Barnes v. ARYZTA LLC
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Thomas M. Durkin on 12/20/2017. Mailed notice (ew, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMEL BARNES
Plaintiff,
vs.
ARYZTA, LLC,
Defendant.
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No. 17-cv-7358
Judge Thomas M. Durkin
MEMORANDUM OPINION AND ORDER
INTRODUCTION
This case was filed in state court on August 17, 2017 and removed by
Defendant to federal court on October 12, 2017. Plaintiff, on behalf of himself and a
class of similarly situated individuals, alleges that Defendant violates the Illinois
Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1 et seq., and is liable for
negligence. Plaintiff seeks (1) a declaratory judgment that Defendant violated BIPA
and acted negligently; (2) injunctive and other equitable relief as is necessary to
protect the interests of the class, including an order requiring Defendant to collect,
store, and use biometric identifiers or biometric information in compliance with
BIPA; (3) statutory damages under BIPA, as well as attorneys’ fees and costs;
(4) pre- and post-judgment interest, and (5) any other relief that the Court deems
reasonable and just. Defendant contends that the time-clock in issue does not collect
or store an employee’s fingerprint or any other biometric identifier or biometric
information to establish any statutory liability under the BIPA on behalf of Plaintiff
or a purported class. Defendant further contends that Plaintiff cannot succeed on
his claims because he has not suffered any injury and is therefore not a “person
aggrieved” by a violation of the BIPA, and cannot succeed on a claim for negligence
under Illinois law. Defendant has further set forth several affirmative defenses,
including but not limited to the statute of limitations, equitable doctrine of laches,
equitable doctrines of estoppel, waiver, ratification and/or acquiescence, assumption
of the risk, good faith and substantial compliance and superseding/intervening
causes in connection with Plaintiff’s knowledge of, implicit consent to and continued
use of the time-clock in issue during the course of his employment with Defendant.
On November 2, 2017, Defendant filed a motion to dismiss under Rule
12(b)(1) and 12(b)(6). R. 16. On November 6, 2017, Defendant moved to withdraw its
motion to dismiss and sought leave to file an amended version raising only Rule
12(b)(6) arguments for dismissal. R. 22. The Court granted that motion on
November 8, 2017. R. 26. On November 22, 2017, Plaintiff filed a motion to remand
the case to state court. R. 29. Briefing on Plaintiff’s motion to remand was
completed on December 15, 2017. For the reasons that follow, Plaintiff’s motion to
remand is granted.
DISCUSSION
The issue before the Court is whether Defendant’s removal of this class action
lawsuit from state court was proper.
The removal statute states that:
Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
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which the district courts of the United States have
original jurisdiction, may be removed by the defendant or
the defendants, to the district court of the United States
for the district and division embracing the place where
such action is pending.
28 U.S.C. § 1441(a) (emphasis added). Defendant removed this action based on
federal court jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C.
§ 1332(d)(2)(A). That statute grants federal district courts:
original jurisdiction of any civil action in which the matter
in controversy exceeds the sum or value of $5,000,000,
exclusive of interest and costs, and is a class action in
which . . . [a]ny member of a class of plaintiffs is a citizen
of a State different from any defendant.
Id. After removing this action based on jurisdiction accorded by the CAFA,
Defendant then moved to dismiss the complaint for lack of subject matter
jurisdiction based on the argument that Plaintiff lacked a concrete injury-in-fact
sufficient to confer Article III standing pursuant to the Supreme Court’s ruling in
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).
A similar strategy was adopted by the defendant in Wisconsin Department of
Corrections v. Schacht, 524 U.S. 381 (1998), where Justice Kennedy, in a concurring
opinion, said the following:
Here the State consented to removal but then registered a
prompt objection to the jurisdiction of the United States
District Court over the claim against it. By electing to
remove, the State created the difficult problem confronted
in the Court of Appeals and now here. This is the
situation in which law usually says a party must accept
the consequences of its own acts. It would seem simple
enough to rule that once a State consents to removal, it
may not turn around and say the Eleventh Amendment
bars the jurisdiction of the federal court. Consent to
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removal, it can be argued, is a waiver of the Eleventh
Amendment immunity.
Id. at 393.
Article III standing, unlike Eleventh Amendment immunity, is not waivable
(at least insofar as its non-prudential limitations are concerned 1). AP Siding &
Roofing Co. v. Bank of New York Mellon, 548 Bankr. 473, 484 (N.D. Ill. 2016)
(“[s]tanding . . . is jurisdictional and non-waivable”). What, then, is the consequence
of Defendant raising a Spokeo standing argument in a Rule 12(b)(1) motion to
dismiss for lack of jurisdiction after having removed the case to federal court based
on the representation that the federal court had subject matter jurisdiction over the
case, and then subsequently withdrawing its Rule 12(b)(1) motion?
For the answer to that question, the Court adopts the reasoning of Judge
Bucklo in Mocek v. Allsaints USA Ltd., 220 F. Supp. 3d 910 (N.D. Ill. 2016):
Defendant insists that because federal courts have an
independent obligation to satisfy themselves of their own
jurisdiction before passing on the merits of a claim, it
follows that I must determine whether plaintiff has
Article III standing regardless of whether some other
threshold matter compels remand. But that argument is
belied by Meyers v. Oneida Tribe of Indians of Wisconsin,
836 F.3d 818 (7th Cir. 2016), . . . in which the Seventh
Circuit declined to address standing under Spokeo,
explaining that a federal court is not required to “consider
subject matter jurisdiction over all other threshold
matters.” Id. at 821. Instead, the court explained, a
See MainStreet Org. of Realtors v. Calumet City, Ill., 505 F.3d 742, 747 (7th Cir.
2007) (“[I]f there is no Article III standing, the court is obliged to dismiss the suit
even if the standing issue has not been raised . . . . But nonconstitutional lack of
standing belongs to an intermediate class of cases in which a court can notice an
error and reverse on the basis of it even though no party has noticed it and the error
is not jurisdictional, at least in the conventional sense.”).
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federal court “has leeway to choose among threshold
grounds for denying audience to a case on the merits.” In
Meyers, the court concluded that because sovereign
immunity—a non-jurisdictional threshold issue—was
“easily and readily” resolved in the defendant’s favor, it
made little sense to waste judicial resources, or those of
the parties, resolving the Spokeo issue. Id. The court
emphasized that its approach did not run afoul of the
Supreme
Court’s
prohibition
on
“hypothetical
jurisdiction,” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 101 (1998), because
“jurisdiction is vital only if the court proposes to issue a
judgment on the merits.” [citation omitted].
So, too, in this case, the jurisdictional issue is “easily and
readily” resolved based on the parties’ post-removal
agreement that federal jurisdiction is lacking. Indeed, the
court remanded to state court sua sponte on that very
basis in Black v. Main Street Acquisition Corp., 2013 WL
1295854 (N.D.N.Y. Mar. 27, 2013), concluding that when
“no party shoulders the burden of proving jurisdiction,”
remand is required under § 1447(c). Id. at *1 (declining to
dismiss the case with prejudice). Black is consistent with
the Seventh Circuit’s holding in Meyers that district
courts have “leeway” to select among threshold grounds
for disposing of a case and should do so in a resourceefficient manner. Because the parties are now aligned in
the view that I lack subject-matter jurisdiction, I need not
accept defendants’ invitation to undertake a Spokeo
analysis to conclude that remand is required.
....
. . . [T]o the extent . . . defendant’s real objective in
pressing the Spokeo issue is to “shorten the proceedings in
state court,” I am not inclined to resolve an issue that is
not actually in dispute, solely for the purpose of
advancing, in some advisory fashion, an argument
defendant may wish to make in state court. See Smith v.
Wisc. Dep’t of Agric., Trade & Consumer Prot., 23 F.3d
1134, 1139 (7th Cir. 1994) (“Wisconsin’s doctrines of
standing and ripeness are the business of the Wisconsin
courts, and it is not for us to venture how the case would
there be resolved.”).
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In short, with no party willing to overcome the
presumption against federal jurisdiction, remand is
appropriate on any analysis.
Id. at 912-14.
Defendant attempts to distinguish this case from Mocek by the fact that it
has withdrawn its motion to dismiss for lack of jurisdiction. In doing so, Defendant
asserts, it is not arguing in favor of Plaintiff having an Article III injury sufficient to
confer federal court jurisdiction but only taking the position that the issue need not
be resolved at this time. According to Defendant:
[T]he fatal flaw in Plaintiff’s argument is that the Article
III standing issue has not been agreed upon and remains
undecided. In particular, this Court may determine from
the case-specific allegations of Plaintiff’s Complaint that
Plaintiff has established standing under Article III.
Alternatively, this Court may determine that Plaintiff is
entitled to amend his Complaint or that later resolution of
the Article III standing issue is more appropriate than
determining such issue at the dismissal stage. Should this
Court find that such standing has been established or the
issue should be reserved for later ruling, jurisdiction
before this Court remains appropriate under the CAFA.
R. 31 at 3-4. In other words, Defendant’s post-withdrawal position is not that the
Court lacks Article III case or controversy jurisdiction; instead, Defendant argues
only that it remains to be seen whether the Court has jurisdiction under Article III.
The problem with this position is that Defendant’s “wait and see” approach
negates the basis on which it filed its removal petition. The burden of proving
federal court jurisdiction is on Defendant, the party which removed this action to
federal court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). As the Seventh
Circuit stated in Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7th Cir.
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2005), “[w]hichever side chooses federal court must establish jurisdiction; it is not
enough to file a pleading[ 2] and leave it to the court or the adverse party to negate
jurisdiction.” Id. at 447. By filing a Rule12(b)(1) motion and then withdrawing that
motion while still maintaining that the existence of an Article III injury remains
open to debate, Defendant has abdicated that burden:
[T]he rule in this circuit has been that the court’s
discretion to dismiss for lack of subject matter jurisdiction
when the [party with the burden of proof] could have
pleaded the existence of jurisdiction and when in fact such
jurisdiction exists, should be exercised sparingly. But to
say that dismissals under these circumstances should be
rare does not mean that this step is never appropriate.
See, e.g., Morongo Band of Mission Indians v. Cal. State
Bd. of Equalization, 849 F.2d 1197 (9th Cir. 1988)
(remanding the case with instructions to dismiss for lack
of jurisdiction, and expressly declining to determine
whether jurisdiction existed under § 1332 because the
parties did not plead it). In Littleton [v. Berbling, 468 F.2d
389, 394 (7th Cir. 1972), rev’d sub nom. O’Shea v.
Littleton, 414 U.S. 488 (1974), and vacated sub nom.
Spomer v. Littleton, 414 U.S. 514 (1974)], immediately
after acknowledging the principle that a court usually
should not dismiss a case just because the plaintiff failed
to articulate a basis for jurisdiction that was evidently
proper, we cautioned that “the ultimate duty of pleading
his case rests upon the party and not upon the district
court to divine what is not reasonably there.” 468 F.2d at
394.
Muscarello v. Ogle Cty. Bd. of Comm’rs, 610 F.3d 416, 425-26 (7th Cir. 2010)
(internal quotation marks and some citations omitted).
“Pleading” in this context refers to Defendant’s notice of removal. See Brill, 427
F.3d at 449 (“A defendant’s notice of removal [ ] serves the same function as the
complaint would in a suit filed in federal court.”).
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The Court declines to decide whether there is Article III standing because
neither party is willing to address the issue. On the one hand, Plaintiff seeks
remand to the state court and therefore does not want to argue to this Court it has
sustained a concrete injury-in-fact because then it would be conceding subject
matter jurisdiction in federal court. Defendant, on the other hand, would like to
argue that Plaintiff has not sustained an Article III injury but has withdrawn any
argument to that effect in a ploy to avoid being forced out of federal court. The
difference between the two parties is that Plaintiff does not have to take a position
on the standing issue while Defendant does, because Defendant bears the burden of
establishing jurisdiction in this Court.
Notwithstanding its strategic withdrawal of its motion to dismiss for lack of
subject matter jurisdiction, Defendant argues in opposition to Plaintiff’s motion to
remand that satisfaction of the jurisdictional prerequisites under the CAFA is
sufficient for removal purposes and that Defendant, having established CAFA
jurisdiction, may raise the Article III standing issue at some later point in these
proceedings in federal court. But “[t]o say that a court is without jurisdiction to
decide a case on its merits [yet] has jurisdiction merely to remove the case is to
state a contradiction.” Richman Bros. Co. v. Amalgamated Clothing Workers of Am.,
114 F. Supp. 185, 190 (N.D. Ohio 1953). “Section 1441 of Title 28 U.S.C. authorizes
the removal of cases ‘of which the district courts . . . have original jurisdiction’. . . .
‘By jurisdiction [the statute] mean[s] power to entertain the suit, consider the
merits and render a binding decision thereon . . .’” Id. at 190-91 (quoting General
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Inv. Co. v. N.Y. Centr. R.R. Co., 271 U.S. 228, 230 (1926)). “The statute does not
contemplate a result that permits a district court to remove a case which it is
required to dismiss for want of jurisdiction.” Id. at 191.
In any event, Defendant admits that Article III standing based on Spokeo in
the context of Plaintiff’s claims in this case is unsettled. See R. 32 at 2-3. “That
consideration alone supports remand, as ‘[a]ny doubt regarding jurisdiction should
be resolved in favor of the states.’ Indeed, as a general matter, federal courts ‘should
interpret the removal statute narrowly and presume that the plaintiff may choose
his or her forum.’” Mocek, 220 F. Supp. 3d at 912-13 (citation omitted) (quoting Doe
v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)).
CONCLUSION
Defendant, as “the proponent of federal jurisdiction bears the risk of nonpersuasion.” Brill, 427 F.3d at 448. Defendant has gone from arguing that this
Court does not have jurisdiction to taking the position that federal jurisdiction may
or may not later prove to be lacking. In short, Defendant does not even attempt and
thus necessarily fails to persuade the Court that federal jurisdiction exists.
Accordingly, the Court grants Plaintiff’s motion to remand to state court. R. 29.
Also, for the reasons given in Mocek, 220 F. Supp. 3d at 914, the Court grants
Plaintiff’s request for costs and attorney’s fees pursuant to 28 U.S.C. § 1447(c). 3
In Brahamsha v. Supercell OY, 2017 WL 3037382 (D.N.J. July 17, 2017)
(unpublished), the court disagreed with Judge Bucklo’s analysis in Mocek on the
ground that “the appropriate threshold question” was “whether Defendant
possessed an objectively reasonable basis for the removal” based solely on the
CAFA, separating out the issue of whether “subject matter jurisdiction would
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ENTERED:
___
Honorable Thomas M. Durkin
United States District Judge
Dated: December 20, 2017
subsequently be defeated by the lack of standing.” Id. at *6. The Court already has
explained, however, that removal jurisdiction involves both the issue of jurisdiction
under the CAFA and the issue of standing. It was incumbent on Defendant,
therefore, to consider the Article III standing issue when it removed the action to
this Court.
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