United States District Court, N.D. Illinois, Eastern Division
RICHARD ROGERS, individually and on behalf of similarly situated individuals, Plaintiff,
CSX INTERMODAL TERMINALS, INC., a Delaware corporation, Defendant.
MEMORANDUM OPINION AND ORDER
HONORABLE MARVIN E. ASPEN UNITED STATES DISTRICT JUDGE.
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
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. ¶¶
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). (Notice of Removal (Dkt. No. 1).)
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.
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 must:
(1) inform the subject . . . in writing that a biometric
identifier or biometric information is being collected or
(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
(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.
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 ...