United States District Court, N.D. Illinois, Eastern Division
CHRISTOPHER HOWE, individually, and on behalf of all others similarly situated, Plaintiff,
SPEEDWAY LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R Wood United States District Judge
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”),  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.
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.)
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).)
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.)
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
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.
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.”).
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