We recently posted about a trend of plaintiffs trying to keep certain class actions, including wiretap cases, in California state court and highlighted potential avenues for removal to federal court. Another federal court has weighed in, declining to remand because the plaintiff did not establish that CAFA’s mandatory local controversy exception applied. Miramalek v. Los Angeles Times Communications LLC, 2024 WL 2479940 (N.D. Cal. May 23, 2024). This recent case offers another potential ground for opposing a motion to remand, though it also underscores the attendant risk of jurisdictional discovery.

In Miramalek, the plaintiff alleged that the LA Times’ website’s use of certain tracking technologies constitutes an unlawful pen register under California Invasion of Privacy Act § 638.51. She asserted the claim on behalf of “all California residents who accessed the Website in California and had their IP address collected by the Trackers.” The defendant removed, asserting CAFA jurisdiction, and the plaintiff sought remand.

The district court denied the motion to remand after finding that the plaintiff had not shown that all the requirements of the mandatory local controversy exception were satisfied. Specifically, that exception requires that two-thirds of the putative class be citizens of the state in which the case was originally brought—here, California. The plaintiff attempted to satisfy that requirement by extrapolating from government statistics about eligible voters and Franchise Tax Board records about state citizenship, but the court rejected that argument. Invoking the Ninth Circuit’s decision in Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1121 (9th Cir. 2017), it reasoned that “[i]n order to determine whether two-thirds of class members are California citizens, we must first determine the size of the class as a whole.” Because the plaintiff had not established the denominator, the court found it could not assess whether two-thirds of putative class members were California citizens. That said, the court granted the plaintiff’s request for jurisdictional discovery, reasoning that the defendant may have records that would go to the size of the putative class.

In sum, where a plaintiff does not offer evidence of the size of the putative class, Miramalek may be useful to defendants seeking to resist remand, but defendants should be aware that advancing this type of argument risks jurisdictional discovery.