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Rogers v. CSX Intermodal Terminals, Inc.

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

September 5, 2019

RICHARD ROGERS, individually and on behalf of similarly situated individuals, Plaintiff,
v.
CSX INTERMODAL TERMINALS, INC., a Delaware corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE MARVIN E. ASPEN UNITED STATES DISTRICT JUDGE.

         Plaintiff Richard Rogers, individually and on behalf of a proposed class, alleges that Defendant CSX Intermodal Terminals, Inc. (“CSX”) violated the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”), by collecting his biometric information without obtaining a written release or providing him written disclosure of the purpose and duration for which his information was collected. (Compl. (Dkt. No. 1-1) ¶¶ 20, 35-36.) Presently before us is CSX's motion to dismiss Rogers' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 16.) For the reasons below, we deny in part and grant in part CSX's motion.

         BACKGROUND

         The following facts are taken from Rogers' complaint and deemed true for the purposes of this motion. See Bell v. City of Chi., 835 F.3d 736, 738 (7th Cir. 2016); Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Rogers used to work as a truck driver and, as part of his work, visited rail terminals operated by CSX to pick up and deliver freight. (Compl. ¶¶ 17-18.) At CSX's facilities, Rogers was required to scan his fingerprints to gain access. (Id.) CSX collected and stored Rogers' fingerprint information and “disseminat[ed]” it to its “technology vendors.” (Id. ¶¶ 19, 21.) Prior to obtaining Rogers' fingerprints, CSX did not inform him in writing of the specific purpose or length of time for which his information was collected. (Id. ¶¶ 20, 35.) Rogers also did not sign a release regarding his fingerprint information or consent to its dissemination, nor does CSX have a publicly available policy regarding its retention of biometric data. (Id. ¶¶ 20-21, 35-36.)

         Based on the forgoing, Rogers filed a class action against CSX in the Circuit Court of Cook County. See Rogers v. CSX Intermodal Terminals, Inc., No. 19 C 4168 (Ill. Cir. Ct. 2019). CSX then removed the case to this court based on diversity jurisdiction and the Class Action Fairness Act, 28 U.S.C § 1332(d).[1] (Notice of Removal (Dkt. No. 1).)

         LEGAL STANDARD

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the sufficiency of the complaint, not to decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (citing Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). In evaluating a motion to dismiss, we “construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [plaintiff's] favor.” Tamayo, 526 F.3d at 1081. A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts “to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Although a facially plausible complaint need not give “detailed factual allegations, ” it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. These requirements ensure that the defendant receives “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.

         ANALYSIS

         Rogers' claim stems from CSX's alleged failure to follow BIPA's disclosure and release requirements. Section 15(b) states that private entities collecting biometric identifiers and information[2] must:

(1) inform[] the subject . . . in writing that a biometric identifier or biometric information is being collected or stored;
(2) inform[] the subject . . . in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used; and
(3) receive[] a written release executed by the subject of the biometric identifier or biometric information.

740 ILCS 14/15(b). A “[w]ritten release” is defined as “informed written consent or, in the context of employment, a release executed by an employee as a condition of employment.” Id. 14/10. Private entities must also obtain consent before disseminating a person's biometric information and develop a publicly available written policy that “establish[es] a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information.” Id. 14/15(a), (d)(1). BIPA provides that “[a]ny person aggrieved by a violation” may bring an action to recover $1000 for a negligent violation or $5000 for an intentional or reckless violation. Id. 14/20.

         Rogers asserts that he is an aggrieved person under BIPA and is entitled to liquidated damages for CSX's “knowing and willful” or, at least, negligent violations. (Compl. ¶¶ 32-38.) CSX attacks Rogers' claim by arguing that the rights BIPA was designed to protect were not violated. (Def.'s Mem. in Supp. of Mot. to Dismiss (“Mem.”) (Dkt. No. 17) at 7-8.) It also argues that its failure to develop a publicly available retention and destruction policy was not a BIPA violation because it did not need to create one before collection of ...


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