DOTD’s entire suit due to its “inadvertent failure” to serve its discovery responses on all the parties was not in keeping with the purpose of Article 561, “not to dismiss suits whose plaintiffs have no intention of abandoning them based on a mere technicality.” Id., p. 1; 62 So.3d at 312 (Saunders, J., dissenting) (citation omitted). Second, as a Rule 10.1 conference is a prerequisite to filing any discovery motions, scheduling a Rule 10.1 conference constitutes a step in the prosecution of the action. Id., p. 2; 62 So.3d at 312-13. OHH’s April 24, 2007 letter could be construed as a step, because “it actually did hasten the suit forward, as DOTD answered the outstanding discovery.” Id., p. 2; 62 So.3d at 312. Judge Saunders also noted:

Affirmation of this case results in a situation where DOTD would likely have been in a stronger position relative to abandonment had it merely ignored OHH’s letter and not answered the discovery. Then, more likely than not, OHH would have filed a motion to compel the answer of that discovery, thus interrupting abandonment.

Id.

DISCUSSION

The controlling statute in this case is La.Code Civ. Proc. art. 561, which provides in part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Article 561 imposes three requirements to avoid abandonment: (1) a party must take some “step” in the prosecution or defense of the action; (2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and (3) the step must be taken within three years of | Bthe last step taken by either party; sufficient action by either, plaintiff or defendant will be deemed a step. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5-6 (La.5/15/01); 785 So.2d 779, 784.

A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. See James v. Formosa Plastics Corp. of La., 01-2056, p. 4 (La.4/3/02); 813 So.2d 335, 338. A step by one party prevents abandonment as to all of the parties, even though they are not solidarily liable. Delta Dev. Co., Inc. v. Jurgens, 456 So.2d 145, 146 (La.1984).

The purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983). Abandonment is not a punitive concept; rather, it balances two competing policy considerations: (1) the desire to see every litigant have his day in court and not to lose same by some technical carelessness or unavoidable delay, and (2) the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription. Clark, 00-3010, p. 10-11; 785 So.2d at 787.

Our jurisprudence has uniformly held Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Id., p. 8; 785 So.2d at 785. Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment. Id., p. 10; 785 So.2d at 787. The intention of Article 561 is not to dismiss suits as abandoned based on technicalities, but only those cases where plaintiffs inaction during the three-year period has “ ‘clearly demonstrated his abandonment of the case.’ ” Id., p. 8-9; 785 So.2d at 785-86 (quoting Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4 Cir.1976), writ denied, 341 So.2d 420 (La.1977)). For the purpose of determining abandonment, |r,“the intent and substance of a party’s actions matter far more than technical compliance.” Thibaut Oil Co., Inc. v. Holly, 06-0313, p. 5 (La.App. 1 Cir. 2/14/07); 961 So.2d 1170, 1172-73.

As an initial matter, we find OHH’s letter should be analyzed under subsection (A)(1) of Article 561, rather than subsection (B) which pertains only to formal discovery. Article 561(B) states “[a]ny formal discovery as authorized by this Code and served on all parties” will constitute a step in the prosecution or defense of an action. In turn, La.Code Civ. Proc. art. 1421 only provides for the following discovery methods: “depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; request for release of medical records; and requests for admission.” Further, Article 1474 specifically provides the service of written objections, notices, requests, affidavits, interrogatories, and answers to interrogatories “shall be considered a step in the prosecution or defense of an action for purposes of Article 561.” La.Code Civ. Proc. 1474(C)(4). Neither OHH’s letter scheduling a Rule 10.1 conference nor the conference itself are discovery methods authorized by the Code and cannot constitute formal discovery for the purposes of Article 561(B). Therefore, we will analyze OHH’s letter under Article 561(A)(1), which states “[a]n action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.... ”

DOTD argues OHH’s April 24th letter scheduling a Rule 10.1 discovery conference constitutes a step in the prosecution of the action, as a discovery conference is a prerequisite to filing a motion to compel discovery or any other discovery motion. In turn, defendants characterize the April 24th letter as an | ./‘extrajudicial effort” and an informal correspondence between the parties for the purpose of following up on an outstanding discovery request.

“Extrajudicial efforts,” such as informal settlement negotiations between parties, have repeatedly been held to be insufficient to constitute a step in the prosecution of the action. Clark, 00-3010, p. 16; 785 So.2d at 790. Indeed, multiple appellate courts have found informal correspondence between parties regarding discovery matters is not a step sufficient to interrupt abandonment. Additionally, courts have held “simply attempting to schedule” a discovery matter, such as depositions, through informal correspondence is not a step in the prosecution of an action.

Recently, the Second Circuit in Brown v. Borg, 45,770 (La.App. 2 Cir. 1/19/11); 57 So.3d 378, writ denied, 11-0333 (La.4/1/11); 60 So.3d 1256, addressed a factual scenario almost identical to the present case. In Brown, defense counsel sent a letter to plaintiffs counsel demanding responses to previously propounded interrogatories, and requesting a Rule 10.1 conference if the discovery responses were not provided. The Second Circuit found the letter merely notified plaintiff she had not responded to discovery requests, and was not a new discovery action, constituting formal discovery. Id., p. 8-9; 57 So.3d at 381-82; see, e.g., Olavarrieta v. St. Pierre, 04-1566, p. 5-6 (La.App. 4 Cir. 5/11/05); 902 So.2d 566, 570, writ denied, 05-1557 (La.12/16/05); 917 So.2d 1118 (holding correspondence inquiring about the status of answers to interrogatories is not formal discovery); Moore v. Eden Gardens Nursing Ctr., 37,362, p. 4-5 (La.App. 2 Cir. 6/25/03); 850 So.2d 998, 1001 (same).

Although Brown is factually on point, we find the Second Circuit’s reasoning was somewhat perfunctory. The court concluded “defendant’s demand for responses to discovery — accompanied by a conditional request for a Rule 10.1 conference” was not a step, viewing the case as analogous to prior cases holding correspondence requesting discovery responses is not formal discovery, and thus, not a step in the prosecution of an action. See Brown, 45,770, p. 7; 57 So.3d at 381 (citing Moore, 37,362, p. 4-5; 850 So.2d at 1001). At no point did the court consider the mandatory nature of Rule 10.1 or whether its practical effect is to “hasten the matter towards judgment.”

We find two cases from the First Circuit are persuasive as to the proper method for analyzing whether a party’s action constitutes a step in the prosecution or defense of their case. In Hidalgo v. Catfish Queen Partnership in Commendam, 06-1531 (La.App. 1 Cir. 5/4/07); 961 So.2d 434, plaintiffs argued their attorney’s written requests for scheduling conferences filed with the court interrupted the abandonment period. The First Circuit analyzed plaintiffs’ request under the three requirements set forth in our decision in Clark. The court found the request satisfied the second and third factors, because it was filed with the trial court within the three-year period. As to the first factor, the court concluded the request constituted a step in the prosecution of plaintiffs’ action:

[Gjiven the objectives of the conferences as set forth in the case management schedule, it must be admitted that the ultimate purpose of the conference was to hasten the matter to judgment by selecting deadlines for the parties to conclude all pretrial matters.... Moreover, many district courts require scheduling conferences prior to fixing the matter for trial. Thus, the requests for the scheduling | ^conferences herein could be said to be a necessary step that the [plaintiffs] had to fulfill in order to hasten their case to judgment.

Id., p. 6; 961 So.2d at 438 (emphasis in original). Similarly, in Dendy v. City National Bank, 06-2436 (La.App. 1 Cir. 10/17/07); 977 So.2d 8, the court found plaintiffs request for a status conference to settle pleadings, fix discovery deadlines, and set a pre-trial conference and trial date constituted a step in the prosecution of his action, because the purpose of the conference was to move plaintiffs case towards judgment. Id., p. 9-10; 977 So.2d at 18.

Applying the three Clark requirements to OHH’s April 24th letter, we will first consider whether the letter constitutes a step in the prosecution of the action.

Louisiana District Court Rules, Rule 10.1, prior to its 2009 amendment, provided as follows:

Before filing any discovery motion, the moving party must attempt to arrange a conference with the opposing party for the purpose of amicably resolving the discovery dispute. The conference may be conducted in person or by telephone. The discovery motion must include a certificate stating:
(a) that the parties have conferred in person or by telephone as required by this rule and the reasons why they were unable to agree; or
(b) that opposing counsel has refused to confer after reasonable notice.
If the court finds that opposing counsel has willfully failed to confer, or failed to confer in good faith, the court may impose sanctions.

(emphasis added). Under the rule, a party “must” attempt to arrange a Rule 10.1 conference before the filing of “any” discovery motions. The use of the word “must” indicates the rule’s provisions are mandatory. See, e.g., Borel v. Young, 07-0419, p. 10-11 (La.11/27/07); 989 So.2d 42, 58-59 (on reh’g).

By the express language of the rule, a Rule 10.1 conference is a prerequisite to filing a motion to compel discovery or other discovery motion, which constitutes |ina step in the prosecution of the action. Because the District Court required a Rule 10.1 conference before OHH could file its motion to compel, scheduling the conference was a “necessary step” OHH had to fulfill to hasten the matter toward judgment. Cf. Hidalgo, 06-1531, p. 6; 961 So.2d at 438. Thus, as a practical matter, scheduling a Rule 10.1 conference serves as a step in the prosecution or defense of an action, as it is an essential component of a motion to compel.

The present case is distinguishable from cases holding informal correspondence does not constitute a step, as these cases did not concern a letter scheduling an action specifically required by the District Court before a party could take a step in the prosecution of the action. To treat OHH’s letter as merely informal correspondence ignores the mandatory nature of Rule 10.1. Because a Rule 10.1 conference was a prerequisite to OHH’s motion to compel, we find its April 24th letter effectively functioned as a step in the prosecution of the action.

The second requirement under Clark is the step “must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit.” Clark, 00-3010, p. 6; 785 So.2d at 784. OHH’s letter was not filed in the trial court record; however, this is not the end of our analysis.

This Court in Clark found a defendant-insurer’s unconditional tender of benefits to its insured pursuant to La.Rev.Stat. 22:658(A)(1) constituted an acknowledgment which served as a waiver of the right to assert abandonment. Id., p. 18-22; 785 So.2d at 791-93. In its decision, this Court addressed the formal action requirement, i.e., in order for an action by a party other than formal discovery to constitute a step, it must be before the trial court or filed in the trial | n court record. We noted the two jurisprudential exceptions to the abandonment rule are the only causes outside of the record permitted to interrupt abandonment: (1) a plaintiffs failure to prosecute based on circumstances beyond the plaintiffs control; or (2) a defendant’s waiver of the right to assert abandonment by taking action inconsistent with an intent to treat the case as abandoned. Id., p. 7; 785 So.2d at 784-85.

Despite this conclusion, the Court proceeded to analyze the purpose behind the “judicial engraftment” of the formal action requirement onto Article 561:

“[T]he courts have refused to characterize matters outside the record as steps in the prosecution of the suit because: (a) of the uncertainty of accepting informal non-legal proceedings as a step preventing abandonment; or (b) of the ex parte, informal nature of the action, without formal notice to the opposing party, as being an insufficient step in the advancement of the suit.”

Id., p. 17; 787 So.2d at 790 (quoting DeClouet v. Kansas City Southern Ry. Co., 176 So.2d 471, 476 (La.Ct.App.3d Cir.1965) (Tate, J., dissenting from denial of reh’g)) (emphasis in original). Thus, the formal action requirement was designed to protect defendants, as “allowing informal, ex parte actions to serve as a step in the prosecution ‘might interrupt prescription against abandonment without the opposing parties formally learning of them for months or years, to their possible prejudice.’ ” Id. (quoting DeClouet, 176 So.2d at 476). The Court concluded the absence of defendant’s unconditional tender from the record did not prevent it from constituting waiver, because “[t]he purpose underlying the rule is not present when, as here, it is the defendant taking action and doing so in defense of plaintiffs suit to avoid penalties and attorney’s fees.” Id.

We find the reasoning in Clark is equally applicable to the present case. The April 24th letter was sent by defendant OHH and served on the remaining defendants. Further, like the insurer in Clark, OHH sent the letter in defense of the suit, i.e., to obtain discovery responses from DOTD. We conclude the purpose 1 ^underlying the formal action requirement would not be served in the present case, as all defendants were aware of the letter, and thus, there is no issue of notice.

In reaching its decision in Clark, this Court also criticized our decision in Melancon v. Continental Casualty Co., 307 So.2d 308 (La.1975), which held an agreement by defendant not to take action in state court during the pendency of a federal proceeding was not a waiver, because the agreement was not filed in the state trial court. Id. at 312. Specifically, we found the “broad remark” in Melancon, stating “extrinsic proof of ... waiver cannot be permitted,” was “mistaken to the extent it precludes establishing an acknowledgment by the defendant of an obligation to plaintiff,” as it was “inconsistent with the jurisprudence holding that an order of dismissal based on abandonment may be set aside based upon ‘a showing that a cause outside the record prevented accrual of the [three] years required for abandonment’....” Clark, 00-3010, p. 14-15; 785 So.2d at 788-89 (quoting DeClouet, 176 So.2d at 476). Similarly, today, we hold the broad language in Melancon, requiring “any action taken by a party that is alleged to be a step in the prosecution or defense of the suit must appear in the court record” is mistaken to the extent it precludes actions made by defendants and known to all parties from constituting a step in the prosecution or defense of an action sufficient to interrupt abandonment. This approach comports with the policy considerations behind the formal action requirement as stated in Melancon; at the time an action is dismissed due to abandonment, the status of the litigation must be known with certainty. Melancon, 307 So.2d at 312. Where the action is taken by a defendant and there is no issue of notice by any of the parties, there can be no uncertainty.

This holding is also in keeping with our longstanding jurisprudence requiring a liberal construction of Article 561. “[A]ban-donment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly |1shave been abandoned.” Clark, 00-3010, p. 9; 785 So.2d at 786; cf. Hargis v. Jefferson Parish, 00-0072 (La.3/17/00); 755 So.2d 891 (per cu-riam) (reversing a finding of abandonment based on a letter to the clerk of court requesting service on defendants, which was not filed in the record). Here, DOTD, upon receiving the April 24th letter, contacted OHH and complied with its discovery request. This is not a case where plaintiffs inaction evidences an intent to abandon the suit.

As to Clark’s third requirement, there is no dispute OHH’s letter was sent less than three years before the last step in the action. OHH’s letter was sent on April 24, 2007 and the next formal action in the case occurred on April 22, 2010, when DOTD filed its Requests for Admissions. Accordingly, we find OHH’s letter satisfies the requirements set forth in Clark and interrupts abandonment.

CONCLUSION

In summary, we find sending a letter to all parties scheduling a discovery conference under Louisiana District Court Rule 10.1 constitutes a step in the prosecution or defense of the action. Rule 10.1 requires a discovery conference prior to filing any discovery motion, and discovery motions have the effect of hastening the matter toward judgment. Thus, scheduling a Rule 10.1 conference is a necessary part of the discovery motion process, and a necessary step to hasten a matter toward judgment when a party has failed to comply with discovery requests. Consequently, we reverse the judgment of the Court of Appeal and remand to the District Court for further proceedings.

DECREE

For the foregoing reasons, the judgment of the Court of Appeal is reversed and the matter remanded to the District Court for further proceedings.

REVERSED; REMANDED.

GUIDRY, Justice, dissents and assigns reasons.

GUIDRY, Justice,

dissents and assigns reasons.

liFor the following reasons, I conclude the majority erred in reversing the lower courts to find the suit filed by the Louisiana Department of Transportation and Development (“DOTD”) was not abandoned under La.Code Civ. Proc. art. 561.

The rules governing abandonment of an action are set forth in La.Code Civ. Proc. Art. 561, which provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, ...
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Unlike the majority, I find no merit in DOTD’s assertion that the efforts of Oilfield Heavy Haulers, L.L.C. (“OHH”) to schedule a discovery conference constituted a “step” in defense of its action sufficient to interrupt the tolling of the three-year abandonment period under La. Code Civ. Proc. art. 561. Although the scheduling of a discovery conference was required under Rule 10.1 of the Louisiana District Court Rules, the informal correspondence constituted an extrajudicial effort not considered sufficient to interrupt the abandonment delay. Clark v. State Farm Mut. Auto. Ins. Co., 00-3070, p. 16 (La.5/15/01), 785 So.2d 779, 790.

DOTD’s remaining claim was pretermit-ted by the majority’s determination that OHH’s efforts to schedule a discovery conference sufficiently interrupted the tolling of the three-year abandonment delay. DOTD urges, in the alternative, that its action was not abandoned because its discovery responses sent to OHH constituted a “step” sufficient to avert abandonment of the action. I also find this argument to be without merit.

La.Code Civ. Proc. art. 561 provides that formal discovery sufficient to constitute a “step” sufficient to preclude abandonment must be “served on all parties.” (emphasis added). It is undisputed that DOTD’s discovery responses were not served on all parties. DOTD asserts its actions stemmed from an “inadvertent failure.” However, it is important to note that the mere intention to take a “step” as contemplated under the statutory rule without having actually complied with the rules is insufficient to interrupt the abandonment period. Benjamin-Jenkins v. Lawson, 2000-0958, p. 4 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, 895, writ denied, 2001-1546 (La.9/14/01), 796 So.2d 681. In other words, DOTD simply failed to satisfy the explicit requirements of La.Code Civ. Proc. art. 561 to preclude abandonment.

I concede dismissal of a lawsuit is a harsh remedy. However, in the instant case, DOTD made virtually no effort after it filed suit in 2006 to pursue its action. Nothing it did complied with La.Code Civ. art. 561 to prevent abandonment. When DOTD failed to timely respond to OHH’s discovery requests in April 2007, OHH sent a letter seeking compliance and the scheduling of a discovery conference. The following month, DOTD served its responses on OHH, but neglected to serve the remaining parties. Thereafter, no action was taken in the case until April 2010, one |smonth short of three years, when DOTD sought to propound discovery to the defendants.

Abandonment balances the laudable goal of ensuring every litigant has his or her day in court with the policy that lawsuits, once filed, should be prosecuted without unreasonable delay. Clark, 00-3070, p. 10; 785 So.2d at 787.

Accordingly, I respectfully dissent and would affirm the ruling of the court of appeal.

      . Finding this conclusion dispositive of the case, we pretermit discussion of DOTD’s other arguments.

        . See, e.g., Compensation Specialties, L.L.C. v. New Eng. Mut. Life Ins. Co., 08-1549, p. 10 (La.App. 1 Cir. 2/13/09); 6 So.3d 275, 282, writ denied, 09-0575 (La.4/24/09); 7 So.3d 1200 (letter confirming extension of time for discovery); Hica Steel Foundry & Upgrade Co. v. Arklatex Envtl. Consultants, Inc., 39,460, p. 8 (La.App. 2 Cir. 4/6/05); 899 So.2d 802, 807 (letter suggesting a meeting to develop a discovery plan); Naccari v. Namer, 01-2410, p. 4-5 (La.App. 4 Cir. 2/6/02); 809 So.2d 1157, 1160 (letter requesting more complete answers to discovery).

      . Jackson v. Moock, 08-1111, p. 7 (La.App. 1 Cir. 12/23/08); 4 So.3d 840, 844-45; see Barrots v. Burrus, 02-1367, p. 4-5 (La.App. 3 Cir. 6/11/03); 854 So.2d 941, 944, writ denied, 03-1984 (La.10/31/03); 857 So.2d 486 ("[S]imply discussing or disputing taking depositions was not enough to constitute a step in prosecution.”).

      . Appellate courts have repeatedly treated motions to compel discovery as steps in the prosecution of an action. See Dunn v. City of Kenner, 08-378, p. 8 (La.App. 5 Cir. 3/26/09); 11 So.3d 1115, 1119, rev’d on other grounds, 09-1108 (La.9/18/09); 17 So.3d 400; Mouton v. Patch, 02-0126, p. 4 (La.App. 3 Cir. 6/5/02); 819 So.2d 1153, 1156; Maddie v. Fidelity Nat’l Bank, 93-2308, p. 2 (La.App. 1 Cir. 8/25/94); 641 So.2d 1098, 1099 (per curiam).