The County of Alameda, the City of Antioch, and the City of El Segundo moved for a judicial finding of fraudulent joinder this week after being sued for their allegedly improper use of Clearview AI Inc.’s facial recognition technology. Wednesday’s motions claim that the municipal defendants do not belong in the lawsuit primarily against Clearview, and that the plaintiffs’ claims against them should be dismissed or, in the alternative, shunted to the California state court where the case was initially filed.
The motions explain that after the Judicial Panel on Multidistrict Litigation (JPML) issued a conditional transfer order, the plaintiffs purportedly dismissed their initial complaint then refiled, the second time naming the municipal defendants. As previously reported, several California residents and two community organizations filed the second lawsuit alleging that the municipal defendants used Clearview’s technology to take action against or chill protected speech activities.
In June, Clearview removed the second complaint to federal court on the basis that the public entity defendants were fraudulently joined. After the JPML issued a transfer order joining the case with the Chicago MDL, the plaintiffs moved for remand.
Alameda County’s filing argues that the plaintiffs are playing fast and loose with the court. “[B]y dismissing their original complaint after removal and conditional transfer to MDL and by re-filing a substantively identical complaint with threadbare claims against non-diverse Municipal Defendants, Plaintiffs appear to have done so in an apparent attempt to circumvent the JPML’s Conditional Transfer … and to defeat diversity jurisdiction and ensure that this matter is litigated in state court,” the motion says.
Alameda County makes arguments parallel to those made by Clearview in its notice of removal, including that the municipal defendants were “only added after unexplained delay … and the claims against [them] are meritless and subject to dismissal.”
In support of fraudulent joinder, Alameda County specifies that the plaintiffs’ claims, including invasion of privacy and common law appropriation of likeness, are weak. The plaintiffs’ “conclusory allegations are tenuously derived from a Buzzfeed News article published on the World Wide Web,” the motion says.
The municipality also takes issue with the plaintiffs’ argument that it aided and abetted Clearview’s supposed violations of local and California laws purportedly prohibiting facial recognition technology based on “bans” by the City of Alameda and California.
The state ban applies only to biometric surveillance systems in connection with a law enforcement officer’s body camera, and therefore does not apply because the complaint does not allege that the municipal defendants used Clearview in connection with body camera footage, Alameda County explains. Second, the motion says, the City of Alameda’s “ban” is a Resolution, not an ordinance, and is thus non-binding.
The plaintiffs are represented by Braunhagey & Borden LLP and Just Futures Law. The County of Alameda and the City of Antioch are represented by Bertrand, Fox, Elliot, Osman & Wenzel and the City of El Segundo by Carpenter, Rothans & Dumont.