Goings v. UGN, Inc.
Filing
54
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 6/13/2018. Mailed notice. (mgh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
George
Goings,
individually, )
and on behalf of all others )
similarly situated
)
)
Plaintiff,
)
v.
) No. 17-cv-9340
)
)
)
UGN, Inc., AEP NVH OPCO, LLC )
d/b/a/
Applied
Acoustics )
International,
)
)
Defendants.
Memorandum Opinion and Order
From October of 1996 to October of 2017, George Goings was
employed by defendants UGN and AAI, the latter entity having
purchased
the
former
during
employment.1
plaintiff’s
Approximately twelve years ago, UGN began requiring plaintiff to
scan his fingerprint at the beginning and end of each workday to
track his time. AAI continued this practice upon its acquisition
of UGN, and around June of 2017, AAI began requiring employees
to scan their entire handprints.
Plaintiff
County
on
defendants’
sued
behalf
defendants
of
practice
in
himself
of
the
and
a
collecting,
1
Circuit
class,
Court
of
Cook
alleging
that
storing,
and
using
I follow the parties’ lead in referring to defendant AEP NVH
OPC, LLC as “AAI.”
1
employees’ finger- and handprints violates Illinois’ Biometric
Information Privacy Act (“BIPA”), 740 ILCS, 14/1, et seq., and
common law of negligence. Defendant UGN removed the action to
this court, where it now seeks dismissal under Fed. R. Civ. P.
12(b)(6) for failure to state a claim on which relief may be
granted. In a separate motion to dismiss, AAI likewise argues
that dismissal is appropriate under Rule 12(b)(6), and it adds
that plaintiff lacks Article III standing because the complaint
does
not
federal
articulate
jurisdiction.
any
In
“concrete
response
injury”
to
as
required
defendants’
for
motions,
plaintiff filed a motion to remand, arguing that if neither
defendant is willing to argue in favor of federal jurisdiction,
the case should be remanded to state court. Plaintiff also seeks
attorneys’ fees and costs associated with “Defendants’ improper
removal of this case.” For the reasons that follow, I grant
plaintiff’s motion for remand but deny his request for fees and
costs.
I.
The Illinois legislature passed BIPA in 2008 “in response
to concerns about the growing use of biometric identifiers and
information
procedures.”
14/5).
in
financial
transactions
and
security
screening
Dixon, 2018 WL 2445292, at *8 (citing 740 ILCS
The legislature found that:
2
Biometrics are unlike other unique identifiers that
are used to access finances or other sensitive
information. For example, social security numbers,
when compromised, can be changed. Biometrics, however,
are biologically unique to the individual; therefore,
once compromised, the individual has no recourse, is
at heightened risk for identity theft, and is likely
to withdraw from biometric-facilitated transactions.
740 ILCS 14/5(c). In view of these findings, the legislature
determined that public welfare and safety would be served by the
enactment
of
a
statute
“regulating
the
collection,
use,
safeguarding, handling, storage, retention, and destruction of
biometric
identifies
Plaintiff
alleges
and
information.”
that
defendants
Id.
at
violated
§ 14/5(g).
substantive
provisions of BIPA that require private entities to: 1) inform
plaintiff and the class in writing of the specific purpose and
length of time for which the prints were being collected, used
and stored; 2) provide a publicly available retention schedule
and guidelines for destruction of the prints; and 3) obtain a
written
release
authorizing
them
to
collect
and
store
the
prints. Id. at § 14/15(b). Plaintiff asserts that defendants’
failure
to
take
these
steps
also
amounts
to
actionable
negligence.
This case joins the growing ranks of BIPA actions filed in
this district and elsewhere in which courts have adjudicated the
sufficiency of the complaint against challenges brought under
Rules 12(b)(1) and/or 12(b)(6). See, e.g., Vigil v. Take-Two
3
Interactive
(S.D.N.Y.
remanded
Software,
Jan.
sub
27,
nom.
Inc.,
2017),
235
aff'd
Santana
v.
F.
in
Supp.
part,
Take-Two
3d
499,
vacated
Interactive
in
507-19
part,
Software,
Inc., 717 F. App’x 12 (2d Cir. 2017) (dismissing under Rule
12(b)(1) for failure to plead Article III injury-in-fact); Patel
v. Facebook Inc., 290 F. Supp. 3d 948 (N.D. Cal. 2018) (holding
injury-in-fact requirement satisfied and declining to dismiss
under Rule 12(b)(1)); Dixon v. The Washington and Jane Smith
Community,
No.
17
(Kennelly,
J.)
(analyzing
standing
and
C.
declining
8033,
to
2018
WL
implicit
dismiss
2445292
challenge
under
(May
to
Rules
31,
2018)
Article
12(b)(1)
III
or
12(b)(6)); Howe v. Speedway, No. 17 C 7303, 2018 WL 2445541 (May
31, 2018) (Wood, J.) (analyzing implicit challenge to Article
III standing and remanding for lack of federal jurisdiction);
Barnes v. ARYZTA, LLC, 288 F. Supp. 3d 834 (N.D. Ill. 2017)
(remanding without deciding whether federal jurisdiction existed
where no party argued in favor of federal jurisdiction); Monroy
v. Shutterfly, Inc., No. 16 C 10984, 2017 WL 4099846, at *8 n.5
(N.D. Ill. Sept. 15, 2017) (finding federal jurisdiction secure
and declining to dismiss under Rule 12(b)(6)); Rivera v. Google
Inc.,
238
F.
Supp.
3d
1088
(N.D.
Ill.
2017)
(declining
to
dismiss under Rule 12(b)(6)); McCollough v. Smarte Carte, Inc.,
No.
16
C
03777,
2016
WL
4077108
(N.D.
Ill.
Aug.
1,
2016)
(dismissing under Rules 12(b)(1) and 12(b)(6) for failure to
4
allege
injury-in-fact
or
statutory
standing
as
person
“aggrieved” by BIPA violation); Norberg v. Shutterfly, Inc., 152
F. Supp. 3d 1103 (N.D. Ill. 2015) (declining to dismiss under
Rule 12(b)(6)).
Before examining where this case falls in the taxonomy of
federal BIPA litigation, however, I pause briefly to address
plaintiff’s argument that the case must be remanded (and fees
and costs awarded) on the ground that defendants inappropriately
removed the case to federal court only to turn around and seek
dismissal for lack of federal jurisdiction. It is true that the
Seventh Circuit recently admonished the defendant in Collier v.
SP
Plus
Corporation,
889
F.3d
894,
897
(7th
Cir.
2018)
for
taking such an approach, deeming it a “dubious strategy.” But
the basis on which the Collier court remanded the case was its
conclusion that the plaintiffs lacked Article III standing. Id.
at 896. In other words, the court did not remand based on the
defendants’
affirmative
litigation
conclusion
gamesmanship,
that
the
but
plaintiffs
rather
had
not
on
its
pled
the
injury-in-fact required for federal jurisdiction. Id. at 896-97.
See also Dixon, 2018 WL 2445292 at *4-*5 (declining to remand
based on defendants’ unwillingness, post-removal, to argue in
favor of federal jurisdiction and holding affirmatively that the
plaintiff’s
allegations
satisfied
5
constitutional
standing
requirements).
Accordingly,
I
turn
to
the
substance
of
the
standing issue.
A
survey
of
federal
BIPA
cases
reveals
that
the
vast
majority of courts to have evaluated standing in this context
have acknowledged that more than “bare procedural violations” of
the statute must be alleged to satisfy the requirement of a
“concrete
and
particularized”
injury
that
is
“actual
or
imminent, not conjectural or hypothetical” under Spokeo Inc. v.
Robins, 136 S. Ct. 1540, 1548 (2016). See, e.g., Dixon, 2018 WL
2445292 at *8-*9; Howe, 2018 WL 2445541, at *4; Vigil, 235 F.
Supp. 3d at 511; McCollough, 2016 WL 4077108, at *3-*4. But see
Patel, 290 F. Supp. 3d at 953-54 (observing that procedural
violations
alone
can
legislature
“conferred
plaintiff’s
concrete
violation
presents
“manifest
the
procedural
interests
a
real
concrete
risk
and
of
injury”
right
where
harm
to
where
protect
the
to
the
a
procedural
that
concrete
interest,” and holding that “the abrogation of the procedural
rights
mandated
injury.”).
The
by
BIPA
violations
necessarily
plaintiff
amounts
attributes
to
to
a
concrete
his
former
employers, namely, their failure to comply with the statute’s
notice
and
consent
provisions,
are
accurately
described
as
procedural. See, e.g., Dixon, 2018 WL 2445292 at *9.
Of the cases cited above, plaintiff’s is most akin to Howe,
in which the plaintiff likewise asserted BIPA and negligence
6
claims against his employer for its collection, storage, and use
of fingerprint scans in conjunction with timekeeping. See 2018
WL 2445541, at *1. Indeed, the complaints filed in the two cases
are near carbon-copies in material respects, asserting the same
substantive
injuries:
provisions
invasion
of
of
the
statute
and
claiming
privacy
rights;
informational
the
same
injuries
based on the defendants’ failure to provide information required
by the statute; and mental anguish. Compare Goings Am. Cmplt. at
¶¶ 49-51 with Howe Cmplt., No. 17 C 7303 DN 1-1 at ¶¶ 44-47.
Although the defendant in Howe ostensibly challenged only the
plaintiff’s “statutory standing” under Rule 12(b)(6), because
its arguments “cast doubt on Howe’s Article III standing,” the
court evaluated the defendant’s implicit constitutional argument
and concluded that remand was appropriate.
The
court
began
by
observing
that
the
complaint
lacked
allegations suggesting that the plaintiff’s biometric data was
compromised or was likely to be compromised. Accordingly, it
dismissed the plaintiff’s claims of mental anguish and invasion
of privacy as “precisely the type of conjectural or hypothetical
injury that cannot support Article III standing.” Howe, 2018 WL
2445541, at *4 (citing Clapper v. Amnesty Int’l USA, 568 U.S.
398, 416 (2013), Whitmore v. Arkansas, 495 U.S. 149, 158 (1990),
and Gubala v. Time Warner Cable, Inc., 846 F.3d 909, 912 (7th
Cir. 2017). The court then analyzed the plaintiff’s asserted
7
informational
object”
is
disclosure
injury
and
concluded
to
protect
biometric
of
information,
that
that
data,
because
not
injury
BIPA’s
to
was
“core
require
the
insufficient,
standing alone, to support standing. Id. at *5 (citing Federal
Election
Commission
v.
Akins,
524
U.S.
11,
21
(1998),
and
Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 888 (7th Cir.
2017).
With respect to plaintiff’s alleged privacy and emotional
injuries, Gubala is particularly instructive. The plaintiff in
Gubala—a former cable subscriber—discovered eight years after
cancelling his subscription that the cable operator continued to
store his personal information, including his home address, date
of birth, social security number, and credit card information.
846 F.3d at 911. He claimed that the cable operator’s failure to
destroy
that
information
violated
provisions
of
the
Cable
Communications Policy Act requiring cable operators to destroy
their
customers’
personal
information
if
it
is
no
longer
necessary for the purpose for which it was collected. Id. The
court assumed that the defendant’s conduct violated the statute
but affirmed dismissal of the complaint on the ground that the
plaintiff lacked standing, reasoning that absent any allegation
that the cable operator “has ever given away or leaked or lost
any of his personal information or intends to give it away or is
at risk of having the information stolen from it,” any risk of
8
harm to plaintiff’s privacy rights was too remote to satisfy
Article III standing. Id. at 910-11.
The same is true of the privacy and emotional injuries
plaintiff asserts here. Indeed, a comparison between this case
and Howe, on the one hand, and Dixon on the other, illustrates
the distinction between conjectural, abstract privacy injuries
and concrete and particularized ones. In Dixon, the plaintiff
alleged that her employer required her to scan her fingerprints
into
a
biometric
disclosed”
her
knowledge
or
timekeeping
biometric
consent.
data
2018
device
to
WL
a
and
“systematically
third-party
2445292,
at
without
*1.
The
her
court
emphasized that “in addition to alleging what might accurately
be characterized as ‘bare procedural violations’ of BIPA, Dixon
also has alleged that [the defendant] disclosed her fingerprint
data
to
[a
defendants
third
party]
violated
her
without
right
her
to
knowledge
privacy
in
and
her
that
the
biometric
information—the very right that the drafters of BIPA sought to
protect.”
2018
WL
2445292,
at
*9.
The
court
observed
that
“[o]btaining or disclosing a person’s biometric identifiers or
information
without
her
consent
or
knowledge
necessarily
violates that person’s right to privacy” and held that it was
the
defendant’s
alleged
disclosure
of
Dixon’s
biometric
data
that distinguished the case from McCollough, Vigil, and Gubala.
Id.
at
*9-*10
(“Dixon
has
alleged
9
what
the
plaintiffs
in
McCollough, Vigil, and Gubala did not. Specifically, she has
alleged that [the defendant] disclosed her fingerprint scan to
[a third party] without informing her or obtaining her consent
to do so.”).
Plaintiff’s allegations here, by contrast, are more closely
aligned with those in McCollough and Vigil. In McCollough, the
plaintiff alleged that the defendant violated BIPA by requiring
her to scan her fingerprint in order to rent its product, but
did not provide her with the notice required by the statute or
obtain her consent. 2016 WL 4077108, at *1. The court assumed,
however, that “a customer would understand that [the defendant]
collects and retains their fingerprint data for at least the
duration
of
otherwise,”
the
id.
rental
at
n.
[since]
1.
It
the
went
system
on
to
would
hold
not
that
work
absent
allegations that the defendant had disclosed her data to any
other entity, the technical violations she alleged did not give
rise to a concrete privacy injury. Id. at *3. In Vigil, the
plaintiffs challenged the defendants’ use of facial scans to
create personalized avatars for use in video games. The court
noted
that
biometric
stating
the
plaintiffs
information
that
the
after
facial
had
provided
agreeing
scans
would
to
“be
the
terms
defendant
and
visible
their
conditions
to
you
and
others you play with and may be recorded or screen captured
during gameplay,” and after providing their biometric data in “a
10
lengthy involved process that takes about 15 minutes, during
which time the gamer must stare up-close at the camera while
also
turning
his
or
her
head
from
side-to-side
at
regular
intervals.” 235 F. Supp. 3d at 505. Citing McCollough and Gubala
among other cases, the court held that the alleged technical
violations of BIPA failed to articulate a concrete injury. Id.
at 511.
Like the plaintiffs in each of these cases, Goings was
aware that he was providing his biometric data to defendants and
does not claim that defendants have disclosed (either purposely
or unwittingly) that information to any other entity without his
consent. This scenario is unlike the one in Dixon, where the
defendant
allegedly
disclosed
the
plaintiff’s
data
to
third
parties, and it is also unlike the ones in Patel and Monroy,
where the plaintiffs’ biometric data was allegedly collected and
stored without their knowledge. See Patel, 290 F. Supp. 3d at
955 (distinguishing McCollough and Vigil on the ground that the
plaintiffs in those cases knew that their biometric data was
being collected and stored); Monroy, 2017 WL 4099846 at *8 n. 5
(same). Consistently with all of these cases, I conclude that
the privacy and emotional injuries plaintiff alleges are too
speculative and abstract to support Article III standing. And
because
BIPA
disclosure,
I
is
not
agree
essentially
with
the
concerned
courts
11
in
Howe
with
and
information
Vigil
that
plaintiff’s
alleged
violation
of
BIPA’s
notice
provisions
is
insufficient, on its own, to support federal jurisdiction. In
short, this case falls neatly in line with Howe, Vigil, and
McCollough and sits apart from Dixon, Patel, and Monroy.
In accord with these cases and with the Seventh Circuit’s
decisions in Gubala and Groshek, I conclude that plaintiff lacks
standing to pursue his claims in federal court and remand the
case to the Circuit Court of Cook County. I deny plaintiff’s
request for attorneys’ fees and costs, however. The basis for
the
request
litigation
federal
is
process
defendants’
by
jurisdiction.
putative
successively
As
noted
manipulation
asserting
above,
the
and
of
the
repudiating
defendants
adopted
that “dubious strategy” in Collier; yet the court declined to
award fees and costs resulting from the defendants’ tactical
maneuvering. See 889 F.3d at 897. Moreover, plaintiff’s request
for fees and costs is even less compelling than in Collier,
since neither defendant in this case has “tried to have it both
ways
by
asserting,
then
immediately
disavowing,
federal
jurisdiction.” Mocek v. Allsaints USA Ltd., 220 F. Supp. 3d 910,
914 (N.D. Ill. 2016). Only UGN sought removal to federal court,
and only AAI seeks dismissal for lack of federal jurisdiction.
Indeed, UGN maintains that federal jurisdiction is appropriate.
See UGN Resp. to Mot. for Remand, DN 41 at 2-3. Neither Mocek,
12
nor any other authority plaintiff cites, supports an award of
fees and costs on under such circumstances.
ENTER ORDER:
Elaine E. Bucklo
United States District Judge
Dated: June 13, 2018
13
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