Unreported / Non-Citable
Background
Spencer Kaidi filed a putative class action in Napa County Superior Court against T-Mobile USA, Inc., doing business as Metro by T-Mobile. The complaint alleges that the company installs third-party trackers on visitors' browsers when they visit its website, in violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2511, and various California laws. Kaidi alleges that the defendant caused his browser to send third-party domains copies of pages viewed and information revealing his interests, together with IP, device, and browser data and a cookie or session identifier. Those are allegations only. T-Mobile removed the case, invoking federal question jurisdiction and the Class Action Fairness Act.
After reviewing the complaint, the court questioned its own subject matter jurisdiction and ordered the parties to address whether Kaidi alleged facts supporting a concrete injury for Article III standing, and why the case should not be remanded. Kaidi argued the injury is interception, disclosure, and commercial use of substantive communications, and alternatively requested leave to amend. T-Mobile argued standing was adequately alleged, relying on Spears v. The Campbell's Soup Co. and Correia v. Lulu & Georgia, Inc., and asked the court to dismiss under Rule 12(b)(6) rather than remand. A motion to dismiss was pending.
The Court’s Holding
The court found that the action lacks Article III standing. It recognized that intangible harms such as disclosure of private information and intrusion upon seclusion can be concrete, but relied on the Ninth Circuit's decision in Popa v. Microsoft Corp., which affirmed dismissal of a session-replay case because the collected information was not embarrassing, invasive, or otherwise private and the plaintiff showed no harm similar to the highly offensive interferences actionable at common law. Kaidi argued that offensiveness rests on third-party access, content, persistence, nonconsent, and commercial use. The court was unpersuaded, noting that courts in the Ninth Circuit have consistently concluded that disclosure of identifiers such as IP addresses, without more, does not resemble such harms.
The court distinguished Spears and Correia, where plaintiffs had a reasonable expectation of privacy after affirmatively rejecting tracking cookies yet were tracked anyway. Kaidi does not allege that he rejected cookies, and he identified no proposed allegation to that effect, so the court concluded that amendment would be futile.
The court then rejected T-Mobile's request to dismiss rather than remand. Section 1447(c) provides that a removed case lacking subject matter jurisdiction shall be remanded, and the Supreme Court has held that it gives no discretion to dismiss instead. The Ninth Circuit permits a narrow futility exception only where there is absolute certainty that the state court would dismiss after remand, and T-Mobile did not show that. The court remanded to Napa County Superior Court and denied the motion to dismiss without prejudice.
Key Takeaways
- The court held that allegations of third-party trackers collecting browsing information and IP, device, and browser identifiers did not plead a concrete injury under Popa v. Microsoft Corp.
- Spears and Correia were distinguished because those plaintiffs allegedly rejected tracking cookies; the order does not announce a universal rejection requirement, but notes Kaidi alleged nothing comparable.
- A removed case lacking subject matter jurisdiction must be remanded rather than dismissed, subject only to a narrow futility exception requiring absolute certainty of dismissal in state court.
- The denial of the motion to dismiss was without prejudice, and the order did not adjudicate the merits of the federal or California claims, which remain for the state court.
- Kaidi's alternative request for leave to amend was rejected as futile because he proposed no new allegation addressing the defect.
Why It Matters
This is a district court order, not a published appellate opinion, so it is persuasive rather than binding authority. It applies Popa to a website-tracking class action and indicates that, in this court's view, alleging collection of IP, device, and browsing data is not enough for federal standing absent facts showing a privacy interest comparable to common-law harms, such as a disregarded cookie rejection.
The order also shows the practical consequence of a standing defect in a removed case: the plaintiff returns to state court rather than facing a federal dismissal. What remains open is whether the claims have merit and how the state court will treat standing under California law; the federal court decided neither. The Ninth Circuit has also noted it is an open question whether the futility exception survives International Primate, a point the court footnoted but did not resolve.