Dancel v. Groupon, Inc.

Filing 113

MEMORANDUM Opinion and Order Signed by the Honorable Ronald A. Guzman on 10/10/2018: For the reasons stated below, the Court concludes that Plaintiff has standing to sue Groupon in federal court and thus denies that basis for Plaintiff's motion to remand. The Court, however, has determined that additional briefing is required with respect to the timing of the removal. [For further details see Statement]. Mailed notice (is, )

Case: 1:18-cv-02027 Document #: 113 Filed: 10/10/18 Page 1 of 4 PageID #:2735

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Christine Dancel, individually and on
behalf of others similarly situated,
Plaintiff,
v.
Groupon, Inc.,
Defendant.

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Case No. 18 C 2027
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court concludes that Plaintiff has standing to sue
Groupon in federal court and thus denies that basis for Plaintiff’s motion to remand. The Court,
however, has determined that additional briefing is required with respect to the timing of the
removal.
STATEMENT
In the instant suit, Plaintiff, individually and on behalf of others similarly situated, sued
Groupon in state court, alleging that by “using individuals’ photographs and likenesses [as
posted on Instagram] without their written consent for its own material gain,” Groupon has
violated the Illinois Right of Publicity Act, 765 ILCS 1075/1 et seq. (“IRPA”). (Compl., Dkt. #
2-1, ¶ 6.) Groupon removed the case to this Court after it was pending in state court for
approximately two years.
Among several motions currently pending is Plaintiff’s motion to remand the case to the
Circuit Court of Cook County, asserting in part that Groupon has not demonstrated that Plaintiff
has Article III standing. While the parties dispute whether either of them actually challenges
Plaintiff’s standing–based on whether Plaintiff has suffered a sufficiently “concrete and
particularized injury” under Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)–the Court directed
the parties to brief the issue further given the Court’s responsibility to confirm that it has subjectmatter jurisdiction over the case. See Dixon v. Wash. & Jane Smith Cmty.-Beverly, No. 17 C
8033, 2018 WL 2445292, at *8 (N.D. Ill. May 31, 2018) (noting that while “[s]ubject matter
jurisdiction has not been expressly challenged . . . . because it has been cast into doubt, albeit
indirectly, by the defendants’ motions to dismiss–and because courts have an independent duty
to ensure that jurisdiction exists–the Court will . . . decid[e] the underlying question of standing
prior to determining the propriety of remanding the case to the state court.”).
To have Article III standing to sue in federal court, “a plaintiff must have ‘(1) suffered an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is

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likely to be redressed by a favorable judicial decision.’” Taylor v. McCament, 875 F.3d 849, 853
(7th Cir. 2017) (quoting Spokeo, 136 S. Ct. at 1547). IRPA provides that “[t]he right to control
and to choose whether and how to use an individual’s identity for commercial purposes is
recognized as each individual’s right of publicity.” 765 ILCS 1075/10. Here, Plaintiff alleges
that she was deprived of this right when Groupon used her photo without her consent–in other
words, when it deprived her of the right to control and choose whether she would allow a person
or entity to use her identity in its advertisements and, if so, how it would be used–the exact right
the IRPA was passed to protect. See Wheeler v. Midland Funding, LLC, No. 15 C 11152, 2017
WL 3235683, at *5 (N.D. Ill. July 31, 2017) (concluding that debt collection letter which “failed
to inform [the plaintiff] that the statute of limitations had run on his debt while trying to collect
his debt and [the plaintiff’s allegation] that he was confused about the status of his debt due to
[the defendants’] failure to inform him of his debt” conferred standing because these were
“exactly the type of injur[ies] the FDCPA was enacted to prevent.”). As noted by the Seventh
Circuit:
The basis of a right of publicity claim concerns the message—whether the plaintiff
endorses, or appears to endorse the product in question. One can imagine many
scenarios where the use of a photograph without consent, in apparent endorsement
of any number of products, could cause great harm to the person photographed.
Toney v. L’Oreal USA, Inc., 406 F.3d 905, 910 (7th Cir. 2005). Moreover, contrary to other cases
in which mere “procedural” violations of a statute occurred, the Seventh Circuit has
acknowledged that “the dissemination to a third party of information in which a person has a right
to privacy is a sufficiently concrete injury for standing purposes.” Dixon, 2018 WL 2445292, at
*10 (citing Gubala v. Time Warner Cable, Inc., 846 F.3d 909, 910 (7th Cir. 2017) (plaintiff
lacked standing because he “has not alleged that Time Warner 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.”)). For these reasons, the Court concludes that Groupon has shown
that Plaintiff alleges a concrete and particularized injury at this stage of the litigation.
Plaintiff also moves to remand the case to state court on the ground that Groupon’s
removal was untimely. The class-action complaint was originally filed in state court on February
5, 2016, seeking relief on behalf of Illinois residents who had their Instagram images used by
Groupon without their consent. On March 16, 2018, Plaintiff filed an amended motion for class
certification, seeking certification of two classes: the Instagram Class, comprising all persons who
maintained an Instagram account and whose photograph was used by Groupon for an Illinois
business; and the Personal Photo Subclass, comprising members of the Instagram Class whose
likeness appeared in any photograph acquired and used by Instagram. Within thirty days of the
amended motion for class certification being filed, Groupon removed the action pursuant to the
Class Action Fairness Act (“CAFA”)1 and 28 U.S.C. § 1446(b)(3), the latter of which states in
1

Pursuant to CAFA, a federal court has subject-matter jurisdiction over class actions
where the class has more than 100 members, the parties are minimally diverse, and the amount in
controversy exceeds $5 million. Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547,
2

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relevant part that:
if the case stated by the initial pleading is not removable, a notice of removal may
be filed within 30 days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.
28 U.S.C. § 1446(b)(3) (emphasis added). According to Groupon, because the amended motion
for class certification eliminated the original class limitation to “Illinois residents,” thus opening
the class to individuals outside of Illinois, the filing of that motion was when it first ascertained
that the requirement of minimal diversity necessary under CAFA was met.2
For her part, Plaintiff contends that the original 2016 state-court complaint was removable
despite the fact that the alleged class was limited to Illinois residents. In particular, Plaintiff
asserts that her proposed original class was limited to Illinois residents, not Illinois citizens, and
because diversity is based on citizenship, not residency, Groupon could have removed the case
upon its initial filing in state court. In other words, Groupon’s apparent presumption that Illinois
residents are necessarily domiciled in (i.e., citizens of) Illinois was misplaced and, according to
Plaintiff, Groupon should have removed the case earlier.
Having reviewed the parties’ briefs and conducted its own research on this issue, the
Court concludes that additional briefing from the parties will be helpful in resolving the
remainder of Plaintiff’s motion to remand. Plaintiff is directed to file a brief within 14 days of the
date of entry of this order, addressing the following: (1) what, if any, is the burden on a removing
defendant to ascertain the citizenship of plaintiffs generally, and more particularly, putative class
members, both in an initial pleading and when subsequent pleadings, motions, and papers are
filed; (2) other than the pleadings and interrogatory responses pointed out by Plaintiff as
purportedly putting Groupon on notice that minimal diversity existed under CAFA, is there any
other information provided in discovery (documents, deposition testimony, etc.) or other
correspondence that may have put Groupon on notice that either the initial class included nonIllinois citizens or that Plaintiff had a specific and concrete intention to amend its class definition;
and (3) are either the home-state or local-controversy exceptions, 28 U.S.C. §§ 1332(d)(3) and
(4), to CAFA implicated in this case, and if so, how?
The Court acknowledges that the parties have covered some of these issues to varying
degrees, but directs the parties to focus their additional briefing on CAFA cases (to the extent
551-52 (2014). Minimal diversity exists when any member of the plaintiff class is a citizen of a
state different from any defendant. Murphy v. Foster Premier, Inc., No. 17 CV 8114, 2018 WL
3428084, at *2 (N.D. Ill. July 16, 2018).
2

It is undisputed that Groupon is a Delaware corporation with its principal place of
business in Illinois and is thus a citizen of Illinois and Delaware.
3

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possible), and to apply the law to the specific facts of this case. In the event case law is lacking in
the Seventh Circuit, the Court directs the parties to expand their discussion to include other
jurisdictions, particularly if cases from other circuits are more on point with the facts of this case.
Moreover, the parties are not restricted to the three issues identified by the Court if they believe
other issues should be considered in resolving the remainder of the motion to remand. Groupon
shall file a response within 14 days of Plaintiff’s supplemental filing. No reply shall be filed
unless directed by the Court.

Date: October 10, 2018

________________________________
Ronald A. Guzmán
United States District Judge

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