Herrera et al v. JFK Medical Center Limited Partnership et al

Filing 6

ORDER: Plaintiffs' Motion for Class Certification and Request for Stay of Briefing and Consideration of the Motion 3 is DENIED without prejudice. Signed by Judge James S. Moody, Jr on 9/22/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARISELA HERRERA and
LUZ SANCHEZ,
Plaintiffs,
v.

Case No: 8:14-cv-2327-T-30TBM

JFK MEDICAL CENTER LIMITED
PARTNERSHIP and HCA HOLDINGS,
INC.,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Plaintiffs’ Motion for Class
Certification and Request for Stay of Briefing and Consideration of the Motion and
Incorporated Memorandum of Law (Dkt. #3). Upon review and consideration, the Court
denies the motion to certify class as premature and denies the motion to stay briefing as
moot.
On or about August 18, 2014, Plaintiffs Marisela Herrera and Luz Sanchez
commenced a putative class action alleging exorbitant charges for radiological services
against Defendants HCA Holdings, Inc. and JFK Medical Center Limited Partnership d/b/a
JFK Center in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough
County, Florida. 1

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On September 17, 2014, Defendant removed this case alleging jurisdiction under the Class Action Fairness
Act, 28 U.S.C. § 1332(d) and § 1453.

On August 25, 2014, prior to Defendants filing a response to the complaint,
Plaintiffs filed their Motion for Class Certification. The Motion states that it is being filed
at the outset of the litigation to “prevent a situation where Defendants might pay amounts
owed to the individual plaintiffs or waive any amounts purportedly owed to them by the
individual plaintiffs in an attempt to deprive plaintiffs standing and prevent this class action
suit from being adjudicated.” Plaintiffs cite to Damasco v. Clearwire, 662 F.3d 891, 89697 (7th Cir. 2011) for this proposition. In Damasco, the Seventh Circuit noted that
“[c]lass-action plaintiffs can move to certify the class at the same time that they file their
complaint. The pendency of that motion protects a putative class from attempts to buy off
the named plaintiffs….” Id. Therefore, Plaintiffs request that the Court stay the briefing
and consideration of the Motion for an unspecified amount of time.
Plaintiffs’ Motion is premature.

It was filed prior to a response from the

Defendants and prior to the commencement of discovery. Plaintiffs’ lone citation to
Damasco to justify their strategy in filing the motion at this early juncture is unpersuasive.
Damasco is not binding on this Court and it is doubtful that the Eleventh Circuit would
adopt a similar approach.

See Church v. Accretive Health, Inc., 2014 WL 1623787, at

*1-*2 (S.D. Ala. April 24, 2014) (discussing same). Further, as set forth by the court in
Accretive Health,
As the foregoing discussion demonstrates, there is precious little reason to
believe that the two-step dance Church proposes here (file a generic Rule 23
Motion at the outset of the case, then stay it for many months until class
discovery concludes and comprehensive briefs are prepared) is grounded in
any justifiable fear that the entire class action may be ripped away from her
absent such a preventive measure. The premise that a Rule 68 offer of
judgment moots a class action in the absence of a prior Rule 23 motion is a
decidedly minority view. The Eleventh Circuit has not accepted it. Plaintiff
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offers no indication that the Eleventh Circuit would ever be inclined to adopt
it, as indeed most other federal courts have not. Even district courts in the
Seventh Circuit (which propounded that minority review) appear to allow the
continued safety hatch of a two-week window after an offer of judgment is
made for the plaintiff to file a class certification motion. There is no evidence
and no reason to believe that Accretive will engage in such a frowned-upon
“picking off” strategy here. And the underlying principle that any offer of
judgment for complete relief would moot Church’s claims even if she did not
accept it has recently faced a withering attack from four U.S. Supreme Court
Justices, with no rebuttal from the others. For all of these reasons, the Court
concludes that Church’s “placeholder” Motion for Class Certification is
highly unlikely to confer any meaningful benefit or protection on plaintiff.
Id. at *2-*3.
Moreover, Plaintiffs’ strategy comes with a cost. It burdens the Court with an
obviously premature motion which would remain on the Court’s docket as pending for an
unspecified period of time. See id. at *3 (“Plaintiff’s straight-out-of-the-chute Rule 23
Motion is highly unlikely to advance her cause one iota, but is virtually certain to impose
administrative costs, unnecessary distractions, and an unhelpful drag on efficiency and
judicial economy.”).
It is therefore ORDERED AND ADJUDGED that Plaintiffs’ Motion for Class
Certification and Request for Stay of Briefing and Consideration of the Motion and
Incorporated Memorandum of Law (Dkt. #3) is DENIED without prejudice.
DONE and ORDERED in Tampa, Florida, this 22nd day of September, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2327 class cert premature.docx

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