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Barnes v. Aryzta LLC

United States District Court, N.D. Illinois, Eastern Division

December 20, 2017

ARYZTA, LLC, Defendant.




         This case was filed in state court on August 17, 2017 and removed by Defendant to federal court on October 12, 2017. Plaintiff, on behalf of himself and a class of similarly situated individuals, alleges that Defendant violates the Illinois Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq., and is liable for negligence. Plaintiff seeks (1) a declaratory judgment that Defendant violated BIPA and acted negligently; (2) injunctive and other equitable relief as is necessary to protect the interests of the class, including an order requiring Defendant to collect, store, and use biometric identifiers or biometric information in compliance with BIPA; (3) statutory damages under BIPA, as well as attorneys' fees and costs; (4) pre- and post-judgment interest, and (5) any other relief that the Court deems reasonable and just. Defendant contends that the time-clock in issue does not collect or store an employee's fingerprint or any other biometric identifier or biometric information to establish any statutory liability under the BIPA on behalf of Plaintiff or a purported class. Defendant further contends that Plaintiff cannot succeed on his claims because he has not suffered any injury and is therefore not a “person aggrieved” by a violation of the BIPA, and cannot succeed on a claim for negligence under Illinois law. Defendant has further set forth several affirmative defenses, including but not limited to the statute of limitations, equitable doctrine of laches, equitable doctrines of estoppel, waiver, ratification and/or acquiescence, assumption of the risk, good faith and substantial compliance and superseding/intervening causes in connection with Plaintiff's knowledge of, implicit consent to and continued use of the time-clock in issue during the course of his employment with Defendant.

         On November 2, 2017, Defendant filed a motion to dismiss under Rule 12(b)(1) and 12(b)(6). R. 16. On November 6, 2017, Defendant moved to withdraw its motion to dismiss and sought leave to file an amended version raising only Rule 12(b)(6) arguments for dismissal. R. 22. The Court granted that motion on November 8, 2017. R. 26. On November 22, 2017, Plaintiff filed a motion to remand the case to state court. R. 29. Briefing on Plaintiff's motion to remand was completed on December 15, 2017. For the reasons that follow, Plaintiff's motion to remand is granted.


         The issue before the Court is whether Defendant's removal of this class action lawsuit from state court was proper.

         The removal statute states that:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a) (emphasis added). Defendant removed this action based on federal court jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)(A). That statute grants federal district courts:

original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5, 000, 000, exclusive of interest and costs, and is a class action in which . . . [a]ny member of a class of plaintiffs is a citizen of a State different from any defendant.

Id. After removing this action based on jurisdiction accorded by the CAFA, Defendant then moved to dismiss the complaint for lack of subject matter jurisdiction based on the argument that Plaintiff lacked a concrete injury-in-fact sufficient to confer Article III standing pursuant to the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016).

         A similar strategy was adopted by the defendant in Wisconsin Department of Corrections v. Schacht, 524 U.S. 381 (1998), where Justice Kennedy, in a concurring opinion, said the following:

Here the State consented to removal but then registered a prompt objection to the jurisdiction of the United States District Court over the claim against it. By electing to remove, the State created the difficult problem confronted in the Court of Appeals and now here. This is the situation in which law usually says a party must accept the consequences of its own acts. It would seem simple enough to rule that once a State consents to removal, it may not turn around and say the Eleventh Amendment bars ...

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