United States District Court, N.D. Illinois, Eastern Division
BRIAN NORBERG, on behalf of himself and all others similarly situated, Plaintiff,
SHUTTERFLY, INC.; and THISLIFE, INC, Defendants
Brian Norberg, on behalf of himself and all others similarly
situated, Plaintiff: David P Milian, PRO HAC VICE, Carey
Rodriguez O'keefe Milian Gonya, LLP, Miami, FL; Frank S
Hedin, PRO HAC VICE, Carey Rodriguez Milian Gonya, LLP,
Miami, FL; Kyle Alan Shamberg, Katrina Carroll, Lite DePalma
Greenberg, LLC, Chicago, IL.
Shutterfly, Inc., Defendant: Lauren R Goldman, LEAD ATTORNEY,
Mayer Brown LLP, New York, NY; Marc J. Zwillinger, LEAD
ATTORNEY, ZwillGen PLLC, Washington, DC; Robert F. Huff, Jr.,
LEAD ATTORNEY, ZwillGen PLLC, Chicago, IL; Archis A.
Parasharami, Mayer Brown LLP (DC), Washington, DC; Matthew
David Provance, Mayer Brown LLP, Chicago, IL.
ThisLife.Com, Inc., Defendant: Lauren R Goldman, LEAD
ATTORNEY, Mayer Brown LLP, New York, NY; Archis A.
Parasharami, Mayer Brown LLP (DC), Washington, DC; Matthew
David Provance, Mayer Brown LLP, Chicago, IL; Robert F. Huff,
Jr., ZwillGen PLLC, Chicago, IL.
CHARLES RONALD NORGLE, United States District Judge.
Motion to Dismiss , pursuant to Rules 12(b)(2) and (6) is
Brian Norberg (" Plaintiff" ), individually and on
behalf of others similarly situated, brings this diversity
class action suit against Shutterfly, Inc. and its subsidiary
ThisLife, Inc. (" Defendants" ). Plaintiff seeks
statutory damages for Defendants' violation of the
Illinois Biometric Information Privacy Act (" BIPA"
), 740 Ill.Comp.Stat. 14/1 et seq., and an
injunction against any further violations. Before the Court
is Defendants' motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(2) and (6). For the following
reasons, the motion is denied.
make two principal arguments, first that the Plaintiff has
failed to state a claim for which relief may be granted under
the BIPA, and second, that even if a claim had been stated,
this Court cannot exercise personal jurisdiction over the
Plaintiff. The Court will address the personal jurisdiction
argument first, because, if there is no in personam
jurisdiction the Court will be unable to reach the Rule
12(b)(6) matter. See be2 LLC v. Ivanov, 642 F.3d
555, 557 (7th Cir. 2011) (holding judgments entered without
personal jurisdiction are void).
federal court has original jurisdiction of any civil action
in which the amount in controversy exceeds $5,000,000.00 and
where any member of the class of plaintiffs is a citizen of a
different state of any defendant. 28 U.S.C. §
1332(d)(2). " In diversity cases, such as this one, a
federal court must determine if a court of the state in which
it sits would have personal jurisdiction over the
defendant." Jennings v. AC Hydraulic A/S, 383
F.3d 546, 548 (7th Cir. 2004). In Illinois, the long-arm
statute " provides that the Due Process Clause of the
Fourteenth Amendment sets the outer boundary of the personal
jurisdiction of its courts." Philos Techs., Inc. v.
Philos & D, Inc., 802 F.3d 905, 912 (7th Cir. 2015). See
735 ILCS 5/2-209(c). " Under the Fourteenth
Amendment's Due Process Clause, a court may exercise
personal jurisdiction over an out-of-state defendant when
that defendant has 'minimum contacts with [the forum
state] such that the maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.'" Philos Techs., Inc. v. Philos & D,
Inc., 802 F.3d 905, 912-13 (7th Cir. 2015) (quoting
Int'l Shoe Co. v. Washington, 326 U.S. 310, 316,
66 S.Ct. 154, 90 L.Ed. 95 (1945)).
determining whether there is personal jurisdiction the Court
must consider: " 'the burden on the defendant, the
forum State's interest in adjudicating the dispute, the
plaintiff's interest in obtaining convenient and
effective relief, the interstate judicial system's
interest in obtaining the most efficient resolution of
controversies, and the shared interest of the several States
in furthering fundamental substantive social
policies.'" Tamburo v. Dworkin, 601 F.3d
693, 709 (7th Cir. 2010) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d
Defendants are both incorporated in Delaware and
headquartered in California. Defendants operate a number of
websites that provide digital photo storage, sharing, and
photo prints and novelty gifts, such as photo mugs and
mousepads, available in all fifty states and internationally.
Defendants offer their photo sharing and printing services to
citizens of Illinois and ship their hard copy photographs and
other products directly to their customers. The statute they
are accused of violating is an Illinois statute and stems out
of their contact with Illinois residents. Moreover, because
the Plaintiff is a private Illinois resident there is a
strong interest in adjudicating the matter locally, the Court
finds there are sufficient minimum contacts to establish
specific personal jurisdiction without offending the notions
of fair play and substantial justice. Because the Court finds
that it has personal jurisdiction over the Defendants, their
motion to dismiss for lack of personal jurisdiction is
Defendants bring a Rule 12(b)(6) motion to dismiss, arguing
that the BIPA excludes biometric identifiers, defined as
retina or iris scan, fingerprint, voiceprint, or hand or face
geometry, derived from photographs. As a result
Defendants' websites are outside of the scope of the
statute. A motion under Rule 12(b)(6) tests the sufficiency
of the complaint under the plausibility standard, Bell
Atlantic Corporation v. Twombly, 550 U.S. 544, 570, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007), not the merits of the
suit, Gibson v. City of Chicago, 910 F.2d 1510, 1520
(7th Cir. 1990) (citation omitted). In order to survive a
motion to dismiss under Rule 12(b)(6), a plaintiff's
complaint " must actually suggest that the
plaintiff has a right to relief, by providing allegations
that raise a right to relief above the speculative
level." Indep. Trust Corp. v. Stewart Info. Servs.
Corp., 665 F.3d 930, 935 (7th Cir. 2012) (internal
quotation marks and citation omitted). " [A]ll this
means is that the plaintiff must include enough details about
the subject-matter of the case to present a story that holds
together. At this pleading stage, we do not ask whether these
things actually happened; instead, the proper question to ask
is still could these things have happened."
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. &
Nw. Ind., 786 F.3d 510, 526 (7th Cir. 2015) (internal
quotation marks and citation omitted). In deciding a Rule
12(b)(6) motion, the Court accepts as true all well-pleaded
facts in a plaintiff's complaint, and draws all
reasonable inferences in his favor. Burke v. 401 N. Wabash
Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013) (citations
operate several photo sharing websites, Shutterfly.com and
ThisLife.com (" Websites" ), which offer online
digital photo sharing, storage, and organizational services,
as well as hard copy photo prints and personalized gifts. The
Websites also offer facial recognition capabilities to
identify and categorize photos based on the people in the
photos. Plaintiff alleges that Defendants' are actively
collecting, storing, and using the biometrics (face geometry)
of millions of individuals, who are not the Websites'
customers, in violation of the BIPA.
BIPA was enacted in 2008, and to this date, the Court is
unaware of any judicial interpretation of the statute. The
parties have provided none and the Court's own research
was also fruitless. Turning to the plain language of the
statute, the BIPA provides guidelines and limitations on the
collection, retention, disclosure, and storage of biometric
identifiers and information. 740 Ill.Comp.Stat. 14/15. The
statute defines a biometric identifier as: " retina or
iris scan, fingerprint, voiceprint, or scan of hand or face
geometry," and excludes: writing samples, signatures,
photographs, biological samples, demographic data, tattoos,
or physical descriptions. Id. § 10. Biometric
information is defined as " any information . . .
converted, stored, or shared, based on an individual's
biometric identifier used to identify an individual[,]"
excluding information derived from items excluded from the
above definition. Id. The statute further prohibits
private entities from collecting biometric information from
individuals absent express consent from the individuals
following a written disclosure of the collection and a public
policy for handling and disposing of that biometric
information. Id. § 15. The statute also
provides for a private cause of action against any company or
private entity that is in violation of the BIPA. Id.
§ 20. Here, Plaintiff alleges that Defendants are using
his personal face pattern to recognize and ...