Jane Doe v. Fenix Internet, LLC

Filing 61

MEMORANDUM Opinion and Order Signed by the Honorable Nancy L. Maldonado on 6/5/2024.(ca, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS

Jane Doe et al.,
Plaintiffs,

No. 1:21-cv-06624

v.

Honorable Nancy L. Maldonado

Fenix Internet, LLC,
Defendant.

Memorandum Opinion and Order
Plaintiffs Jane Doe, Yolene Reyes, and Daniel A. Bartels (collectively, “Plaintiffs”) bring
this class action against Defendant Fenix Internet, LLC (“Fenix Internet”). Plaintiffs allege that
Fenix Internet is the operator of the website Onlyfans.com, and that it violated the Illinois
Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/15(a)–(e), and the Illinois Right of
Publicity Act (“IRPA”), 765 ILCS 1075/1 et seq., through its alleged use of an automated age
verification process. Pending before the Court are three motions: Fenix Internet’s motion to
dismiss for lack of personal jurisdiction (Dkt. 26), Fenix Internet’s motion to dismiss under the
doctrine of forum non conveniens (Dkt. 28), and Plaintiffs’ motion to remand, or in the alternative,
for leave to conduct jurisdictional discovery as to the citizenship of the putative class members
(Dkt. 50.)
For the reasons discussed in this opinion and order, the Court grants Fenix Internet’s
motion to dismiss for lack of personal jurisdiction. (Dkt. 26.) In short, the Court concludes that
Plaintiffs have failed to establish specific personal jurisdiction, as they have not come forward
with evidence to dispute Fenix Internet’s affirmative evidence demonstrating that it has no
involvement in the age and content verification processes that are the subject of the lawsuit. Fenix
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Internet is therefore dismissed as a defendant based on a lack of personal jurisdiction. Accordingly,
Fenix Internet’s alternative motion to dismiss under the doctrine of forum non conveniens (Dkt.
28), and Plaintiffs’ motion to remand or for jurisdictional discovery (Dkt. 50), are both denied as
moot. The Court will give Plaintiffs one opportunity to file a further amended complaint within 30
days of this Order if they have a good faith basis to believe they can name a proper defendant for
whom jurisdiction and venue in this District are satisfied. The Court cautions Plaintiffs that based
on its review of the parties’ briefing the Court questions whether this forum is appropriate, given
that it appears the only proper defendant is based internationally, and Plaintiffs may be subject to
forum selection clauses. Regardless, if Plaintiffs believe they have a good faith basis to file an
amended complaint, they may do so. Further, if Plaintiffs file an amended complaint, they must
either identify Jane Doe or file a motion demonstrating that exceptional circumstances warrant
anonymity. See supra at note 2.
Background1
A. Allegations in Second Amended Complaint
The following allegations are taken from the Second Amended Complaint (“SAC”) (Dkt.
24.) Plaintiffs allege that Defendant Fenix Internet is the United States-based operator of
Onlyfans.com. (Id. ¶¶ 18, 22.) Onlyfans.com is a social media website that primarily features
adult-entertainment content, where “Fans” pay for content created by “Content Creators.” (Id.
¶¶ 18–19.) Fenix Internet allegedly provides a platform for the Content Creators and pays them a
set percentage of the subscriptions and purchases made by site visitors. (Id. ¶ 22.) Fenix Internet
is the entity that collects funds from purchases made on Onlyfans.com and distributes earnings to
the Content Creators. (Id. ¶ 33.)

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In citations to the record, page numbers are taken from the CM/ECF headers.

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Because of the adult nature of the majority of Onlyfans.com content, an individual must go
through a registration process in order to become a Content Creator, which includes verification
of age and identity. (Id. ¶ 23.) Specifically, a Content Creator must submit a photo of a government
ID, in addition to a photo (a “selfie”) of them holding the government ID, after which they are
verified as a Content Creator within 24 to 48 hours. (Id. ¶ 24.) In addition to this initial verification
process, Fenix Internet allegedly uses a “Fast Automated Verification” process for verifying
Content Creators’ age and identity. (Id. ¶ 25.) This Fast Automated Verification process may be
triggered if a Content Creator’s content is flagged for signs of suspicious activity, or otherwise as
part of Fenix Internet’s internal review requirements. (Id.) When a Content Creator uses the
automated verification process, they are forwarded to a portal within the Onlyfans.com website
that asks them to submit a selfie of their face. (Id. ¶ 26.) They must then submit a picture of the
front and back of a valid government ID that features their face. (Id.) The automated verification
process creates a geometric profile of the Content Creator’s face and compares it to the biometric
profile that it extracts from the user’s ID, to see if there is a match. (Id. ¶ 27.) Through the
automated verification process, Fenix Internet has allegedly collected the facial biometrics of
thousands of individuals, including Illinois residents. (Id.)
After receiving complaints globally about a lack of sufficient efforts to ensure that Content
Creators were not minors, in the summer of 2021 Onlyfans.com undertook a mass verification
campaign that required many of its Content Creators to re-verify their age and identity through the
automated identity verification process. (Id. ¶ 28.) Content Creators had to undergo the verification
process before they could sell any more content or withdraw any fund balances on their
Onlyfans.com account. (Id.)

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In addition, to ensure that uploaded content does not feature minors, Onlyfans.com uses an
automated artificial intelligence (“AI”) content review system provided by SightEngine to review
all uploaded content. (Id. ¶ 29.) Thus, in addition to Content Creators going through a biometric
identity verification process, all individuals appearing in uploaded content also have their facial
biometrics collected and analyzed by the AI review system. (Id. ¶ 30.) Even those individuals who
appear in content but are not aware that such content has been uploaded have their biometrics
analyzed by the AI review system. (Id.)
Fenix Internet did not make publicly available a written policy regarding its biometrics
retention and deletion practices. (Id. ¶ 31.) Neither did Fenix Internet obtain written consent from
individuals who were not aware that they appeared in content uploaded to Onlyfans.com and would
be subject to the AI review system. (Id. ¶ 32.) As the entity that collects funds from purchases
made on Onlyfans.com and distributes earnings to the Content Creators, Fenix Internet allegedly
profited from the facial biometrics it obtained from the Content Creators. (Id. ¶ 33.)
Plaintiffs, who are three individuals seeking to represent a class, make additional
allegations specific to their individual experiences with Onlyfans.com. Plaintiffs Doe2 and Reyes
allege that they are Illinois residents who completed the age verification process to become
Content Creators in 2019 and 2021, respectively. (Id. ¶ 36, 41.) Both Doe and Reyes also allege
they were required to re-verify their ages and identities at various times through the automated age

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Plaintiff Doe, an individual who voluntarily engages as a Content Creator on Onlyfans.com, has not explained
why she should be allowed to proceed under a pseudonym, and she would likely not be permitted to in light of Seventh
Circuit precedent. See Doe v. Vill. of Deerfield, 819 F.3d 372, 376–77 (7th Cir. 2016) (“We have repeatedly voiced
our disfavor of parties proceeding anonymously, as anonymous litigation runs contrary to the rights of the public to
have open judicial proceedings and to know who is using court facilities and procedures funded by public taxes.”).
The Seventh Circuit recently reiterated that only “exceptional circumstances”—such as a substantial risk of harm—
justifies the use of a fictitious name for an adult. See Doe v. Loyola Univ. Chicago, 100 F.4th 910, 913 (7th Cir. 2024)
(citing Doe v. Trustees of Indiana Univ., 101 F.4th 485, 491 (7th Cir. 2024)). On the other hand, the mere “desire to
keep embarrassing information secret does not justify anonymity.” Id. Plaintiffs must abide by this caselaw if they file
a further amended complaint, and if Doe intends to seek to proceed anonymously, she will be required to demonstrate
exceptional circumstances beyond mere embarrassment.

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verification process. (Id. ¶¶ 38, 41.) Doe and Reyes state that they did not want their personal
identities revealed and did not wish to submit to the automated verification process, but they were
forced to do so if they wished to withdraw any funds or post any additional content for sale. (Id.
¶¶ 39, 43.) Each time they submitted selfies of their faces and pictures of their driver’s licenses,
the verification technology extracted facial biometrics from the selfies and compared them to the
facial biometrics extracted from the driver’s licenses. (Id. ¶¶ 40, 44.)
Plaintiff Bartels’s allegations are somewhat different: in December 2020, Bartels
discovered that a video featuring him had been uploaded to Onlyfans.com and was listed as paid
content, which could only be viewed by purchasing it. (Id. ¶ 46.) Bartels is not a Content Creator
and had never consented to the video being uploaded or sold. (Id. ¶ 47.) Fenix Internet allegedly
collected Bartels’s facial biometrics through its AI content review system. (Id. ¶ 48.)
B. Procedural History and Additional Evidence Related to Personal Jurisdiction
Plaintiff Jane Doe initiated this case as a putative class action in November 2021 in the
Circuit Court of Cook County, Illinois. Fenix Internet subsequently removed the action to this
Court on December 10, 2021, and proceeded to file a motion to dismiss for lack of personal
jurisdiction and under the doctrine of forum non conveniens. (Dkts. 1, 11.) Doe proceeded to file
a First Amended Complaint (“FAC”), adding several additional named plaintiffs, including Reyes
and two other plaintiffs, but subsequently sought leave to amend again before Fenix Internet had
responded to the FAC. (Dkts. 18, 22.) Plaintiffs then filed the operative SAC on April 21, 2022,
dropping two of the added plaintiffs from the FAC, and substituting in Plaintiff Bartels (leaving
Doe, Reyes, and Bartels as the named plaintiffs). (Dkt. 24.) In the SAC, Plaintiffs bring a number
of claims under BIPA individually and on behalf of a putative class based on the collection of
biometric information, and Plaintiff Bartels additionally brings a claim under the IRPA based on

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the alleged use of his identity in videos without his consent for commercial purposes. (See
generally id.)
Fenix Internet responded to the SAC with a motion to dismiss for lack of personal
jurisdiction, and an alternative motion to dismiss under the doctrine of forum non conveniens.
(Dkts. 26, 28.) Fenix Internet’s motion to dismiss for lack of personal jurisdiction also contains
the alternative arguments that the Court should dismiss several of the Plaintiffs’ claims for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. 26 at 15–19.)
With respect to its personal jurisdiction argument in particular, Fenix Internet contends that
it cannot be subject to personal jurisdiction in Illinois because it is a Delaware entity with its
principal place of business in Delaware, and further because Plaintiffs’ claims do not arise out of
or relate to Fenix Internet’s contacts with Illinois. (Dkt. 27 at 5–6.) Fenix Internet argues that
Plaintiffs have sued the wrong entity, and that it is the United Kingdom-based parent company of
Fenix Internet, Fenix International Limited (“Fenix International”), that actually operates
OnlyFans.com and manages the age verification processes that are the subject of the SAC. (Id.)
For support, Fenix Internet attaches a declaration from the Director of Fenix International, Lee
Taylor, who states that Fenix International is the sole member of Fenix Internet, which is one of
Fenix International’s subsidiaries. (Dkt. 27-2.) Taylor states that Fenix Internet is based in
Delaware, has no property or employees in Illinois, and that its sole responsibility is to provide
payment processing services to the operator of Onlyfans.com, which is actually Fenix
International. (Id. ¶¶ 4, 9, 15.) According to Taylor, Fenix Internet facilitates the payments between
Fans and Content Creators, and works with third-party payment processors to collect payments
and distribute the money through other providers to Content Creators. (Id.) As to the operation of
Onlyfans.com generally and the age verification and content review processes referenced in the

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SAC, Taylor states that those matters are all overseen by Fenix International, and that Fenix
Internet is not involved in conducting age verification, does not engage in any collection of
biometric data from Content Creators, and has no relationship or involvement with the third-party
vendors that perform verifications for Fenix International. (Id. ¶¶ 6, 11–13.)
Plaintiffs filed oppositions to both of Fenix Internet’s motions, but as will be discussed
further below, they notably did not submit any of their own affidavits or evidence in opposition to
Taylor’s claims. (Dkts. 33, 34.) Separately, after briefing on both of Fenix Internet’s motions were
complete, Plaintiffs filed their own motion to remand or in the alternative for leave to conduct
jurisdictional discovery (Dkt. 50.) In their motion, Plaintiffs argue that the removal was improper
because the Court lacks subject matter jurisdiction over Plaintiffs’ claims pursuant to the “local
controversy” exception under the Class Action Fairness Act (“CAFA”). As part of that argument,
Plaintiffs contend that more than two-thirds of the proposed classes and subclasses are Illinois
residents, and therefore removal under CAFA is inappropriate. (Id. at 7.) Plaintiffs alternatively
state that, should the Court require further evidence regarding the citizenship of the members of
the putative class, it should permit the parties to engage in expedited discovery on that limited
issue. (Id. at 7 n.1.)
Legal Standard
Federal Rule of Civil Procedure 12(b)(2) allows a party to seek dismissal of a complaint
based on a lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Federal courts typically look to
the state law of the forum in which they are based to determine if they can exercise personal
jurisdiction over an out-of-state defendant. See, e.g., Walden v. Fiore, 571 U.S. 277, 283 (2014)
(citing Daimler AG v. Bauman, 134 S.Ct. 746, 753 (2014)). “The Illinois long-arm statute permits
the exercise of personal jurisdiction to the full extent permitted by the Fourteenth Amendment's

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Due Process Clause. Thus, the relevant inquiry is ‘whether the exercise of personal jurisdiction
would violate federal due process.’” Hernandez v. Omnitracs, LLC, No. 1:22-CV-00109, 2024
WL 1376352, at *3 (N.D. Ill. Mar. 31, 2024) (internal citations omitted). Under the Due Process
Clause, a state court may exercise either general or specific personal jurisdiction. See, e.g., Ford
Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. 351, 358 (2021). General jurisdiction refers to
the forum in which a party, either a person or corporation, is “essentially at home.” Id. Specific
jurisdiction covers those cases where a party is not “at-home” in the forum state, but has sufficient
“minimum contacts” with the forum state such that the exercise of jurisdiction “does not offend
traditional notions of fair play and substantial justice.” See NBA Props., Inc. v. HANWJH, 46 F.4th
614, 621 (7th Cir. 2022) (citing Int'l Shoe Co. v. State of Wash., Off. of Unemployment Comp. &
Placement, 326 U.S. 310, 316 (1945)).
Normally, for the purposes of a motion to dismiss, the allegations in a complaint are
assumed to be true and all reasonable inferences are drawn in favor of the nonmoving party. See
Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 966 (7th Cir. 2016); Kubiak v. City of
Chicago, 810 F.3d 476, 480–81 (7th Cir. 2016). “When a defendant challenges personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2), however, the plaintiff bears the burden
of demonstrating the existence of jurisdiction.” Purdue Rsch. Found. v. Sanofi-Synthelabo, S.A.,
338 F.3d 773, 782 (7th Cir. 2003). Furthermore, where “the defendants submit evidence opposing
the district court’s exercise of personal jurisdiction, the plaintiffs must similarly submit affirmative
evidence supporting the court’s exercise of jurisdiction.” Matlin v. Spin Master Corp., 921 F.3d
701, 705 (7th Cir. 2019) (citing Purdue Rsch. Found., 338 F.3d at 782). The Court generally must
accept statements in the parties’ affidavits as true and resolve any conflicts in the plaintiffs’ favor.
See NBA Properties, 46 F.4th at 620.

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Discussion
The parties have filed several competing motions raising challenges to (1) this Court’s
personal jurisdiction over Fenix Internet; (2) the propriety of removal and the Court’s subject
matter jurisdiction over Plaintiffs’ claims; and (3) whether Plaintiffs have plausibly stated claims
for relief. While issues of subject matter jurisdiction are normally resolved first, there is no
“mandatory sequencing of jurisdictional issues, and courts have discretion to decide matters of
personal jurisdiction first.” See, e.g., KM LPTV of Chicago-13, LLC v. S.O.S. Media Holdings,
Inc., No. 14 C 10227, 2015 WL 12834764, at *2 (N.D. Ill. Sept. 15, 2015) (cleaned up); see also
Intec USA, LLC v. Engle, 467 F.3d 1038, 1040 (7th Cir. 2006) (“[T]here is no priority between
subject-matter jurisdiction and personal jurisdiction.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S.
574, 588 (1999) (recognizing that district courts are within their discretion to resolve
“straightforward personal jurisdiction” issues first rather than subject matter jurisdiction). Here
because the Court concludes that the personal jurisdiction issue is straightforward and requires
dismissal, the Court will resolve that issue first.
At the outset, the Court notes that Plaintiffs have conceded that general jurisdiction does
not apply here, and the only question is whether Fenix Internet can be subject to specific
jurisdiction in Illinois. (See Dkt. 32 at 6–9.) There are three requirements for a court to exercise
specific personal jurisdiction over a defendant: (1) the defendant must have purposefully availed
itself of the privilege of conducting business in the forum state or directed its activities at the forum
state; (2) the plaintiff’s injury must have arisen out of the defendant’s forum-related activities; and
(3) the Court’s exercise of personal jurisdiction must “comport with traditional notions of fair play
and substantial justice.” Curry v. Revolution Lab’ys, LLC, 949 F.3d 385, 392–93 (7th Cir. 2020)
(citation omitted).

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Fenix Internet focuses on the second requirement and argues that it cannot be subject to
specific jurisdiction in Illinois because Plaintiffs’ alleged injuries and causes of action under BIPA
and the IRPA did not “arise out of” Fenix Internet’s activities in Illinois. (See Dkt. 27 at 5, 13–14.)
Fenix Internet contends, as set out in the Taylor declaration, that it is a Delaware entity with no
employes or office in Illinois, and that it acts as merely a payment processor for its parent-company
Fenix International. (Dkt. 27 at 5.) According to the declaration, Fenix International is incorporated
and registered in England and Wales and headquartered in London, is the entity that actually
operates Onlyfans.com, and is the party that Plaintiffs should have sued. (Id.) Fenix Internet
maintains that, contrary to Plaintiffs’ allegations, because it is merely a payment processor, it does
not use or interact with purported biometric information, and it has no involvement in the age
verification process, which is handled by Fenix International. (Dkt. 27 at 6–7.) Fenix Internet thus
argues that, because it does not use or interact with biometric information, Plaintiffs’ BIPA claims
here do not arise out of or relate to Fenix Internet’s contacts with Illinois, which are solely related
to its processing of payments. (Dkt. 27 at 11–12.) Similarly, Fenix Internet argues that Plaintiff
Bartels’s IRPA claims are based on the Onlyfans.com content review system, and its use of content
for commercial purposes, which again, Fenix Internet has nothing to do with, as it is merely the
payment processor. (Dkt. 27 at 14.)
In response, Plaintiffs concede that the allegations in the SAC need not be accepted if they
are refuted through undisputed affidavits. (Id.) (citing Swanson v. City of Hammond, 411 F. App’x
913, 915 (7th Cir. 2011)). Nevertheless, Plaintiffs argue that they need only make out a prima facie
case of specific personal jurisdiction, which they insist they have done. (Id. at 7); see generally
Curry, 949 F.3d at 393 (“[W]ithout the benefit of an evidentiary hearing, the plaintiff bears only
the burden of making a prima facie case for personal jurisdiction.”) (citation omitted). Specifically,

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Plaintiffs argue that Fenix Internet purposefully availed itself of the Illinois market, and argue the
claims arise out of those Illinois-directed contacts, because Fenix Internet was previously
headquartered in Illinois at the time that it allegedly collected the biometrics and when Plaintiff
Bartels discovered the IRPA violation. (Id. at 8–9.)
The Court agrees with Fenix Internet and finds that Plaintiffs have failed to make a prima
facie showing of personal jurisdiction, as there is no indication that Plaintiffs’ injuries giving rise
to their BIPA and IRPA claims arise out of Fenix Internet’s activities in Illinois. Fenix Internet has
provided affirmative evidence in the form of a sworn declaration that Fenix Internet does not
collect or interact with biometrics, and has no involvement in the age verification process, content
review process, or the operation of Onlyfans.com generally. This affidavit further shows that Fenix
Internet’s only activities in Illinois are as a payment processor for Fenix International, which is the
entity that actually operates Onlyfans.com and handles age verification and content review.
Because Fenix Internet provided affirmative evidence challenging personal jurisdiction, Plaintiffs
needed to present their own affirmative evidence to dispute the fact that Fenix Internet does not
actually operate Onlyfans.com and has no involvement in the activities giving rise to their alleged
injuries. Had Plaintiffs submitted any such evidence, the Court would have resolved any factual
disputes in Plaintiffs’ favor. But Plaintiffs’ briefing utterly ignores the Taylor declaration and
Fenix Internet’s evidence about Fenix International, and instead boldly attempts to fall back on
their allegations in the SAC that Fenix Internet is the entity that collects their biometric data. In
resolving a dispute over personal jurisdiction, however, the Court need not accept Plaintiffs’
allegations when they are controverted by sworn affidavits from the defendant. See, e.g., J&J
Sports Prods., Inc. v. Fialko, No. 17 C 3275, 2018 WL 576144, at *1 (N.D. Ill. Jan. 26, 2018)
(“The jurisdictional allegations in the Complaint are taken as true unless controverted by the

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defendant's affidavits.”) (emphasis added) (citation omitted); see also Matlin, 921 F.3d at 705
(“[where] the defendants submit evidence opposing the district court’s exercise of personal
jurisdiction, the plaintiffs must similarly submit affirmative evidence supporting the court’s
exercise of jurisdiction.”).
Here then, in the absence of evidence from Plaintiffs, the Court accepts it as true for the
purposes of assessing personal jurisdiction that Fenix Internet is not the entity involved in age
verification or content review, but merely handles payment processing. Therefore, even assuming
that Fenix Internet purposefully availed itself of the Illinois market by directing payment
processing services to Onlyfans.com Content Creators and Fans in Illinois, Plaintiffs have not
demonstrated that their alleged BIPA and IRPA injuries arise out of or relate to those paymentprocessing activities in Illinois. It is simply not enough for the purposes of establishing specific
personal jurisdiction that Fenix Internet may have interacted with Plaintiffs with respect to
payment processing, or directed such payment processing activities to Illinois, if those contacts
have no relation to the BIPA and IRPA claims at issue. See generally Bristol-Myers Squibb Co. v.
Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 264, (2017) (“For specific
jurisdiction, a defendant's general connections with the forum are not enough . . . What is needed
. . . is a connection between the forum and the specific claims at issue.”); see also Curry, 949 F.3d
at 400 (“[E]ven regularly occurring sales of a product in a State do not justify the exercise of
jurisdiction over a claim unrelated to those sales.”). In short, Plaintiffs have failed to establish a
necessary element of specific personal jurisdiction—a connection between Fenix Internet’s
contacts with Illinois and the claims at issue.3

3
Plaintiffs suggest in passing that Bartels’s IRPA claim relates to payment processing because Fenix Internet’s
activities “processing payments and issuing pay stubs, relate directly to its profiting from Plaintiff Bartels’ likeness.”
(Dkt. 34 at 8.) But again, the record evidence from Fenix Internet contradicts this claim. Taylor’s declaration indicates
Fenix Internet is not involved in content review or the sale of content, or anything related to the operation of

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Plaintiffs’ repeated contention, in its briefing and its SAC, that Fenix Internet was
previously “headquartered” in Illinois does nothing to change this finding. As an initial matter,
Plaintiffs’ framing of Fenix Internet’s prior office as its “headquarters” is factually unsupported.
Plaintiffs do not explain in their personal jurisdiction briefing the source of this claim, but in their
separate motion to remand they point to several annual reports from Fenix International which
listed Fenix Internet as having a “registered office” in Illinois in 2020 and 2021. (Dkt. 50 at 4 n.3.)
But a “registered office” is not the same thing as a headquarters—a business may have several
offices, but its headquarters is the “actual center of direction, control, and coordination, i.e., the
‘nerve center.’” See Hertz Corp. v. Friend, 559 U.S. 77, 78 (2010). Fenix Internet, in a separate
declaration from Taylor, indicates that the registered office in Illinois was simply used as a mailing
address, and that the company’s principal place of business from which it controlled its business
was in Delaware. (Dkt. 51-2 ¶ 5.) Plaintiffs have presented no evidence to dispute these assertions
or which would suggest the office in Illinois was used for anything other than mailing, and it
therefore did not constitute a headquarters.
In any event, Fenix Internet’s previous presence in Illinois, regardless of the extent of that
presence, is irrelevant to the issue of specific jurisdiction. A corporation’s headquarters and
principal place of business is relevant to the issue of general personal jurisdiction in determining
the forum in which the business is at home. But Plaintiffs have conceded that general jurisdiction
does not exist, and that the issue is specific jurisdiction. As discussed above, for specific
jurisdiction to exist, the defendant’s contacts with the forum must relate to the claim. Thus, even
if Fenix Internet had an office in Illinois, that fact is irrelevant to specific jurisdiction if Fenix’s

Onlyfans.com outside of processing payments. There is thus nothing to support the contention that Fenix Internet, as
opposed to Fenix International, “profited from Bartels’s likeness through the processing of payments.” Thus, Fenix
Internet’s activities are unrelated to Bartels’s claims and do not establish specific jurisdiction.

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presence and office have no relation to the claims. As already explained, Fenix Internet’s activities
in Illinois, which were limited to payment processing, have nothing to do with Plaintiffs’ BIPA
and IPRA claims. To the extent that Fenix Internet accepted mail at an Illinois office, that fact
alone bears no relation to Plaintiffs’ alleged injuries of their biometric information being collected
or their likenesses being used for commercial purposes by Fenix International.
In sum, while Plaintiffs repeatedly allege that Fenix Internet had its headquarters in Illinois,
and collected their biometric data, Plaintiffs have failed to come forward with affirmative evidence
to controvert Fenix Internet’s sworn declarations disputing these allegations. Accepting the
statements in the declarations as true, which the Court must do in the absence of any affirmative
evidence to the contrary, the Court concludes that it lacks personal jurisdiction over Fenix Internet,
as the company is based in Delaware and Plaintiffs’ claims do not arise from Fenix Internet’s
contacts with Illinois. In short, it is apparent to the Court that Plaintiffs have sued the wrong entity,
and their BIPA and IPRA claims based on the collection of their biometric data implicate Fenix
Internet’s parent, Fenix International. Whether or not Plaintiffs can maintain claims against Fenix
International, and the forum they would be required to bring those claims in, are questions that the
Court need not resolve. All that matters is that the Court lacks personal jurisdiction over the named
defendant Fenix Internet, which mandates dismissal.4

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Plaintiffs request, in a passing footnote, that if the Court concludes they have not set forth a prima facie showing
of specific personal jurisdiction, they be allowed to conduct limited jurisdictional discovery pertaining to Fenix
Internet’s contacts with Illinois. (Dkt. 34 at 9 n.1.) Even if this request were properly presented—and a request buried
in a footnote is not proper—the Court would reject it. Plaintiffs appear to misunderstand the standard for granting
jurisdictional discovery. As Fenix Internet points out in reply, “[a]t a minimum, the plaintiff must establish a colorable
or prima facie showing of personal jurisdiction before discovery should be permitted.” Cent. States, Se. & Sw. Areas
Pension Fund v. Reimer Express World Corp., 230 F.3d 934, 946 (7th Cir. 2000) (emphasis added). In other words,
Plaintiffs must first set forth a prima facie showing of jurisdiction to warrant discovery—not attempt to use discovery
to establish a prima facie case of personal jurisdiction in the first instance. As discussed above, Plaintiffs have failed
to establish such a colorable or prima facie showing of personal jurisdiction. Further, Plaintiffs do not provide any
details of what kinds of discovery they would seek, or how that discovery would controvert the facts in the Taylor
declaration, which Plaintiffs completely ignore in their briefing. In short, Plaintiffs have given the Court no reason to
believe that jurisdictional discovery is warranted or would reveal facts that dispute the statements in Taylor’s sworn
affidavit.

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As a result of the lack of personal jurisdiction, the Court need not reach the parties’
arguments regarding whether Plaintiffs have stated a claim under Federal Rule of Civil Procedure
12(b)(6), or the arguments in the motion to dismiss for forum non conveniens (Dkt. 28). In
addition, Plaintiffs’ arguments in the motion to remand or in the alternative for leave to conduct
jurisdictional discovery (Dkt. 50) relate to different jurisdictional issues under CAFA, which the
Court need not reach in light of the lack of personal jurisdiction.
Although Plaintiffs have already amended their complaint several times, this is the first
time the Court is addressing the merits of the personal jurisdiction issue. The Court will therefore
give Plaintiffs leave to file an amended complaint within 30 days. As noted above, Plaintiffs should
only file a further amended complaint if they have a good faith basis to believe they can name a
proper defendant and if they can satisfy personal jurisdiction and venue as to such defendant,
especially considering the forum selection clause issues discussed in the forum non conveniens
briefing.
Conclusion
For the foregoing reasons, the motion to dismiss for lack of personal jurisdiction (Dkt. 26)
is granted. The motion to dismiss for forum non conveniens (Dkt. 28) and the motion to remand
or in the alternative to conduct jurisdictional discovery (Dkt. 50) are denied as moot. Fenix Internet
is dismissed as a defendant for lack of personal jurisdiction. Plaintiffs have 30 days from the date
of this Order to file a Third Amended Complaint, if they believe they have grounds to do so.
ENTERED: 6/5/24
___________________________
Nancy L. Maldonado
United States District Court Judge

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