Doe v. Georgetown Synagogue–Kesher Israel Congregation

Decision Date24 July 2015
Docket NumberCase No. 15–cv–00026 (CRC), Case No. 15–cv–00028 (CRC)
Citation118 F.Supp.3d 88
Parties Jane Doe 1, Emma Shulevitz, Stephanie Smith, Plaintiffs, v. Georgetown Synagogue–Kesher Israel Congregation, et al., Defendants. Jane Doe 2, Plaintiff, v. Georgetown Synagogue–Kesher Israel Congregation, et al., Defendants.
CourtU.S. District Court — District of Columbia

Stephen G. Grygiel, Steven J. Kelly, Steven D. Silverman, Anne Toomey McKenna, Silverman, Thompson, Slutkin & White, Baltimore, MD, for Plaintiffs.

Paul Blankenstein, Claudia M. Barrett, Maura McCormick Logan, Gibson, Dunn & Crutcher, LLP, Guy G. Brenner, Proskauer Rose LLP, Washington, DC, Edward Clark Bacon, Patricia Maureen Thornton, Bacon, Thornton & Palmer, LLP, Greenbelt, MD, Chelsea P. Azrak, Evan T. Barr, Samuel Groner, Fried, Frank, Harris, Shriver & Jacobson LLP, Mark D. Harris, Proskauer Rose, LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

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 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 between 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 have 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. ¶¶ 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 class 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 overlap, 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 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"), 28 U.S.C. § 1332. In response, both sets of plaintiffs sought remand under two exceptions to federal court jurisdiction set forth in CAFA for matters that are predominantly local in nature. Alternatively, plaintiffs requested leave to conduct jurisdictional discovery on class citizenship in order to establish that one of the CAFA exceptions applies. After a hearing, the Court granted limited jurisdictional discovery. In an effort to balance the privacy interests of the members of the proposed classes with the need for additional information, the Court restricted discovery to "(1) information possessed by the United States Attorney's Office for the District of Columbia regarding the state of residence of the 152 women that Rabbi Bernard Freundel acknowledged secretly filming in his plea agreement; and (2) information possessed by Defendant Georgetown Synagogue–Kesher Israel Congregation regarding the age and state of residency of its married female members between 2005 and 2015." Minute Order, April 6, 2015. The membership data Kesher Israel provided in response shows that the synagogue had 294 female members between 2005 and Fruendel's arrest, 163 of whom had a last known address in District of Columbia. Pls.' Renewed Mot. to Remand, Ex. A; Defs. Opp'n to Pls.' Renewed Mot. to Remand at 16. In response to plaintiffs' subpoena, the U.S. Attorney's Office indicated that it has specifically identified 70 of Freudel's victims but has residency information for only 24. Of those 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 women 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, ––– U.S. ––––, 135 S.Ct. 547, 553, 190 L.Ed.2d 495 (2014) (quoting 28 U.S.C. § 1446(a) ). "[N]o antiremoval presumption attends cases invoking CAFA," as Congress designed the statute to facilitate federal consideration of certain class actions. Id. at 550 (citation omitted). Under CAFA, federal district courts have original jurisdiction over class actions where the class has more than 100 members, the parties are minimally diverse, and the "matter in controversy exceeds the sum or value of $5,000,000." Standard Fire Ins. Co. v. Knowles, ––– U.S. ––––, 133 S.Ct. 1345, 1348, 185 L.Ed.2d 439 (2013) (quoting 28 U.S.C. § 1332(d)(2), (d)(5)(B) ). "The party supporting removal bears the burden of establishing the Court's jurisdiction." McMullen v. Synchrony Bank, 82 F.Supp.3d 133, 138, 2015 WL 632212, at *1 (D.D.C.2015) (citing Breakman v. AOL LLC, 545 F.Supp.2d 96, 100 (D.D.C.2008) ); see also Woods v. Standard Ins. Co., 771 F.3d 1257, 1262 (10th Cir.2014) ("CAFA places the burden on removing parties to establish that its basic requirements are met."). Once removing parties have done so, the burden shifts to parties seeking remand to show that one of CAFA's three exceptions applies. SeeMcMullen, 82 F.Supp.3d at 138–9, 2015 WL 632212, at *2 ; Woods, 771 F.3d at 1262 (collecting cases); Greenwich Fin. Servs. Distressed Mortgage Fund 3 LLC v. Countrywide Fin. Corp., 603 F.3d 23, 26 (2d Cir.2010) (same). As relevant here, CAFA's "home state" exception requires the court to remand a case where more than two-thirds of proposed class members, and the principal defendants, are citizens of the state in which the action was originally filed, 28 U.S.C. § 1332(d)(4)(B) and the statute's "interest-of-justice" exception permits the court, "in the interests of justice and looking at the totality of the circumstances, [to] decline to exercise jurisdiction" over a class action in which greater than one-third but less than two-thirds of proposed class members, and the primary defendants, are citizens of the state in which the action was originally filed. Id. § 1332(d)(3). In exercising its discretion whether to assert jurisdiction under the "interests of...

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