Walker v. Motricity, Inc., Case No. 09-01316 (N.D. Cal. June 19, 2009)

A cell phone user brought a putative class action against a mobile phone content developer, Motricity, Inc., alleging that Motricity charged cell phone users for unwanted content sent to their mobile phones. For those of you who do not know, mobile content consists of features like customized ring tones, premium text messages and sports score reports. 

Motricity removed under CAFA and the plaintiff filed a motion to remand on the ground that Motricity failed to establish its burden to prove, by a preponderance of the evidence, that the $5 million amount in controversy requirement was met.

The Northern District of California agreed, and remanded the case to state court. 

Fifteen days later, Motricity removed again, arguing that the second notice of removal was timely under 28 U.S.C. §1446(b) because it was based on “other paper from which it may first be ascertained that the case is one which has become removable.” The “other paper” upon which Motricity relied was an affidavit filed by the plaintiff in an unrelated action in which the plaintiff’s counsel stated that 20% of a different defendant’s revenue came from unauthorized mobile content charges. 

Motricity argued that, since it generated $15 million in revenue from mobile content transactions in California, the plaintiff’s counsel’s own estimate of 20% of that amount, plus punitive damages and attorneys’ fees, would amount to $5 million. 

In ruling on the plaintiff’s second motion to remand, the Court held that the “other paper” referenced in §1446(b) refers only to “official documents” that are filed in the underlying state court matter—not documents filed in unrelated cases. The Court found that because the attorney’s affidavit was not filed in the underlying state court action, it did not qualify as “other paper” and could not serve as a basis for removal. 

In addition, the Court found that even if it was to consider the affidavit, it would not satisfy Motricity’s burden because the affidavit relates to a different content provider, and involves fact specific issues in a different, unrelated case. 

Obviously annoyed by Motricity’s “frivolous” second attempt at removal, the Court awarded sanctions against Motricity consisting of attorney’s fees and ordered that “in all future cases where this defendant or these attorneys remove an action under CAFA, they have to file a copy of this order with the court and serve it on opposing counsel.” 

Expect a “busy signal” if you attempt to contact Motricity’s counsel for comment!