Unreported / Non-Citable
Background
Plaintiff Thelma Kimmons filed a putative class action in Alameda County Superior Court against NFL Enterprises LLC, alleging the company installed third-party trackers on visitors' internet browsers when they visited nfl.com in violation of the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., and various California laws. Plaintiff initially filed the complaint in state court, and Defendant removed it to federal court based on federal question jurisdiction and under the Class Action Fairness Act, 28 U.S.C. § 1332(d).
After reviewing the complaint, the court raised concerns about subject matter jurisdiction and ordered Defendant to show cause why the action should not be remanded based on Plaintiff's failure to allege facts supporting an inference of a concrete injury for purposes of Article III standing. Defendant's response to the order to show cause did not purport to show Article III standing for Plaintiff and, to the contrary, Defendant stated it had "no objection to remand."
The Court’s Holding
The court remanded the action to Alameda County Superior Court for lack of subject matter jurisdiction under 28 U.S.C. § 1447(c), which provides that if at any time before final judgment it appears the district court lacks subject matter jurisdiction over a case removed from state court, the case shall be remanded. The court cited International Primate Protection League v. Administrators of Tulane Educational Fund, 500 U.S. 72, 89 (1991), for the principle that the literal words of § 1447(c) give no discretion to dismiss rather than remand an action and instead declare that where subject matter jurisdiction is lacking, the removed case shall be remanded.
The court acknowledged a narrow futility exception to the general remand rule that permits the district court to dismiss an action rather than remand, but only where there is absolute certainty that the state court would dismiss the action following remand, citing Sauk-Suiattle Indian Tribe v. City of Seattle, 56 F.4th 1179, 1189 (9th Cir. 2022). Defendant had not shown dismissal was an absolute certainty, so the court followed the mandate of Section 1447(c) and remanded the action to state court.
Key Takeaways
- When a defendant removes a case to federal court and cannot establish Article III standing for the plaintiff, the court must remand to state court under 28 U.S.C. § 1447(c).
- Section 1447(c) mandates remand—not dismissal—when subject matter jurisdiction is lacking, and courts have no discretion to dismiss instead.
- The futility exception to mandatory remand applies only when there is absolute certainty the state court would dismiss the action after remand.
- A defendant's concession that it has no objection to remand weighs heavily in favor of remand and does not satisfy the futility exception.
Why It Matters
This order reinforces the mandatory nature of remand under § 1447(c) when federal jurisdiction is absent, particularly in removed class actions where standing defects appear on the face of the complaint. The court's refusal to dismiss—even where the defendant did not oppose remand—underscores that the statutory command to remand is not discretionary.
The decision also illustrates the high bar for the futility exception, which requires absolute certainty of dismissal in state court, not merely a likelihood. By remanding rather than dismissing, the court preserved the plaintiff's ability to pursue her claims in state court, where the standing requirements may differ from federal Article III standards.