Grant v. Capitol Mgmt. Servs., L.P., No. 10-cv-2471, 2011 WL 1361532 (S.D. Cal. April 11, 2011).

The precise scope of a class definition is often a subject for debate at a class certification hearing, but defendants should pay attention to class definitions when removing, as well. As this case shows, failure to attend to the specific details of a class definition can be fatal to CAFA jurisdiction.

The plaintiff, a California citizen, brought a class action against the defendant, Capitol Management Services, a New York citizen, alleging violations of  the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. and of California’s Unfair and Deceptive Trade Practices Act, Cal. Bus. & Prof. Code § 17200, et seq.

The plaintiffs were a putative class consisting of individuals within California who received any telephone call from the defendant to said person’s cell-phone through the use of any “automated telephone dialing system or an artificial or prerecorded voice,” within the four years prior to filing of the complaint. The complaint sought damages in the amount of $500 for each negligent violation of the TCPA and $1,500 for each knowing or willful violation of the TCPA.

The defendant removed the action to federal court under CAFA. 

The plaintiff moved to remand the action to state court, which the District Court granted.

Neither the amount in controversy nor the number of putative class members was apparent from the face of the complaint, so it fell upon the defendant to show the CAFA prerequisites on those counts.  To accomplish this, the defendant submitted the declaration of its executive vice president of information technology, who stated that during the class period, the debt collectors dialed numbers believed to have been associated with cell phones in California more than 10,000 times, and that it dialed over 1,000 phone numbers identified with a unique debtor residing in California.

Based on this declaration, the defendant contended that the statutory damages of at least $500 multiplied by 10,000 dialed numbers established the amount in controversy over $5 million. The defendant also contended that the proposed class exceeded 100 individuals because it had attempted to collect from over 1,000 individuals in California during the relevant time period.

The Court noted that the proposed class was comprised of individuals who received any call from the defendant to their “cellular telephone through the use of any automated telephone dialing system or an artificial or prerecorded voice.” Thus, the Court observed that while the defendant had submitted evidence that it had dialed over 10,000 phone numbers assigned to cell phones, the defendant had not shown that those calls were made using an automated telephone dialing system or an artificial or prerecorded voice as described in the class description.

Next, with regard to the size of the class, the defendant had submitted evidence that it had dialed over 1,000 phone numbers identified with unique debtors in California.  The defendant, however, had not shown that 100 or more of those unique debtors were contacted on their cell phone using an automated telephone dialing system or an artificial or prerecorded voice (the terms of the class definition).

In other words, the defendant’s declaration was overbroad: it stated, on the one hand, that the defendant made the kind of phone calls (automated or prerecorded calls to cell phones) that the class was directed toward, and stipulated on the other hand that, generally, the defendant had made calls to at least 1,000.00 persons; but at no point did the defendant connect the two by specifically stating that it made the requisite number of phone calls using the complained of technique. While this may seem a minor defect, it fell short of establishing a prima facie case that the class definition implicated CAFA jurisdictional prerequisites.   Accordingly, the Court concluded that the defendant did not meet its burden and remanded the action to state court.