White v. Playphone, Inc. et. al, 2009 WL 499103 (W.D. Wis. February 27, 2009)

“Look into your cell phone and see what your future holds” just doesn’t have the same ring to it. (Pun fully intended) But these days, cell phones provide all kinds of information and are probably putting fortune tellers out of business left and right. 


Playphone, Inc. is one such company, and its future holds some good old fashioned CAFA jurisdiction! 


Unfortunately in this case, the plaintiff had no desire to read her horoscope or download Lil Weezy’s latest hits to her cell phone. In fact, her phone didn’t even have the capacity to receive these new-fangled downloads. That didn’t stop Playphone Inc. from charging her for those services, so Ms. White filed a lovely little state lawsuit against them, alleging violations of Wisconsin Fair Marketing and Trade Practice Laws. Well, Playphone, Inc. looked right into its crystal ball cell phone and saw its future with CAFA in federal court. 

Since the judge didn’t have a fancy fortune telling cell phone to determine the outcome, he just used some good, old fashioned legal reasoning to determine whether the plaintiff’s amount in controversy and class size were sufficient for CAFA jurisdiction.  

First, the court noted that the proponent of removal had the burden to prove jurisdiction by a preponderance of the evidence. The plaintiff argued that defendants total subscriber list was insufficient because not all subscribers had unauthorized charges, and further argued that only a list of subscribers with unauthorized charges would be sufficient to show the necessary one hundred class members and $5,000,000 amount in controversy. Plaintiff attempted to amend her complaint in an attempt to limit the amount in controversy and prevent removal.

The burden of proof for determining the number of class members and the amount in controversy is “legally impossible.” In other words, the plaintiff must show that it will be “legally impossible” to have more than 100 members in the proposed class and that is it “legally impossible” for the proposed class to collect more than $5 million. The court stated that defendants did not have to admit liability by providing a list of customers with unauthorized charges and, therefore, the total number of subscribers was sufficient to determine potential liability. By taking into account all of the Wisconsin subscribers and all of defendant’s Wisconsin revenues, plaintiff was unable to meet her burden. 

The court also noted that the plaintiff’s complaint was broad enough to include all customers. Although a more narrowly tailored complaint might have limited the use of all subscribers for determining jurisdiction, plaintiff’s amended complaint was dismissed because it was filed too long after the original complaint.