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Howe v. Speedway LLC

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

May 31, 2018

CHRISTOPHER HOWE, individually, and on behalf of all others similarly situated, Plaintiff,
SPEEDWAY LLC, et al., Defendants.


          Andrea R Wood United States District Judge

         At the beginning of his employment at a Speedway gas station, Plaintiff Christopher Howe was required to scan his fingerprint, which his employer used to authenticate his identity and track his time. Howe initially brought this putative class action in Illinois state court against Defendants Speedway LLC (“Speedway”) and Marathon Petroleum Co. (“Marathon”), [1] arguing that Defendants collected and stored his and similarly-situated individuals' fingerprints in violation of Illinois's Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1, et seq. Defendants then removed the lawsuit to federal court (Dkt. No. 1), and shortly thereafter filed a motion to dismiss (Dkt. No. 25). In response, Howe moved to remand the action back to state court, claiming that Defendants' motion to dismiss demonstrated that Howe did not have Article III standing to bring this action in federal court. (Dkt. No. 50.) For the reasons that follow, Howe's motion to remand is granted and Defendants' motion to dismiss is denied as moot.


         Howe is an Illinois resident who worked at a Speedway gas station in Addison, Illinois from September 2015 to May 2017. (Compl. ¶¶ 10, 36, Dkt. No. 1-1.) Speedway required its employees to scan their fingerprints, which were stored in a database operated by its vendor, Kronos. (Id. ¶¶ 2, 6, 38.) It used the employees' fingerprints to authenticate their identities and to track their time. (Id. ¶ 37.) Specifically, at the beginning of each work day, an employee would clock in by scanning his fingerprint and then scan his fingerprint again at the end of the day to clock out. (Id. ¶¶ 2-3, 29, 39.) Howe's fingerprint data was used for this purpose during his employment at Speedway. (Id. ¶ 39.)

         According to Howe, Speedway collected, stored, and used his fingerprints in violation of BIPA. Illinois passed BIPA in 2008 in order to provide certain protections for the biometric identifiers-such as fingerprints-and biometric information of Illinois citizens. (Id. ¶¶ 18, 21.) The statute includes provisions requiring any private entity to make two disclosures and receive a written release before collecting a person's biometric identifier or information. (Id. ¶ 19; 740 ILCS 14/15(b).) In particular, the entity must disclose in writing to the person whose biometric data is being collected “that a biometric identifier or biometric information is being collected or stored.” (Compl. ¶ 19; 740 ILCS 14/15(b)(1).) Then, the person must be informed “in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used.” (Compl. ¶ 19; 740 ILCS 14/15(b)(2).) Furthermore, a private entity that is in possession of biometric data

must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first. Absent a valid warrant or subpoena issued by a court of competent jurisdiction, a private entity in possession of biometric identifiers or biometric information must comply with its established retention schedule and destruction guidelines.

(Compl. ¶ 23; 740 ILCS 14/15(a).)

         Howe filed the present class action against Speedway and Marathon (of which Speedway is a wholly-owned subsidiary) seeking statutory damages under BIPA on behalf of himself and a class of similarly-situated individuals, as well as an injunction forcing Defendants to comply with BIPA. (Compl. ¶¶ 61-76.) In addition, Howe seeks damages for Defendants' negligence. (Id. ¶¶ 77-84.) In his complaint, Howe alleges that Speedway violated BIPA because it never provided any disclosures nor did it obtain his written release before scanning and storing his fingerprints. (Id. ¶¶ 40, 42.) He further alleges a violation stemming from Speedway's failure to create and make publicly available its retention and destruction policy for biometric data. (Id. ¶ 41.) As a result of Speedway's BIPA violations and negligence, Howe claims to have been injured in three respects. His first claimed injury is the invasion of his right to privacy caused by Speedway's collection and storage of his biometric data without proper disclosures or authorization. (Id. ¶ 44.) Howe also alleges an informational injury on account of Speedway's failure to provide him information to which he was entitled to under BIPA. (Id. ¶ 45.) Finally, he claims to have suffered mental anguish and injury from contemplating the possibility that his biometric data might be compromised. (Id. ¶ 47.)

         This class action was originally filed in the Circuit Court of Cook County, Illinois, however Defendants removed the action to this Court, claiming jurisdiction on the basis of the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d), 1453. (Notice of Removal at 1.) Following removal, Defendants moved to dismiss Howe's action under Federal Rule of Civil Procedure 12(b)(6). In response, Howe moved to remand the case back to state court asserting that Defendants' Rule 12(b)(6) argument raises doubt as to Howe's standing to proceed before a federal district court. His motion to remand also seeks attorneys' fees and costs incurred as a result of the improper removal, pursuant to 28 U.S.C. § 1447(c).


          I. Motion to Remand

         Any action that could have been originally filed in federal court is properly removable. 28 U.S.C. § 1441. To remove a case to federal court, a defendant need only file a notice of removal “containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446. Pursuant to CAFA, a federal court has subject-matter jurisdiction over class actions where the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million. Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 551-52 (2014). Defendants' notice of removal establishes that the action was removable under CAFA, and Howe does not dispute that.

         Yet having removed the action to federal court, Defendants proceeded to file a motion to dismiss that, while styled as a Rule 12(b)(6) motion, appears to cast doubt on Howe's Article III standing. Defendants' motion to dismiss argues that Howe has failed to state a claim under BIPA because the statute's cause of action is only available to a “person aggrieved by a violation” of the statute. (Mem. in Support of Mot. to Dismiss at 3, Dkt. No. 26.) Defendants contend that to be a “person aggrieved, ” a plaintiff must have been injured by a BIPA violation. (Id. at 4-10.) Howe is not “aggrieved, ” according to Defendants, because he alleges only technical violations of the statute but “alleges no facts to indicate he was injured” by those violations (Id. at 3.) While Defendants' motion to dismiss is carefully cabined to issues regarding Howe's ability to state a claim, Howe asserts that their arguments nonetheless implicate Article III standing and thus the Court's ability to hear the case at all. Its jurisdiction having been called into question, the Court must resolve whether Howe has constitutional standing before it can address whether Howe failed to state a claim upon which relief may be granted. See Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467 (7th Cir. 1988) (“Standing is a threshold question in every federal case because if the litigants do not have standing to raise their claims the court is without authority to consider the merits of the action.”).

         Standing is an essential component of Article III's limitation of federal courts' judicial power only to cases or controversies. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). There are three elements that constitute the “irreducible constitutional minimum” of standing. Lujan, 504 U.S. at 560. A “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S.Ct. at 1547 (internal quotation marks ...

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