Baptist Hosp. of Miami, Inc. v. Demario

• Decision Date: 06 September 1995
• Docket Number: No. 95-557,95-557
• Citation: 661 So.2d 319
• Parties: 20 Fla. L. Weekly D2044 BAPTIST HOSPITAL OF MIAMI, INC., Appellant, v. Michael DEMARIO, Appellee.
• Court: Florida District Court of Appeals

Page 319

661 So.2d 319

20 Fla. L. Weekly D2044

BAPTIST HOSPITAL OF MIAMI, INC., Appellant, v. Michael DEMARIO, Appellee.

No. 95-557.

District Court of Appeal of Florida,

Third District.

Sept. 6, 1995.

Rehearing Denied Nov. 1, 1995.

Isicoff & Ragatz and Eric Isicoff, Miami, for appellant.

Russo & Talisman and Patrice Talisman, Coconut Grove; Lyons and Farrar, Coral Gables, for appellee.

Before JORGENSON, COPE and GREEN, JJ.

COPE, Judge.

Baptist Hospital appeals an order denying its motion to vacate default. We affirm in part and reverse in part.

Michael Demario brought a class action lawsuit against Baptist Hospital, contending that he had been overcharged when he requested a copy of his medical records from the hospital. He alleged that the hospital calculated the copying charge at a rate which exceeds the amount allowed by subsection 395.3025(1), Florida Statutes (1993). He also alleged that since the hospital transmitted its calculation of the charge for medical records to him by form letter, this means that the hospital has been systematically overcharging persons who request copies of their medical records. Plaintiff requested certification of a class of similarly situated plaintiffs who had been overcharged. He requested a declaratory judgment and other relief.

Plaintiff served the hospital with the complaint, but the suit papers were misrouted within the hospital. A default order was entered, which was sent to the hospital's registered agent. Thereafter, plaintiff served the hospital's registered agent by mail with a request for production of documents, interrogatories, and a motion and notice of hearing for class certification. Without obtaining responses to any of the discovery, plaintiff proceeded to a hearing on class certification. A hospital employee had continued to misroute the papers, and the hospital still did not appear in the litigation to defend. On the basis of the default, the trial court certified a class.

A subsequent notice of deposition alerted the hospital to the existence of the lawsuit, and the default. The hospital moved to set aside the default. A successor judge heard the motion to set aside default and denied it. The hospital has appealed.

Plaintiff has made the choice to bring this case as a class action. He seeks a declaratory judgment which will bind the class and the hospital, and desires that the alleged overcharges be refunded to the class. The predecessor judge certified the class by default. This was apparently done on the assumption that the default admitted the allegations of the class action complaint, ¹ and that therefore the plaintiff was entitled to class certification without further ado.

We do not think that a class can be certified on the basis of a default. ² "An action, of course, is not maintainable as a class suit merely because it is designated as such in the pleadings; whether it is or is not depends upon the attending facts." 3B James W. Moore, Moore's Federal Practice p 23.02-2, at 23-78 (2d ed. 1995)(footnote omitted). "In determining whether an action brought as a class action is to be so maintained, the trial court should carefully apply the criteria ... for the maintenance of a class action to the facts of the case...." Id. p 23.50, at 23-411 (footnote omitted); see also Kass v. Young, 67 Cal.App.3d 100, 136 Cal.Rptr. 469 (1977) (disapproving class action judgment by default).

A class action may be certified only after the trial court determines, on the basis of a rigorous analysis, that the elements of the class action rule have been satisfied. See Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). "[A]ctual, not presumed, conformance with Rule 23(a) [prerequisites to a class action] remains ... indispensable." Id. at 160, 102 S.Ct. at 2372. " 'The decision on whether or not to certify a class should be made carefully, on the basis of sufficient information....' " Barton-Malow Co. v. Bauer, 627 So.2d 1233, 1235 (Fla. 2d DCA 1993)(quoting Manual on Complex Litigation 2d Sec. 30.1 (1985)). That is so because the granting of class certification considerably expands the dimensions of the lawsuit, and commits the court and the parties to much additional labor over and above that entailed in an ordinary private lawsuit. There must be a sound basis in fact, not supposition, that the requirements of the class action rule have been satisfied. The plaintiff bears "the burden of establishing that a case is certifiable as a class action...." Bishop v. Committee on Professional Ethics and Conduct, 686 F.2d 1278, 1288 (8th Cir.1982) (citations omitted).

Here, the plaintiff decided to proceed to the class action certification hearing without placing facts in the record which would allow the trial court to apply the criteria of Florida Rule of Civil Procedure 1.220 in a reasoned manner. At present it cannot even be determined that the numerosity requirement of Rule 1.220 will be met, much less that the other requirements of the Rule have been satisfied. The bare fact that a default has been entered is not a substitute for the factual inquiry and exercise of judicial discretion called for by the class action rule. Since a class action cannot be certified on the basis of a default, the class certification must be vacated. This ruling is without prejudice to the plaintiff to renew the motion for class certification upon a...