United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE T HOMAS M. DURKIN UNITED STATES DISTRICT JUDGE
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.
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.
issue before the Court is whether Defendant's removal of
this class action lawsuit from state court was proper.
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
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).
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 ...