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Nazario v. Professional Account Services, Inc.

United States District Court, M.D. Florida, Fort Myers Division

March 29, 2017

ELIAJALYN NAZARIO, individually and on behalf of all others similarly situated, Plaintiff,

          OPINION AND ORDER [1]


          This matter comes before the Court on Defendants' Motion to Dismiss (Doc. #45) filed on February 14, 2017. Plaintiff Eliajalyn Nazario (Plaintiff or Nazario) filed a response in opposition (Doc. #48) on March 15, 2017. For the reasons set forth below, the motion is granted in part and denied in part.


         Hospital liens act as a claim against a personal injury recovery that a former patient might recover from a tortfeasor that caused the patient's injuries. The liens are an effort by hospitals to get paid for the services they provide. The Florida Hospital Lien Act was enacted in 1951 and repealed in 1971, but liens may now exist by virtue of a county ordinance. See Palm Springs General Hospital, Inc. of Hialeah v. State Farm Mut. Auto. Ins. Co., 218 So.2d 793 (Fla. 3d DCA 1969), decision aff'd, 232 So.2d 737 (Fla. 1970) (decided under the Hospital Lien Act, enacted in 1951 and repealed in 1971 but later adopted as a Dade County ordinance); Shands Teaching Hosp. and Clinics, Inc. v. Mercury Ins. Co. of Florida, 97 So.3d 204 (Fla. 2012). This case involves whether Defendants had the authority to file hospital liens for Plaintiff's (and others) unpaid hospital charges.

         On or about November 7, 2015, Nazario was injured in a motor vehicle accident and treated at Lehigh Regional Medical Center. (Doc. #37, ¶¶ 22-23). Lehigh Regional apparently billed Plaintiff $3, 374.68 for the medical services she was provided. On January 11, 2016, Lehigh Regional, through Defendant Professional Account Services, Inc. (PASI), which is a debt collection agency, filed a “Notice of Hospital Lien” against Allstate Insurance for the services provided to Nazario at Lehigh Regional in the amount of $3, 374.68 in the official records of Lee County, Florida.[2] (Doc. #37, Ex. A, “the Lien”). The Lien was subsequently mailed to Plaintiff with a cover letter. (Id. at ¶ 29).

         Plaintiff alleges that Defendants created and filed hospital liens against Lehigh Regional's former patients' third-party liability or other insurance benefits to collect on outstanding debts owed for the hospital's services without the statutory authority to do so. On October 18, 2016, Plaintiff filed a nine-count Class Action Complaint (Doc. #1), and is currently proceeding on a nine-count Second Amended Complaint (Doc. #37), alleging that the hospital liens constitute an attempt to collect a debt in violation of the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. (FCCPA); the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. (FDUTPA); and the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA).

         Upon information and belief, Nazario alleges that it is Defendants' routine practice to treat a patient, and then file a lien. (Doc. #37, ¶ 25). Plaintiff alleges that these liens are “counterfeit” and “illegal” because only non-profit, public hospitals operated by Lee Memorial Health System (which Lehigh Regional is not) are legally authorized to file hospital liens pursuant to a special act - Lee County's hospital lien act, Ch. 78-552, §§ 1-7, at 185-87, Laws of Fla. For Lee Memorial Health Sys. (Id. at ¶ 1). Plaintiff believes that Defendants have made hundreds, if not thousands, of similar communications in an attempt to collect consumer debts from Florida consumers. (Id. at ¶ 32). Therefore, Nazario files this suit on behalf of a class consisting of:

(i) all Florida citizens (ii) who were the subject of a counterfeit lien recordation by LEHIGH REGIONAL and/or PROFESSIONAL ACCOUNT SERVICES, INC. (iii) in an attempt to collect a debt incurred for medical bills (iv) during the five year period prior to the filing of the original complaint in this action through the date of class certification.

(Id. at ¶ 35).


         Defendants move to dismiss the Second Amended Complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted on multiple grounds. First, and most importantly, Defendants assert that Plaintiff's jurisdictional allegations are deficient. Defendants state that Plaintiff alleges diversity, federal question, and supplemental jurisdiction, none of which is applicable or sufficiently pled.

         I. Subject Matter Jurisdiction

         Under a Rule 12(b)(1) motion, a claim's subject matter jurisdiction may be challenged both facially and factually. McMaster v. United States, 177 F.3d 936, 940 (11th Cir. 1999). According to the Eleventh Circuit, in cases such as this, facial attacks “require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true.” Id.

         Plaintiff alleges one count of a violation of federal law against PASI - the FDCPA (Count 3) - and the remaining eight counts allege violations of Florida's counterpart to the FDCPA, the FCCPA, as well as violations of FDUTPA.[3] The Court clearly has federal question jurisdiction over the FDCPA claim, and may exercise supplemental jurisdiction over the remaining state law claims “that are so related to claims in the action within [the court's] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). Such power arises where the state and federal claims “derive from a common nucleus of operative fact” and “are such that [the plaintiff] would ordinarily be expected to try them all in one judicial proceeding.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (11th Cir. 1966). A state cause of action which requires more proof than the federal claim is still within the court's supplemental jurisdiction if “both claims clearly arise from the same set of facts.” Milan Exp., Inc. v. Averitt Exp., Inc., 208 F.3d 975, 980 (11th Cir. 2000); Tamiami Partners, Ltd. ex rel. Tamiami Dev. Corp. v. Miccosukee Tribe of Fla., 177 F.3d 1212, 1223-24 (11th Cir. 1999).

         That power, however, “need not be exercised in every case in which it is found to exist, ” as supplemental jurisdiction is a “doctrine of discretion, not of plaintiff's right.” Gibbs, 383 U.S. at 726. “The breadth of discretion afforded federal courts in these cases has been codified by section 1367(c), ” which “provides for four occasions when a federal court may decline to exercise supplemental jurisdiction otherwise within its power.” Palmer, 22 F.3d at 1569. Specifically:

district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if - (1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction; or (4) in ...

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