HOFFMAN v. LUMINA HEALTH PRODUCTS, INC.
Filing
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OPINION. Signed by Judge Stanley R. Chesler on 12/17/13. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HAROLD M. HOFFMAN, individually and
on behalf of those similarly situated,
Plaintiff,
v.
LUMINA HEALTH PRODUCTS, INC.
Defendant.
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Civil Action No. 13-04936 (SRC)
OPINION
CHESLER, District Judge
This matter comes before the Court upon the motion filed by Defendant Lumina Health
Products, Inc. (“Defendant”) for judgment on the pleadings, pursuant to Federal Rule of Civil
Procedure 12(c). [Docket Entry 13.] The motion was returnable on December 2, 2013, and thus,
pursuant to Local Civil Rule 7.1(d), opposition to the motion was due on or before November 18,
2013. On November 17, 2013, Plaintiff Harold M. Hoffman, Esq. (“Plaintiff”) filed a request,
pursuant to Local Civil Rule 7.1(d)(5), to automatically adjourn Defendant’s motion date to
December 16, 2013, and thus his opposition date to December 2, 2013. [Docket Entry 15.]
Despite this request, Plaintiff did not oppose the motion but rather, by letter dated and filed
November 27, 2013, informed the Court that he does not intend to oppose the motion. [Docket
Entry 16.] In what can only be characterized as a misguided attempt at magnanimity, Plaintiff
stated that he “can discern no justification for occupying the resources of the Court” because this
Court lacks subject matter jurisdiction over the action. 1 To date, Plaintiff has not filed an
opposition.
In light of Plaintiff’s express statement that he will not oppose the motion for judgment
on the pleadings because he feels that the case must be remanded, and his continuing failure to
oppose the motion despite the Court’s determination otherwise, the Court construes Plaintiff’s
conduct as a failure to prosecute this action. Therefore, pursuant to Federal Rule of Civil
Procedure 41(b), the Court will grant Defendant’s motion.
The Court also recognizes Defendant has requested that Plaintiff pay the costs and fees
associated with opposing the remand motion and filing the motion for judgment on the
pleadings. [Docket Entry 17.] The Court will deny this request. The Court cannot conclude that
Plaintiff’s argument in support of remand was specious or frivolous, as the Third Circuit has yet
to issue direct guidance on the legal issues raised by Plaintiff and this Court is not bound by the
decisions of other judges in this District. Defendant also argues that because an Answer was
filed after the remand motion was denied, Plaintiff would be required under Rule 41(a) to obtain
Defendant’s consent before voluntarily dismissing this action, which Defendant would not
provide unless Plaintiff agreed to pay costs and fees. It is unclear why Defendant chose to
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Plaintiff had filed a motion to remand this action shortly after Defendant removed the case from
the Superior Court of New Jersey pursuant to the Class Action Fairness Act (“CAFA”). The
Court denied the remand motion by Order dated October 24, 2013. Plaintiff’s November 27
letter, while expressly disclaiming that it is doing so, attempts to reargue the merits of the
remand motion. To this end, Plaintiff cites Shady Grove Orthopedic Associates, P.A. v. Allstate
Insurance Co., 559 U.S. 393 (2010), and County of Nassau, N.Y. v. Hotels.com, LP, 577 F.3d
89 (2d Cir. 2009). Shady Grove was a case filed in federal court that examined the interplay of
federal Rule 23 and New York’s Civil Practice Law and Rules. See 559 U.S. at 397-98. Its
principles are not applicable here. To the extent the reasoning applied in County of Nassau is
inconsistent with the Court’s Order, the Court declines to adopt the Second Circuit’s analysis for
the reasons set forth by Judge Standish in Lewis v. Ford Motor Co., 685 F. Supp. 2d 557, 565 &
n.10 (W.D. Pa. 2010) (“We also find the . . . analysis in County of Nassau inconsistent with
general CAFA case law which assumes that a court has jurisdiction based on the allegations of
the complaint alone when the case is originally filed . . . .”).
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concurrently file an Answer and Rule 12(c) motion based on failure to state a claim – as opposed
to just filing a motion to dismiss pursuant to Rule 12(b)(6) – if not to deliberately put Plaintiff in
the exact position that Defendant now complains of. See Caprio v. Healthcare Revenue
Recovery Group, LLC, 709 F.3d 142, 146-47 (3d Cir. 2013) (“a motion for judgment on the
pleadings based on” failure to state a claim and a Rule 12(b)(6) motion are “reviewed under the
same standards”). In all events, however, Defendant has failed to provide sufficient grounds for
this Court to compel Plaintiff to pay the fees and costs associated with this matter, and
Defendant’s request will therefore be denied.
An appropriate form of Order accompanies this Opinion.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: December 17th, 2013
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