United States District Court, N.D. Illinois, Eastern Division
RICHARD ROGERS, individually and on behalf of similarly situated individuals, Plaintiff,
BNSF RAILWAY COMPANY, Defendant.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.
Rogers has sued BNSF Railway Company on behalf of a putative
class for violations of the Illinois Biometric Information
Privacy Act (BIPA). In his amended complaint, Rogers alleges
that he is a truck driver who at times visits BNSF railyards
to pick up and drop off loads. At some BNSF facilities,
Rogers alleges, he is required to scan a biometric
identifier-such as a fingerprint or hand scan-into identity
verification devices, including BNSF's RailPASS mobile
application and kiosks. According to Rogers, BNSF collects
and stores this information and has done so without providing
him and others similarly situated with written disclosures
regarding the purpose and duration of its use of the
information; without making available its retention or
destruction policies; and without obtaining informed written
consent from him and others similarly situated-all of which,
he alleges, the BIPA requires.
BIPA requires a private entity that possesses biometric
identifiers or information to develop and make available to
the public a written policy establishing a retention schedule
and guidelines for permanently destroying the information
when the initial purpose for collecting it has been satisfied
or within three years of a person's last interaction with
the entity, whichever is sooner. 740 ILCS 14/15(a). In
addition, the BIPA prohibits a private entity from collecting
or obtaining a person's biometric identifier or
information unless it first informs the person or her legally
authorized representative in writing that the information is
being collected or stored, as well as the purpose and length
of term of the collection, storage, and use, and receives a
written release executed by the person or her legally
authorized representative. Id. § 15(b)(1)-(3).
The statute also restricts disclosure and dissemination of
biometric information and regulates its storage. Id.
§ 15(c)-(e). The BIPA provides a right of action to a
person aggrieved by a violation of the statute and permits a
prevailing party to recover actual damages or liquidated
damages of $1, 000 for a negligent violation or $5, 000 for
an intention or reckless violation. Id. § 20.
has moved to dismiss Rogers's amended complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim. It contends that Rogers's BIPA claim is
preempted by one or more of three federal statutes and that
Rogers has failed to adequately allege a negligent or
reckless violation of the BIPA.
considering a motion to dismiss under Rule 12(b)(6), the
Court takes the complaint's factual allegations as true
and draws reasonable inferences in the plaintiff's favor.
See, e.g., United Cent. Bank v. Davenport Estate
LLC, 815 F.3d 315, 318 (7th Cir. 2016). Dismissal is
appropriate only if the complaint does not allege enough
facts to state a claim for relief that is plausible on its
face. See, e.g., O'Boyle v. Real Time
Resolutions, Inc., 910 F.3d 338, 342 (7th Cir.
Court notes that preemption is an affirmative defense.
Dismissal under Rule 12(b)(6) based on an affirmative defense
is proper only if it is clear from the complaint and matters
of which the court may take judicial notice that the claims
are barred as a matter of law, see, e.g., Parungao v.
Cmty. Health Sys., Inc., 858 F.3d 452, 457 (7th Cir.
2017), that is, only if the complaint "admits all the
ingredients of an impenetrable defense." Xechem,
Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th
statute must give way if it conflicts with or frustrates
federal law. U.S. Const., art. VI, cl. 2; CSX Transp.,
Inc. v. Easterwood, 507 U.S. 658, 663 (1993); Union
Pac. R. Co. v. Chi. Transit Auth., 647 F.3d 675, 678
(7th Cir. 2011). But "[i]n the interest of avoiding
unintended encroachment on the authority of the States . . .,
a court interpreting a federal statute pertaining to a
subject traditionally governed by state law will be reluctant
to find pre-emption. Thus, pre-emption will not lie unless it
is the clear and manifest purpose of Congress."
Easterwood, 507 U.S. at 663-64 (internal quotation
marks omitted). A court considers the text and structure of
the federal statute to find evidence of preemptive purpose.
Id. at 664. "If the statute contains an express
preemption clause, the task of statutory construction must in
the first instance focus on the plaining wording of the
clause, which necessarily contains the best evidence of
Congress' pre-emptive intent." Id.; see
also Dan's City Used Cars, Inc. v. Pelkey, 569 U.S.
251, 260 (2013).
argues that three federal statutes preempt Rogers's BIPA
claim: the Federal Railroad Safety Act (FRSA), the Interstate
Commerce Commission Termination Act (ICCTA), and the Federal
Aviation Administration Authorization Act (FAAAA). The Court
will address each, starting with the ICCTA.
ICCTA, Congress "expressly conferred on the [Surface
Transportation] Board exclusive jurisdiction over the
regulation of railroad transportation." Chi. Transit
Auth., 647 F.3d at 678 (internal quotation marks
omitted). The operative provision of the statute reads as
jurisdiction of the Board over-
(1) transportation by rail carriers, and the remedies
provided in this part with respect to rates, classifications,
rules (including car service, interchange, and other
operating rules), practices, routes, services, and facilities
of such carries; and
(2) the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side
tracks, or facilities, even if the tracks are located, or