United States District Court, D. New Jersey
DAVID KINLOCK and JOSE SALCEDO, on behalf of themselves and all others similarly situated, Plaintiffs,
HEALTHPLUS SURGERY CENTER, LLC, Defendant.
ORDER ADOPTING REPORT AND RECOMENDATION
WILLIAM J. MARTINI, U.S.D.J.
MATTER comes before the Court upon the Report and
Recommendation of Magistrate Judge Mark Falk. ECF No. .
Plaintiffs David Kinlock and Jose Salcedo initially filed
their complaint in New Jersey Superior Court and Defendant
HealthPlus Surgery Center, LLC (“HealthPlus”)
removed to this Court. In response to Plaintiffs' motion
for remand, Judge Falk issued a Report and Recommendation,
which, for the reasons set forth below, the Court
ADOPTS in full.
is a surgical center located in Saddle Brook, New Jersey. ECF
No. [1-1], Exhibit B (“Compl.”) ¶ 10.
Plaintiffs are New Jersey citizens and former patients at
HealthPlus who underwent surgical procedures between January
1, 2018 and September 7, 2018. Id. ¶¶ 7-8.
On September 7, 2018, the New Jersey Department of Health
ordered HealthPlus to close due to its failure to properly
maintain sterile medical hardware and instruments.
Id. ¶ 11. In December 2018, HealthPlus mailed
form notices to approximately 3, 700 former
patients-including Plaintiffs-notifying the recipients of
their potential exposure to HIV, Hepatitis B, and Hepatitis C
(“the Notice”). Id. ¶¶ 13- 14.
The Notices explained that due to HealthPlus'
“lapses in infection control in sterilization/cleaning
instruments” they would offer recipients a
“single ‘free' blood test.”
Id. ¶¶ 15-17. The Notices stated that
“it is important to know your infection status
regarding these diseases, because there are medical
treatments available.” Id. The Notices did not
elaborate on any specific treatment options for those who
on these facts, Kinlock filed this putative class action on
behalf of approximately 3, 700 HealthPlus patients on January
3, 2019, alleging that the “single free blood
test” is wholly inadequate in addressing the needs and
safety of the putative class. Id. ¶¶ 1-2.
Plaintiffs seek injunctive relief in the form of a
court-administered medical monitoring program for class
members. Id. ¶ 5. Plaintiffs seek to represent
“[a]ll New Jersey citizens who received a form notice
from Defendant which was identical or substantially similar
to [the Notices].” ECF No. [1-1] at 30.
January 23, 2019, HealthPlus removed the case to this Court
invoking federal diversity jurisdiction under CAFA.
Plaintiffs moved to remand on January 28, 2019 on the grounds
that the requirements for jurisdiction under CAFA are not
satisfied because all the parties involved are New Jersey
citizens. On April 23, 2019, Judge Falk issued a Report and
Recommendation recommending remand. ECF No. . HealthPlus
objected, ECF No. , and Plaintiffs filed a response to
HealthPlus' objections, ECF Nos.  & .
STANDARD OF REVIEW
to remand to state court are dispositive motions. In re
U.S. Healthcare, 159 F.3d 142, 146 (3d Cir. 1998). With
respect to dispositive motions, such as Plaintiffs'
remand motion here, the district court reviews de
novo those portions of the magistrate judge's report
and recommendation to which a litigant objects. 28 U.S.C.
§ 636 (b)(1)(C); Fed.R.Civ.P. 72(b). New Jersey Local
Rule 72.1(c)(2) further requires that objections “shall
specifically identify the portions of the . . .
recommendations or report to which objection is made and the
basis of such objection.” N.J.L.R. 72.1(c)(2).
The Motion to Remand
asserting federal jurisdiction has the burden of showing, at
all stages of the litigation, that the federal court has
jurisdiction and that the case is properly before the federal
court. Judon v. Travelers Prop. Cas. Co. of Am., 773
F.3d 495, 500 (3d Cir. 2014). Federal courts are courts of
limited jurisdiction and have jurisdiction over cases that
either present a question of federal law or complete
diversity among the parties. 28 U.S.C. §§ 1331-32.
The Class Action Fairness Act of 2005 (“CAFA”),
however, created an exception to this strict rule and allows
for jurisdiction in federal courts over class actions when
three requirements are met: (1) the amount in controversy
exceeds $5, 000, 000, (2) the parties are minimally diverse,
and (3) the class consists of at least 100 or more members.
Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345,
1348 (2013); Gallagher v. Johnson & Johnson Consumer
Co. Inc., 169 F.Supp.3d 598, 601 (D.N.J. 2006).
the Court finds that Magistrate Judge Falk issued a thorough,
comprehensive, and well-reasoned Report and Recommendation.
The Report examined the jurisdictional question in detail and
recommended that the Court find it lacks jurisdiction. ECF
No. . HealthPlus articulates three overlapping
objections, which, at bottom, urge the Court to find that
even if the class definition explicitly limits
Plaintiffs' class to New Jersey citizens, Plaintiffs have
impliedly pleaded a class that includes non-New Jersey
residents based on certain general references to the Notice
recipients in the Amended Complaint. ECF No.  at 6-13. In
response, Plaintiff argues that Defendant's objection
simply “recycle” its prior arguments articulated
in opposition to remand that improperly urge the Court to
ignore Plaintiff's class definition as set forth in the
Amended Complaint. ECF No. .
Court finds Defendant's objections without merit. A
plaintiff is the master of his complaint and may construct a
proposed class however he so chooses, including to
intentionally to avoid jurisdiction under CAFA. Morgan v.
Gay, 471 F.3d 469, 474 (3d Cir. 2006); Kendall v.
CubeSmart L.P., No. 15-6098, 2015 WL 7306679, at *3
(D.N.J. Nov. 19, 2015). Whether a court has diversity
jurisdiction depends on the citizenship of the proposed class
members, which is determined by reference to the proposed
class definition. Gallagher, 169 F.Supp.3d at 602-04
(citing In re Hannaford Bros. Co. Customer Data Sec.
Breach Litig., 564 F.3d 75 (1st Cir. 2009)).
as Judge Falk's Report and Recommendation notes,
Plaintiff places two contingencies on class membership: (1)
New Jersey citizenship, and (2) receiving a Notice from
HealthPlus. The plain language of the Plaintiffs'
putative class definition leaves no room for uncertainty
about the requirements for class membership, and the Court
need not look beyond the putative class definition. However,
even if the Court were to look to the other allegations in
the Amended Complaint, Defendant's argument that
Plaintiffs' reference to the Notice recipients creates
diversity belies the plain language of Plaintiffs'
pleading: “This is a class action brought on behalf of
the over 3, 700 New Jersey citizens who received a
form notice form Defendant . . . .” Compl. ¶ 1.
The Court declines Defendant's invitation to contort
“stray allegations from other parts of the pleading to
define the class” when the class definition expressly
limits class membership to ...