Jane Doe 1 v. Georgetown Synagogue-Kesher Israel CongregationJane Doe 1 v. Georgetown Synagogue-Kesher Israel Congregation
Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JANE DOE 1,
EMMA SHULEVITZ,
STEPHANIE SMITH,
Plaintiffs,
v. Case No. 15-cv-00026 (CRC) GEORGETOWN SYNAGOGUE-KESHER ISRAEL CONGREGATION, et al.,
Defendants.
JANE DOE 2,
Plaintiff,
v. Case No. 15-cv-00028 (CRC) GEORGETOWN SYNAGOGUE-KESHER ISRAEL CONGREGATION, et al.,
Defendants. MEMORANDUM OPINION
For twenty-five years, Bernard Fruendel was the sole rabbi for Kesher Israel Congregation, an Orthodox Jewish synagogue in Washington, D.C. During his tenure, he advocated for the construction of a nearby mikvah—a Jewish ritual bath most frequently used by married Orthodox women as well as by women undergoing the process of converting to Judaism—and served as its supervising rabbi after it opened in 2005. Earlier this year, Fruendal pled guilty, in a District of Columbia criminal proceeding, to illicitly filming numerous women as they used the mikvah. Two sets of Freundel’s victims have brought class action lawsuits for negligence and vicarious liability against the synagogue, the mikvah, and the Rabbinical Council of North America—a professional *2 organization for Orthodox rabbis in which Fruendel held leadership positions—for allegedly failing to prevent his crimes.
Plaintiffs initially sued in the Superior Court of the District of Columbia, but the defendants removed the cases to federal court under the Class Action Fairness Act (“CAFA”). Plaintiffs now move to remand based primarily on CAFA’s “interest of justice” exception, which permits federal courts to decline jurisdiction over predominately local disputes if betwеen one-third and two-thirds of the proposed class members are citizens of the state forum. The Court allowed the plaintiffs to conduct limited jurisdictional discovery on class citizenship. Drawing reasonable inferences from the evidence presented by the parties, the Court finds that the plaintiffs have satisfied the numerical requirements of the interest-of-justice exception. The Court further concludes that these cases are fundamentally local controversies. While Fruendal’s crimes have generated wider interest and may well havе broader ramifications for the Orthodox community, these cases, at bottom, involve events, parties, and alleged harms in the District of Columbia and will be decided based solely on District of Columbia law. The Court will, accordingly, grant the plaintiffs’ motions and remand both cases to the Superior Court for District of Columbia.
I. Background
Throughout the relevant time period, 2005 to 2014, Fruendel served as the rabbi of Kesher Israel Congregation, as supervising rabbi of the National Capital Mikvah (“NCM”), and in various positions affiliated with the Rabbinical Council of America (“RCA”), including chairman of an RCA committee overseeing the standards for conversions to Orthodox Judaism. Doe 1 Pls.’ Am. Compl. ¶¶ 18, 23–26. The four named plaintiffs in these two related cases all immersed in the NCM mikvah at Rabbi Fruendel’s direction. Jane Doe 1 is a third-year student at Georgetown University Law Center who took a Jewish law seminar co-taught by Fruendel. Doe 1 Am. Comp. *3 ¶¶ 2–3. Emma Shulevitz is a 27 year-old woman who sought to convert to Orthodox Judaism under Fruendel’s supervision but eventually completed the conversion process with a different rabbi. Id. ¶¶ 4–5. Stephanie Smith is a student at Towson University in Maryland who took a clаss on faith and medical ethics taught by Fruendel. Id. ¶¶ 7–8. And Jane Doe 2 is a 24 year-old resident of Florida who Fruendel guided in a recent conversion to Orthodox Judaism. Doe 2 Compl. ¶ 2. On December 18, 2014, Doe 1, Shulevitz, and Smith filed an amended class action complaint in Superior Court for the District of Columbia alleging various torts against Kesher Israel, NCM, and RCA stemming from Fruendel’s voyeurism. Doe 1 Pls.’ Mot. to Remand at 3. [1] Doe 2 filed a similar Superior Court complaint the same day against the same defendants. Doe 2’s Mot. to Remand at 4. While the allegations in both complaints overlaр, the proposed classes differ: Doe 1’s proposed class consists of all women who Fruendel illicitly recorded during his tenure, while the proposed class in Doe 2 includes all women who used the mikvah during the same time period, regardless of whether they were recorded. [2] Rabbi Freundel pled guilty in Superior Court to 52 *4 counts of voyeurism in February 2015. Defs.’ Opp’n to Doe 1 Pls.’s Mot. to Remand Ex. A at 2. The factual proffer he signed acknowledges that police investigators found evidence that he victimized as many as 100 additional women. Id. at 8–9.
Kesher Israel and NCM removed both cases to this Court in January 2015 under the Class
Action Fairness Act (“CAFA”),
Doe 2 Compl. ¶ 25.
24, three are residents of the District of Columbia. Pls.’ Renewed Mot. to Remand, Decl. of Gunella Lilly ¶ 3. As part of the initial briefing, RCA provided data showing that 22 of the 96 womеn who converted under Fruendel’s supervision in the relevant time frame for whom it has records of residency were District of Columbia residents. Defs.’ Opp’n to Doe 1 Pls.’s Mot. to Remand, Decl. of Rabbi Michoel Zylberman at 2. None of the parties have furnished specific information regarding the citizenship of the university students, like Doe 1 and Stephanie Smith, who used the mikvah at Fruendel’s invitation. Plaintiffs now renew their motions to remand.
II. Standard of Review
To remove a case to federal court, a defendant must file a notice “‘containing a short and
plain statement of the grounds for removal,’” which is subject to the same rules that apply to the
general pleading requirements in Federal Rule of Civil Procedures 8(a). Dart Cherokee Basin
Operating Co., LLC v. Owens,
(A) the claims asserted involve matters of national or interstate interest; (B) the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States;
(C) the class action has been pleaded in a manner that seeks to avoid federal jurisdiction;
(D) the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;
(E) the number of citizens of the State in which the action was originаlly filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and (F) one or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed during the 3-year period preceding the filing of the class action.
Id. Citizenship of the proposed class members is determined as of the date the action was filed.
III. Analysis
The parties here do not dispute that the class will have more than 100 members or that the parties are minimally diverse. They primarily disagree over the proportion of the proposed class *7 members who were District of Columbia citizens when the case was filed. The Doe 1 plaintiffs also dispute whether defendants have established that the amount in controversy exceeds $5 million.
A. Amount in Controversy
To determine the amount in controversy, the claims of all named and unnamed members of
the proposed class are aggregated. Standard Fire Ins. Co. v. Knowles,
B. Applicability of CAFA’s Interest-of-Justice Exception
Remand under CAFA’s interest-of-justice exception requires that greater than one-third but
less than two-thirds of potential class members and the primary defendants be citizens of the state in
*8
which the case was originally filed.
i. Definition of the Proposed Class Defining the relevant class here is complicated somewhat by the fact that the two sets of plaintiffs allege different proposed classes. As noted above, the Doe 1 proposed class consists only of women who were illicitly reсorded by Rabbi Fruendel while using the mikvah. The Doe 2 proposed class encompasses the Doe 1 class but is larger, comprising all women who used the mikvah during Fruedel’s tenure, regardless whether they were recorded. The cases are otherwise closely related: they are grounded on the same factual allegations, were filed simultaneously, and are subject to a pending motion to consolidate by the defendants. Given the related nature of the cases, the Court need not engage in a separate citizenship analysis for еach of the two proposed classes but rather will consider both class definitions together.
The defendants urge the Court to limit the definition of the Doe 2 class to only those women
who were actually recorded. They argue that Doe 2, who alleges she
was
recorded, does not have
standing to represent members of the class who were not recorded and, therefore, the entire Doe 2
class will not qualify for class certification. While that may or may not be so, CAFA instructs the
*9
Court to assess citizenship based on the class as “proposed
or
certified.”
Defendants also contend that the Doe 2 class should be narrowed because plaintiffs who were not recorded are not entitled to relief. Again, the defendants’ argument is premature. No motions to dismiss have been filed аnd the Court is obligated in any event to determine its jurisdiction before making decisions on the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Accordingly, the Court will analyze CAFA’s citizenship requirements based on the definitions of the proposed classes contained in the plaintiffs’ complaints.
ii. Citizenship of Proposed Class Members
The D.C. Circuit does not appear to have addressed the standard for assessing class
citizenship for purposes of applying the CAFA exceptions. See McMullen,
In this case, plaintiffs argue that they have provided ample evidence that more than one- third of the potential class members are D.C. citizens. They note that common sense suggests that a substantial portion of the mikvah’s users are members of Kesher Israel and many Orthodox Jews live within walking distance of their synagogue. Doe 1 Pls.’ Reply at 6 & Ex. B. Moreover, they allege that Freundel required or strongly encouraged conversion candidates to live within the synagogue’s ritual boundary area, which is entirely within the District. Id. at 7. Plaintiffs find furthеr support for their position in the fact that 23 percent of those who converted under Fruendel’s tutelage were District of Columbia citizens. Converts, they argue, constitute only one, small *11 subgroup of NCM users and likely consists of a disproportionate number of non-District of Columbia residents as compared to other subgroups. Id. at 10.
Defendants respond that Kesher Israel members should be excluded from the citizenship calculations because Freundel was not involved in arranging the use of the mikvah by married women for ritual purification purposes аnd he did not record Kesher Israel members. Defs.’ Opp’n to Doe 1 Pls.’s Mot. to Remand at 16–17. Defendants ground these assertions on two main considerations. First, they explain that the NCM’s procedures allowed for routine users of the mikvah—such as married Kesher Israel members or other married Orthodox women in the D.C. area who regularly used the NCM for ritual purification—to set up appointments or drop in without coordinating their visits with Freundel. Id. at 16 – 17. Second, defendants contend that Fruendel’s admission in his plea agreement that he “periodically installed and removed the recording device,” id. ex. A at 8, and the statement in his criminal sentencing memorandum that “[i]t is believed that [Fruendel] brought the recording devices on each occasion that he recorded subjects, and removed the devices after he finished recording that day,” Defs.’ Opp’n to Pls.’ Renewed Mots. to Remand, Ex. A at 5, show that he likely only recorded the converts and students whose visits he proactively arranged. Both of these arguments fall short. Fruendel’s frequent installations and removals of recording equipment could easily have resulted from considerаtions—such as the battery life or storage capacity of the devices he used or his apparent desire to edit and catalog the video clips— that are irrelevant to the citizenship inquiry. See id. at 5 – 6. In fact, some evidence suggests that Fruendel did target members of Kesher Israel in addition to students and converts. For example, the sentencing memorandum states that Fruendel specifically “exploit[ed] women he knew” and that “[h]e didn’t choose random women.” Id. at 11 (quotation marks omitted). And the Doe 1 plaintiffs provide an affidavit in their reрly from a member of the congregation stating that she is “aware of *12 several instances in which Rabbi Freundel encouraged single Jewish women affiliated with Kesher Israel to use the mikvah for purposes unrelated to conversion to Judaism” and is “specifically aware that at least two of these individuals were filmed by Rabbi Fruendel.” Doe 1 Pls.’ Reply Ex. A (Affidavit of Jane Doe 3) ¶¶ 6–7. Consequently, the Court cannot exclude Kesher Israel members from its class citizenship analysis, as they clearly fall within the Doe 2 class and credible evidence exists to suggest that Fruendel may have victimized them.
When Kesher Israel members are included, the information provided by the parties, some
basic arithmetic, and common sense suggests that at least one-third of the proposed class members
are District of Columbia citizens. Although the data revealed through jurisdictional discovery is not
definitive, and the parties do not agree on the precise numbers, the Kesher Israel membership
information combined with the RCA conversion data is sufficient for the Court to draw “reasonable
inferences” about the composition of thе proposed classes.
[4]
See Bey,
The current record lacks specific information regarding the total number and citizenship of other NCM users. Defendants nonetheless argue that few of Fruendel’s students were likely District citizens because students at both Georgetown and Towson hail largely from outside the city and out-of-town visitors to the NCM likely substantially outpаced in-town visitors. As a result, they assert, scores of additional NCM users who are not citizens of the District likely fall within the class definitions. Defendants further contend that the transient nature of Kesher Israel’s membership suggests that many women whose last known address was in the District of Columbia likely moved out of the city before the complaint was filed, undercutting the utility of the membership data. Id. at 14–16. The Court is unpersuaded by all three propositions. First, it is far from clear that the subsets of women who used the NCM but were not Kesher Israel members or converts were overwhelmingly citizens of other states. The Court finds it equally plausible that a substantial number of D.C. citizens who were not members of Kesher Israel used the NCM for the same reasons that defendants argue out-of-town visitors or citizens of neighboring states would have. Because Orthodox married women who adhere to the family purity traditions have a limited period of time each month to immerse in the mikvah, and because the NCM and Fruendel were well-known and widely-respected in the Orthodox community and the NCM was open to the public seven days a week, it may have been the most cоnvenient or most attractive option for Orthodox women in D.C. who were not Kesher Israel members. Similarly, Kesher Israel provides no evidence that the transience of its membership is a one-way ratchet: members are as likely to have *14 moved from a nearby Maryland town to the District—potentially to live closer to the synagogue— as from the District to Maryland. Finally, neither party has provided particularized information regarding Fruendel’s students; statistics about the general populations of Towson and Georgetown are far too broad to be useful here. Accordingly, based on the best evidence available of class citizenship—the RCA conversion records and Kesher Israel membership records—the Court finds that the plaintiffs have met their burden to show that at least one-third of the proposed classes are more likely than not citizens of the District. [6]
iii. “Interests of Justice” Factors
The factors that the Court must consider in deciding whether to exercise jurisdiction under
included in the “interests of justice” exception almost universally militate in favor of remand. See
IV. Conclusion
Because more than one-third of the proposed class members in these related actions are likely to be citizens of the District and CAFA’s “interests of justice” factors favor it, the Court will remand these cases to Superior Court. An appropriate order accompаnies this memorandum opinion.
CHRISTOPHER R. COOPER United States District Judge Date: July 24, 2015
Notes
[1] Doe 1 also sued Georgetown University, where Freundel also taught a class, but those claims have been severed and remanded.
[2] Specifically, the Doe 1 proposed class comprises: All women who participated in an immersion ritual at the NCM/Kesher Israel Mikvah (the “immersion”): (i) while Freundel was an actual and/or apparent agent, servant, and/or employee of Kesher Israel and/or NCM, (ii) where Freundel initiated, arranged, participated in or was otherwise involved in the immersion, and (iii) who were involuntarily and secretly photographed by any means or otherwise subjected to invasions of their privacy in connection with the immersion. Doe 1 Am. Compl. ¶ 85. The Doe 2 class comprises: Any and all women who used any portion of the mikvah utilized by Kesher Israel Synagogue, also known as [NCM], at any time since 2005 to the present, including but not limited to women who used any portion of the mikvah either because Rabbi Fruendel arranged their attendance at the mikvah and/or Rabbi
[3] Plaintiffs have also invoked CAFA’s “home state” exception, which аs noted above
requires
remand when two-thirds or more of the proposed plaintiff class, and the primary defendants, are
citizens of the state in which the action was originally filed.
[4] For example, defendants object to using last known addresses as indicative of proposed class members’ citizenship. For the purposes of a “reasonable inferences” analysis for determining the applicability of CAFA jurisdiction exceptions, however, the Court views these addresses as an acceptable proxy, particularly in light of its desire—which is shared by the defendants—to limit incursions on the privacy of proposed class members.
[5] The parties calculate these ratios slightly differently based on the manual records provided by Kesher Israel. The Court has endeavored to make its own calculation.
[6] The residency data provided by the U.S. Attorney’s Office for Freundel’s victims—3 D.C. residents out of 24 women identified—is too spotty to be of much use in the Court’s analysis. But even if that date were included, it would not reduce the overall ratio under the one-third threshold.