United States District Court, S.D. Mississippi, Southern Division
KIMBERLY HENLEY, on behalf of herself and all others similarly situated PLAINTIFF
BILOXI H.M.A., LLC; COMMUNITY HEALTH SYSTEMS, INC.; and JOHN AND JANE DOES 1 THROUGH 25 DEFENDANTS
ORDER DENYING WITHOUT PREJUDICE PLAINTIFF KIMBERLY
HENLEY'S PLACEHOLDER MOTION  FOR CLASS
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is Plaintiff Kimberly Henley's Placeholder
Motion  for Class Certification filed on August 28, 2019.
Defendants Biloxi H.M.A., LLC, Community Health Systems,
Inc., and John and Jane Does 1 through 25 filed a Response
 on November 15, 2019, to which Plaintiff replied on
November 21, 2019. After review of the Motion, the record,
and relevant legal authority, the Court finds that the
Placeholder Motion  for Class Certification is premature
under Local Uniform Civil Rule 23. For this reason, the
Motion should be denied without prejudice and Plaintiff
should be given leave to reassert a motion for class
certification at the time directed by the case management
Kimberly Henley (“Henley”) filed the Complaint in
this case on August 27, 2019, asserting a single claim for
declaratory relief. Compl. . Specifically, she sought a
finding that Defendants Biloxi H.M.A., LLC d/b/a Merit Health
Biloxi, Community Health Systems, Inc., and John and Jane
Does 1 Through 25 (collectively “Defendants”)
owed a duty to disclose a surcharge that is billed to
emergency care patients in advance of receiving treatment or
services that would trigger such a charge. Id. at
August 28, 2019, Henley filed the present Placeholder Motion
 for Class Certification. She requests that the Court
certify a class in accordance with Federal Rule of Civil
Procedure 23 on behalf of herself and all other persons
similarly situated. Placeholder Mot. for Class Certification
 at 1. Plaintiff proposes a class of
All individuals who, within the past three years, presented
at a Merit Health hospital in Mississippi and were billed a
facility fee identify [sic] with the CPT Code of 99281,
99282, 99283, 99284, or 99285.
Id. at 3.
Rule of Civil Procedure 23 sets forth four requirements for
class certification: (1) the class must be so numerous that
joinder of all members is impracticable; (2) there must be
questions of law or fact common to the class; (3) the claims
or defenses of the representative parties must be typical of
the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class. Fed.R.Civ.P. 23.
asserts that the first requirement of numerosity is satisfied
because “over 155, 000 patients visited the emergency
departments of Merit Health's six hospitals in the
Jackson/Vicksburg area in the year 2016 alone.”
Placeholder Mot. for Class Certification  at 3. She
alleges that Defendants' standard practice was to bill
emergency room patients in Mississippi a hidden surcharge set
at one of five levels based upon the patient's condition.
Id. Henley's Motion contends that the common and
shared issues of the class were whether Defendants had a duty
to disclose the surcharge prior to providing the treatment
and services that would trigger the charge. Id.
Henley maintains that the requirement of typicality is also
present because she “was an emergency room patient who
received treatment at one of Defendants' emergency room
facilities and who was billed a Surcharge in addition to the
charges for the individual items of treatment and services
provided during her visit.” Id. at 3-4.
Finally, Henley reasons that she and her counsel can
adequately represent the class because of “the interest
shown by Plaintiff and her legal representatives who have
substantial class action litigation experience.”
Id. at 4.
Henley's Motion also requests that the Court
“continue the instant motion until a discovery schedule
and briefing deadlines are established by the Court in
connection with the parties' submission of a proposed
case management order.” Id. Citing a decision
by the United States Court of Appeals for the Seventh
Circuit, Henley asserts that a placeholder motion was
necessary to protect the putative class from any attempt by
Defendants to “buy off the named plaintiffs” and
moot the class. Id. at 2. Henley asks that the
merits of her Motion not be considered by the Court until
there has been an opportunity to complete discovery on class
issues and file supplemental briefing. Id. at 2.
Response in Opposition contends that Henley's Placeholder
Motion for Class Certification should be denied without
prejudice as unnecessary and premature. Resp. in Opp'n
 at 2. Defendants argue that pursuant to Local Uniform
Civil Rule 23 (“Local Rule 23”), Henley should
have waited to file her Motion for Class Certification until
after the entry of a case management order. Id. at
3. Because Local Rule 23 sets forth the time for filing a
class certification motion, Defendants maintain that
Henley's Placeholder Motion was unnecessary. Id.
at 4. Further, according to Defendants, the rationale Henley
advances for the risk that the claims may become moot is
belied by United States Supreme Court precedent. Id.
reply, Henley contends that the Motion for Class
Certification should be granted on the merits. Reply  at
Henley's Motion is premature ...