118 F. Supp. 3d 88
D.D.C.2015Background
- Rabbi Bernard (Bernard) Freundel, Kesher Israel's longtime rabbi and supervising rabbi of the National Capital Mikvah (NCM), secretly filmed women using the mikvah; he pled guilty in D.C. criminal court to multiple counts of voyeurism.
- Two related class actions were filed in D.C. Superior Court (Doe 1 and Doe 2) against Kesher Israel, NCM, and the Rabbinical Council of America (RCA) for negligence and vicarious liability; the proposed classes differ (Doe 1: women recorded; Doe 2: all mikvah users 2005–2014).
- Defendants removed both suits to federal court under the Class Action Fairness Act (CAFA); plaintiffs moved to remand invoking CAFA’s exceptions for predominantly local controversies, and sought limited jurisdictional discovery on class citizenship.
- Limited discovery produced synagogue membership records and some RCA conversion residency data; combining these sources the district court drew reasonable inferences that at least one-third (but less than two-thirds) of putative class members were D.C. citizens.
- The court found the amount-in-controversy exceeded $5,000,000 based on analogous voyeurism damages, and concluded the “interest-of-justice” factors (forum nexus, local law governing claims, local harm) favored remand.
- Holding: the court remanded both cases to D.C. Superior Court under CAFA’s interest-of-justice exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CAFA removal amount-in-controversy satisfied | Plaintiffs did not plead damages; contest defendants’ amount | Defendants relied on analogous voyeurism settlements/judgments to plausibly allege >$5M | Court found defendants’ allegation plausible and, when contested, satisfied by preponderance — amount-in-controversy met |
| Whether CAFA "interest-of-justice" exception numerical threshold met ( >1/3 and <2/3 local citizens) | At least one-third of class members are D.C. residents based on Kesher Israel membership and RCA conversion records | Defendants argued many users (students, visitors) are non-D.C. residents and data is transient or inconclusive | Court drew reasonable inferences from available data and found ~47% D.C. residents — numerical threshold satisfied |
| Proper class definition for citizenship analysis (Doe 1 vs Doe 2) | Use plaintiffs’ proposed class definitions (Doe 1: filmed women; Doe 2: all mikvah users) | Defendants urged narrowing (e.g., only recorded women) because Doe 2 may lack standing/certification | Court declined to re-define classes pre-certification and assessed citizenship based on proposed classes as pled |
| Whether remand is warranted under CAFA’s “interest-of-justice” factors | Plaintiffs: claims are fundamentally local (events, parties, law), forum has distinct nexus, and remand is appropriate | Defendants: crimes have national attention and many victims outside D.C., so federal adjudication appropriate | Court held factors (locality of acts, governing law, forum nexus, lack of forum-shopping) favor remand and returned cases to D.C. Superior Court |
Key Cases Cited
- Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014) (plaintiff’s complaint need not state amount; defendant’s notice need only plausibly allege amount in controversy)
- Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013) (CAFA jurisdictional requirements: >100 class members, minimal diversity, >$5M in controversy)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (court must decide jurisdiction before reaching merits)
- Greenwich Fin. Servs. Distressed Mortgage Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23 (2d Cir. 2010) (CAFA exception framework and burdens)
- Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564 (5th Cir. 2011) (use of common-sense presumptions in assessing proposed class citizenship for CAFA exceptions)