Johns v. Paycor, Inc.
Filing
99
ORDER. For the reasons explained in the attached Memorandum & Order, Defendant's Motion for Continued Stay (Doc. 83) is DENIED. The stay of the case is LIFTED. Consistent with the directives on page 16 of the Memorandum & Order, the parties are DIRECTED, within 21 days of this date, to meet, confer, and then file a Joint Status Report on the appropriate next steps in this case. (Joint Status Report due by 5/29/2024). Signed by Judge David W. Dugan on 5/8/2024. (jnh)
IN THE UNITED STATES DISTRICT COURT
FOR SOUTHERN DISTRICT OF ILLINOIS
KELLIN JOHNS, individually and on )
behalf of all others similarly situated, )
and JUAN BARRON,
)
)
Plaintiffs,
)
)
vs.
)
)
PAYCOR, INC.,
)
)
Defendant.
)
Case No. 3:20-cv-264-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court is Defendant’s Motion for Continued Stay (“Motion”). (Doc. 83).
Plaintiffs filed a Response in Opposition, and Defendant filed a Reply in Support, of the
Motion. (Docs. 92 & 98). As stated below, the Motion is DENIED and the stay is LIFTED.
I. BACKGROUND
On October 29, 2020, Plaintiffs filed a First Amended Class Action Complaint (Doc.
40), alleging violations of the Biometric Information Privacy Act (“BIPA”), 740 ILCS 14/1
et seq. Plaintiffs were employees of Club Fitness, Inc., who worked at various of its fitness
centers in the St. Louis Metro east region. (Doc. 40, pg. 12). The proposed class includes
“[a]ll…individuals working in the State of Illinois who had their fingerprints, hand
geometry, or other biometric data collected, captured, received, or otherwise obtained or
disclosed by Defendant during the applicable statutory period.” (Doc. 40, pg. 14).
Defendant designs and manufactures “Biometric Time Clocks,” utilized by Club
Fitness, Inc., “that require scans of users’ biometric data in order for those users to clock
1
in and out of work.” (Doc. 40, pgs. 1-2, 12). Notwithstanding BIPA’s requirements,
Defendant allegedly “disregards [the] Biometric Time Clock users’ statutorily protected
privacy rights and unlawfully collects, captures, otherwise obtains, stores, maintains, and
uses their biometric data in violation of BIPA.” (Doc. 40, pgs. 4, 9). Specifically, Plaintiff
alleges three causes of action under 740 ILCS 14/15 related to Defendant’s alleged failure
to: (1) inform Plaintiffs, in writing, of the specific purpose for and length of time that their
biometric data was collected, captured, otherwise obtained, stored, maintained, and
used; (2) obtain a written release from Plaintiffs to collect, capture, otherwise obtain,
store, or use their biometric data; (3) provide a publicly available retention schedule and
guidelines for the permanent destruction of Plaintiffs’ biometric data; and (4) obtain
consent from Plaintiffs to disclose, redisclose, or otherwise disseminate their biometric
data to third parties. (Doc. 40, pgs. 4-5, 9-12, 17-21). Plaintiffs seek, inter alia, certification
of a class, declaratory relief, injunctive relief, and statutory damages. (Doc. 40, pgs. 5, 22).
On November 12, 2020, Defendant filed a Motion to Dismiss the First Amended
Class Action Complaint under Federal Rule of Civil Procedure 12(b)(6). (Docs. 44 & 45).
However, after the Motion to Dismiss was fully briefed and while it was still under
advisement, Defendant filed a Motion to Stay all proceedings pending the resolution of
certain appeals in the Seventh Circuit and Illinois Appellate Court. (Doc. 55).
On May 11, 2021, the Court granted Defendant’s Motion to Stay, reasoning the
appeals pending in the Seventh Circuit and the Illinois Appellate Court could control and
play a significant part in determining the rights of the parties in this litigation. (Doc. 65,
pgs. 3-5). The Court also recognized, with Defendant’s Motion to Dismiss and Plaintiff’s
2
Motion for Class Certification under Federal Rule of Civil Procedure 23 (Doc. 61) pending
before the Court, the case had reached a point in development where significant effort
and resources could be unnecessarily wasted in the absence of a stay. (Doc. 65, pg. 4). As
such, the case was stayed and the parties were ordered to file a status report within 14
days of each decision from the Seventh Circuit or the Illinois Appellate Court. (Doc. 65,
pg. 5). Defendant’s Motion to Dismiss and Plaintiff’s Motion for Class Certification were
denied, without prejudice, and with leave to refile after the stay. (Doc. 65, pg. 5).
On August 28, 2023, the Court was informed by the parties in a Joint Status Report
that the last appeal contemplated by the Order Staying Case had been resolved. (Docs. 65
& 80). However, the parties disagreed about whether the Court should lift the instant
stay, despite the fact that the initial basis for the stay no longer existed. (Doc. 80, pg. 2).
As a result, on August 30, 2023, the Court entered the following Order:
ORDER regarding the parties’ Joint Status Report (Doc. 80)….On the one
hand, Plaintiffs request that the stay be lifted. Plaintiffs seek to file another
Joint Status Report on Discovery, a proposed schedule for the completion
of discovery, and a Renewed Motion for Class Certification. On the other
hand, Defendant acknowledges that the purpose for the present stay has
been fulfilled. However, Defendant argues an independent basis for a
continued stay exists under the Colorado River Doctrine. See Colorado River
Water Conservation Dist. v. U.S., 424 U.S. 800 (1976). Defendant states “[t]wo
earlier-filed actions that are now consolidated...are currently pending in the
Circuit Court of Cook County, Illinois, addressing identical issues raised in
this case against Defendant. Therefore, Defendant requests that the Court
set a briefing schedule for a motion to stay based on the Colorado
River Doctrine. Now, the Court FINDS it would be prudent for the parties
to brief the Defendant’s claim with respect to the Colorado River Doctrine
before the present stay is lifted. It would be improvident to lift that stay
only to later find that an independent basis for the stay remains. See Adkins
v. VIM Recycling, Inc., 644 F.3d 483, 497-98 (7th Cir. 2011) (“The [Colorado
River] abstention doctrine...permits federal courts to defer to a ‘concurrent
state proceeding’ as a matter of ‘wise judicial administration.’ [Citation].
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The doctrine comes into play when parallel state court and federal court
lawsuits are pending between the same parties.”). Accordingly, the
case REMAINS STAYED.
(Doc. 82).
The Court set a briefing schedule for a Motion for Continued Stay Under
the Colorado River Doctrine. (Doc. 82). The parties have now complied with that briefing
schedule. Below, the Court addresses the arguments on the propriety of a continued stay.
II. ANALYSIS
Federal courts “have a ‘virtually unflagging obligation’ to exercise [the]
jurisdiction” afforded by Congress. Huon v. Johnson & Bell, Ltd., 657 F.3d 641, 645 (7th Cir.
2011) (quoting Colorado River Water Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976));
accord TruServ Corp. v. Flegles, Inc., 419 F.3d 584, 591 (7th Cir. 2005). However, under the
Colorado River doctrine, a federal court may, in exceptional circumstances, abstain from
exercising jurisdiction due to a parallel proceeding in a state court. Baek v. Clausen, 886
F.3d 652, 663 (7th Cir. 2018) (quoting Deb v. SIRVA, Inc., 832 F.3d 800, 814 (7th Cir. 2016));
Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1018 (7th Cir. 2014). When doing so,
the federal court “promote[s] ‘wise judicial administration’ ” by conserving judicial
resources and allowing for a comprehensive disposition of the case without inconsistent
results. Baek, 886 F.3d at 663 (quoting Colorado River, 424 U.S. at 817-18); Freed, 756 F.3d at
1018 (citing Day v. Union Mines, 862 F.2d 652, 657 (7th Cir. 1988); Lumen Constr., Inc. v.
Brant Constr. Co., Inc., 780 F.2d 691, 694 (7th Cir. 1985)). The Court stresses, though, “the
task of the district court ‘is not to find some substantial reason for the exercise of federal
jurisdiction’ but instead ‘to ascertain whether there exist “exceptional” circumstances, the
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“clearest of justifications,”…to justify the surrender of that jurisdiction.’ ” Huon, 657 F.3d
at 645-46 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25-26
(1983)) (Emphasis in original); TruServ Corp., 419 F.3d at 591 (same).
For federal and state proceedings to be parallel, “there must be ‘a substantial
likelihood that the state litigation will dispose of all claims presented in the federal
case.’ ” Freed, 756 F.3d at 1018 (quoting Lumen, 780 F.2d at 695). The federal and state
proceedings need not be identical, but the Court “must examine whether ‘substantially
the same parties are contemporaneously litigating substantially the same issues in
another forum.’ ” Id. at 1018-19 (quoting Interstate Material Corp. v. City of Chicago, 847
F.2d 1285, 1288 (7th Cir. 1988)); accord Huon, 657 F.3d at 646. The Court also assesses
whether the federal and state proceedings assert the same legal allegations or arise from
the same set of facts. Freed, 756 F.3d at 1019 (citing Tyrer v. City of South Beloit, Illinois, 456
F.3d 744, 752 (7th Cir. 2006)). The presence of additional parties or issues in the federal or
state proceedings does not necessarily preclude a finding that the proceedings are
parallel. AAR Int’l, Inc. v. Nimelias Enter. S.A., 250 F.3d 510, 520 (7th Cir. 2001) (citing
Caminiti & Iatarola, Ltd. v. Behnke Warehousing, Inc., 962 F.2d 701 (7th Cir. 1992); Lumen,
780 F.2d at 695). All doubts about the parallel nature of the federal and state proceedings
are resolved in favor of an exercise of jurisdiction. Freed, 756 F.3d at 1019 (quoting AAR
Int’l, Inc., 250 F.3d at 520; see also Huon, 657 F.3d at 646 (“There is a presumption against
abstention…and if there is any ‘substantial doubt’ that the concurrent state proceeding
will be ‘ “an adequate vehicle for the complete and prompt resolution of the issues
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between the parties,” ’ a stay would be a ‘ “serious abuse of discretion.” ’ ”); TruServ
Corp., 419 F.3d at 591 (same, and emphasizing the “remarkably difficult” standard).
If the proceedings in the federal and state courts are parallel, then the Court weighs
ten non-exclusive factors for determining the propriety of abstention under the Colorado
River doctrine, including: (1) whether the state assumed jurisdiction over property; (2) the
inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation;
(4) the order in which jurisdiction was obtained by the concurrent forums; (5) the source
of the governing law; (6) the adequacy of the state proceeding to protect the federal
plaintiff’s rights; (7) the relative progress of the state and federal proceedings; (8) the
existence of concurrent jurisdiction; (9) the availability of removal; and (10) the vexatious
or contrived nature of the federal claims. Baek, 886 F.3d at 663; accord Freed, 756 F.3d at
1018. No single factor is determinative; however, the Court must carefully weigh its
obligation to exercise jurisdiction against the factors counselling against such an exercise
of jurisdiction. Baek, 886 F.3d at 663 (quoting Colorado River, 424 U.S. at 818-19).
In this case, Defendant notes “well prior to the time that th[is]…lawsuit was filed,
there were two substantially identical lawsuits, asserting nearly identical claims on behalf
of interchangeable classes, which were already pending in the state circuit court in Cook
County.” See Ragsdale v. Paycor, Inc., No. 17-CH-13911 (Cir. Ct. Cook County); Bolds v.
Arro Corp. and Paycor, Inc., No. 18-CH-1811 (Cir. Ct. Cook County); (Doc. 84, pg. 4). The
plaintiffs in those cases, which were subsequently consolidated, are asserting claims
under § 15 based on the use of Defendant’s “Biometric Time Clocks” at work. (Docs. 84,
pgs. 4-5; 92, pg. 2). Like this case, the proposed classes in the consolidated cases include
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individuals whose biometric data was collected, captured, stored, transmitted,
disseminated, or used by or on behalf of Defendant within Illinois at any time within the
applicable limitations period. (Doc. 84, pgs. 4-5). Since Plaintiffs in this case fit within
those classes, Defendant argues there is a substantial likelihood that the state proceedings
will dispose of the claims in this case. (Doc. 84, pgs. 5-6). In other words, Defendant
asserts this case and the state proceedings are parallel. (Doc. 84, pgs. 5-6).
In light of the parallel nature of the cases, Defendant next argues the relevant
factors weigh in favor of Colorado River abstention. (Doc. 84, pg. 6). It asserts: (1) the
convenience-of-forum factor is neutral, though Plaintiff Johns initially filed this case in
state court; (2) abstention would avoid piecemeal litigation because the state court is
litigating the same claims under § 15 on behalf of the same proposed classes, the actions
will each require costly and time-consuming class certification and summary judgment
briefing, and there is “potentially a significant risk” of inconsistent outcomes; (3) the state
court was vested with jurisdiction before this Court; (4) BIPA is a state law “that has been
extensively interpreted by” the Illinois courts; (5) the state action has been “heavily
litigation” with multiple motions to dismiss, written discovery and depositions,
discovery disputes, multiple requests for summary judgment, ongoing summary
judgment discovery, and a pending motion for summary judgment on the viability of the
§ 15 claims, indicating a decision in the state proceedings could be dispositive and avoid
the costly next steps in this case; (6) there is concurrent jurisdiction, which weighs in favor
of a stay due to the efficiencies associated with allowing the state court to preside over
the claims; (7) the state proceedings cannot be removed to federal court; and (8) the
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nature of the federal claims weighs in favor of abstention because, again, this case was
removed after Plaintiff initially filed the claims in state court. (Doc. 84, pgs. 6-8). For these
reasons, Defendant argues abstention under Colorado River is warranted. (Doc. 84, pg. 2).
In Response, Plaintiff argues Defendant makes a “cursory attempt” to satisfy the
prerequisites for abstention under Colorado River. (Doc. 92, pg. 1). On the question of
whether the cases are parallel, Plaintiff argues the state proceedings “involve[] a Paycor
timekeeping solution that is much different than the one at issue here.” (Doc. 92, pgs. 1,
3, 5). This case purportedly involves Defendant’s “own proprietary timekeeping
solution,” Perform Time and Perform Time biometric timeclocks, while the state
proceedings involve biometric timeclocks that are “white labeled” and sold by Defendant
for a third-party partner. (Doc. 92, pgs. 4-7). Defendant allegedly hosts, stores, and
manages the biometric information generated from its Perform Time biometric
timeclocks, but it does not host or have access to the software or data collected through
the third-party partner’s timeclocks. (Doc. 92, pgs. 4-7). In fact, the plaintiffs in the state
proceedings allegedly “explicitly represented” that their case “will not intersect with the
Paycor solution at issue here.” (Doc. 92, pgs. 1, 5). Also, Plaintiffs submit that the state
proceedings do not involve plaintiffs who used Defendant’s Perform Time biometric
timeclock or who, by extension, had their biometrics collected due to that use. (Doc. 92,
pg. 7). Therefore, Plaintiff argues there is no basis to find the state proceedings are parallel
to this case, such that they will dispose of the claims in this case. (Doc. 92, pgs. 1-2, 7).
In addition to arguing the proceedings are not parallel, Plaintiff argues the
relevant factors “weigh heavily against abstention.” (Doc. 92, pgs. 2). More specifically,
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Plaintiff argues: (1) Defendant chose this forum after Plaintiff initially filed suit in the
Circuit Court of Madison County, and Defendant could have, but did not, seek to
consolidate that case with the proceedings in the Circuit Court of Cook County; (2) there
is no risk of piecemeal litigation, as the state proceedings will not protect Plaintiff’s rights,
they do not involve plaintiffs who were subject to Defendant’s Perform Time biometric
timeclocks, the plaintiffs have represented that fact, a judgment will not affect the
Plaintiffs in this case, and Defendant’s liability is much clearer here; (3) even though the
state proceedings were initiated earlier, Plaintiff Johns was the first to file a claim based
on Defendant’s Perform Time biometric timeclocks; (4) the fact that BIPA is an Illinois
state law is irrelevant when the cases are not parallel; (5) this case has been litigated
extensively and is more advanced than the state proceedings, as shown by Plaintiff’s prior
Motion for Class Certification, Defendant’s Motion to Dismiss, and the significant
discovery on both class and merits issues; (6) concurrent jurisdiction exists but, again,
Defendant chose this forum after removing the case from the Circuit Court of Madison
County; (7) Defendant took the opposite approach to the state proceedings since it did
not remove the case(s) to federal court; and (8) Defendant does not argue Plaintiff’s claims
are frivolous or contrived. (Doc. 92, pgs. 7-8, 10-12). For these reasons, Plaintiff argues the
Court has an obligation to exercise jurisdiction rather than to abstain. (Doc. 92, pg. 2).
In Reply, Defendant notes neither the First Amended Class Action Complaint nor
the prior Motion for Class Certification under Rule 23 distinguished between the types
of timeclocks. (Doc. 98, pg. 2). The class proposed in the First Amended Class Action
Complaint allegedly included “all who ‘had their fingerprints, hand geometry or other
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biometric data collected’ regardless of type of clock.” (Doc. 98, pg. 2). Likewise, the
Motion for Class Certification allegedly covered Defendant’s Perform Time biometric
timeclocks and the timeclocks of its third-party partner. (Doc. 98, pg. 2). Finally,
Defendant states “[n]either the complaint in the state court class action nor in this class
action currently contain class definitions that distinguish among clock users.” (Doc. 98,
pg. 3) (Emphasis in original). Defendant contends Plaintiffs should not now be permitted
to pare their claims or to limit the proposed class to avoid a stay. (Doc. 98, pg. 3).
Here, the Court FINDS this case is not parallel to the state proceedings. In the First
Amended Class Action Complaint filed in this case, Plaintiffs allege violations of § 15(a),
(b), and (d) of BIPA. (Doc. 40, pgs. 17-21). They reference fingerprint and hand geometry
scans, as well as the biometric data from such scans, when using Defendant’s biometric
timekeeping devices. (Doc. 40, generally). However, Plaintiffs specifically allege an
experience requiring scans of only “their fingerprints on Paycor’s Biometric Time Clock
at Club Fitness so they could be used as an authentication method to track their time
worked.” (Doc. 40, pg. 12). It was the fingerprint biometric data that was allegedly stored
by Defendant. (Doc. 40, pg. 12). Nevertheless, Plaintiffs’ proposed class includes:
“[a]ll…individuals working in the State of Illinois who had their fingerprints, hand
geometry, or other biometric data collected, captured, received, or otherwise obtained or
disclosed by Defendant during the applicable statutory period.” (Doc. 40, pg. 14).
As noted above, Bolds and Ragsdale were eventually consolidated in the Circuit
Court of Cook County. On June 3, 2022, plaintiffs Bolds and Ragsdale, together with a
third plaintiff, plaintiff Cully, filed a Consolidated Amended Class Action Complaint for
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violations of § 15(a), (b), (c), and (d) of BIPA. (Doc. 85-4, pgs. 13-19). Plaintiffs Bolds and
Ragsdale clarified that their claims were based on allegations that, during their
employment with Defendant’s clients, they were required to scan their biometric
identifiers, i.e., their hand geometry, into Defendant’s biometric timeclock when clocking
in and out of work. (Doc. 85-4, pgs. 6, 8). In contrast, plaintiff Cully, like Plaintiffs in the
instant case, was required to scan his biometric identifiers, i.e., his fingerprints, into
Defendant’s biometric timeclock when clocking in and out of work. (Doc. 85-4, pg. 9).
Plaintiffs Bolds, Ragsdale, and Cully proposed the following class: “[a]ll individuals
whose biometric identifiers or biometric information was collected, captured, stored,
transmitted, disseminated, or otherwise used by or on behalf of Defendant within the
state of Illinois any time within the applicable limitations period.” (Doc. 85-4, pg. 11).
Crucially, on November 6, 2023, the plaintiffs in the state proceedings filed a
Motion for Leave to File a Second Consolidated Amended Complaint, stating as follows:
26.
Following further investigation, Plaintiffs seek leave to file the
Second Consolidated Amended Class Action Complaint in order to remove
Plaintiff Cully as a named plaintiff in this matter. Paycor’s Motion for
Summary Judgment contends that Plaintiff Cully lacks standing to pursue
claims against Defendant, and Plaintiffs do not intend to oppose that
assertion. As discussed in Paycor’s Motion, Plaintiffs Ragsdale and Bolds
were subject to different timekeeping technology than Plaintiff Cully,
whose employer…used Paycor’s “Perform Time” service [citations], and
Plaintiffs wish to limit the claims at issue in this case to Paycor’s technology
used by Plaintiffs Ragsdale and Bolds—which was not related to Paycor’s
“Perform Time” service. Thus, Plaintiffs also seek to limit the putative class
in this matter to only those individuals who – like Plaintiffs Ragsdale and
Bolds – had their biometrics used by Paycor through its “Time on Demand”
service. [Citation].
27.
Accordingly, removing Plaintiff Cully as a named plaintiff
will not only streamline the discovery authorized by the Court’s September
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13, 2023 Order, and permit Plaintiffs to focus their discovery efforts on the
arguments and assertions raised in Paycor’s Motion that Plaintiffs intend to
contest, but also streamline any further class discovery in this case.
28.
Further, Plaintiffs’ proposed amendment presents no risk of
prejudice or surprise to Paycor. Plaintiffs are not seeking to add any
additional claims or substantive allegations, and the allegations in the
Second Consolidated Amended Complaint concerning Plaintiffs Bolds and
Ragsdale that Paycor challenges in its Motion for Summary Judgment are
identical to their allegations in the operative Consolidated Amended
Complaint. Thus, Paycor will not need to refile its pending Motion. In fact,
removing Plaintiff Cully from this case provides Paycor with the exact relief
its Motion for Summary Judgment seeks.
29.
Finally, Plaintiffs’ proposed amendment is timely. Plaintiffs
seek leave to file their Second Consolidated Amended Complaint now,
many weeks in advance of the deadline to complete the discovery
authorized by the Court’s September 13, 2023 Order, in order to streamline
the discovery and permit the timely completion of such discovery. Indeed,
Plaintiffs’ proposed amendment seeks to limit, rather than expand, the
scope of that discovery.
30. Moreover, Plaintiffs’ proposed Consolidated Amended
Complaint would increase efficiency and preserve judicial resources going
forward by limiting the arguments and named plaintiffs the Court will need
to address in connection with Paycor’s Motion for Summary Judgment.
(Doc. 96, pgs. 6-8).
On November 15, 2023, the Circuit Court of Cook County denied the Motion for
Leave to File a Second Consolidated Amended Complaint. (Doc. 96, pg. 131). However,
the plaintiffs’ oral motion to dismiss plaintiff Cully was granted. (Doc. 96, pg. 131). He
was dismissed from the case with prejudice. (Doc. 96, pg. 131).
Based on the posture of each case, it is clear to the Court there is not a substantial
likelihood that the state proceedings will dispose of all the claims presented in this federal
case. See Freed, 756 F.3d at 1018. Notably, when arguing to the contrary, it appears
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Defendant views the issue through the wrong lens. It takes issue with Plaintiffs allegedly
attempting to avoid a stay by paring their claims to a single biometric timeclock despite
not pleading or seeking relief for such a limited class. (Doc. 98, pgs. 2-3). But the question
is not whether this case could dispose of the claims in the state proceedings. Just the
opposite. The Court assesses whether there is a substantial likelihood that the state
proceedings will resolve the claims in this federal case. See Freed, 756 F.3d at 1018.
Here, it is apparent that the plaintiffs, legal issues, and factual circumstances in the
state proceedings materially differ from those in this federal case. See id. at 1018-19; Huon,
657 F.3d at 646. Again, in this case, the First Amended Class Action Complaint alleges
Plaintiffs were required to scan only their fingerprints, not their hand geometry, with a
biometric timeclock to authenticate and track time worked. (Doc. 40, pg. 12). Plaintiffs
Bolds and Ragsdale, in their Consolidated Amended Class Action Complaint without
plaintiff Cully, who was similarly positioned to Plaintiffs, allege that, during their
employment, they were required to scan their hand geometry, not their fingerprints, with
a different biometric timeclock. (Doc. 85-4, pgs. 6, 8). In light of the differing allegations
between the two cases, as well as the reasoning quoted above for the dismissal of plaintiff
Cully in the Motion for Leave to File a Second Consolidated Amended Complaint, the
Court is persuaded by the argument that the state proceedings may not dispose of the
claims in this case because Plaintiffs were subjected to a different biometric timeclock that
is no longer directly at issue in the Circuit Court of Cook County. (Doc. 92, pgs. 1, 3-9).
In doing so, the Court stresses its understanding that the Motion for Leave to File
a Second Consolidated Amended Complaint was ultimately denied, even though the
13
plaintiffs were allowed to dismiss plaintiff Cully, and a class has not yet been certified in
either this or the state case. The Circuit Court of Cook County could narrow the proposed
class after discovery, consistent with the plaintiffs’ representations, without an amended
complaint. See 735 ILCS 5/2-802(a) (“As soon as practicable after the commencement of
an action brought as a class action, the court shall determine by order whether it may be
so maintained and describe those whom the court finds to be members of the class. This
order may be conditional and may be amended before a decision on the merits.”); Avery
v. State Farm Mut. Auto. Ins. Co., 216 Ill. 2d 100, 125-26 (2005) (“Decisions regarding class
certification are within the sound discretion of the trial court and should be overturned
only where the court clearly abused its discretion or applied impermissible legal
criteria.”); Mashal v. City of Chicago, 2012 IL 112341, ¶ 45 (“The authority to amend a
previous certification exists because it may be beneficial to the orderly administration of
justice to set aside an earlier determination of a suitable class action if clearly changed
circumstances or more complete discovery warrant it.”); Cohen v. Blockbuster Ent., 376 Ill.
App. 3d 588, 598 (2007) (“[T]he trial court has an independent obligation to ensure that a
class action is indeed appropriate…[and] a continuing obligation to take cognizance of a
change in factual circumstances and to modify class certification rulings when
necessary.”). Therefore, resolving all doubts in favor of exercising jurisdiction, the Court
cannot find this federal case is parallel to the state proceedings. See Freed, 756 F.3d at 1019.
Even if this case were parallel to the state proceedings, though, the factors relevant
to the Colorado River abstention analysis do not reveal exceptional circumstances
counseling in favor of the Court relinquishing its “ ‘virtually unflagging obligation’ to
14
exercise jurisdiction” in this case. See Huon, 657 F.3d at 645; TruServ Corp., 419 F.3d at 591;
Baek, 886 F.3d at 663; Freed, 756 F.3d at 1018-19. The federal forum is clearly convenient to
Defendant, as it chose to remove the case from the Circuit Court of Madison County. The
Court can also avoid piecemeal litigation because this federal case and the state
proceedings involve named plaintiffs who were subjected to different biometric
timeclocks, and the plaintiffs in the state proceedings have represented that they intend
to define their proposed class and limit discovery in a manner that excludes the Plaintiffs
in this federal case. For these same reasons, the Court cannot find the state proceedings
will adequately protect Plaintiffs’ rights, and it is of lesser consequence that the state
proceedings are more advanced. Further, while Bolds and Ragsdale were initiated in the
Circuit Court of Cook County prior to the removal of this case from the Circuit Court of
Madison County, it appears this Court first acquired jurisdiction over the claims
involving the Perform Time biometric timeclocks. And, as noted above, the claims of the
remaining named plaintiffs in the state proceedings no longer directly implicate that
biometric timeclock and they indicated an intent to limit discovery and their proposed
class. Also, even though BIPA is a state law, that factor is of lesser importance in light of
the finding that this federal case, over which the Court retains diversity jurisdiction, is
not parallel to the state proceedings. Finally, Plaintiffs’ claims are not contrived or
vexatious, and Defendant does not so argue. Therefore, upon weighing its obligation to
exercise jurisdiction against the factors implicated by the Colorado River doctrine, the
Court FINDS it could not abstain from an exercise of jurisdiction even if this case were
parallel to the state proceedings. See Baek, 886 F.3d at 663; Freed, 756 F.3d at 1018.
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III. CONCLUSION
As explained above, the Motion is DENIED and the stay is LIFTED. Within 21
days of this date, the parties are DIRECTED to meet, confer, and then file a Joint Status
Report on the appropriate next steps in this case. The Joint Status Report, at a minimum,
shall cover the state of discovery, a proposed scheduling and discovery order, and a
proposed briefing schedule for the previously filed Motion to Dismiss (Docs. 44 & 45)
and Motion for Class Certification under Rule 23 (Doc. 61).
SO ORDERED.
Dated: May 8, 2024.
s/ David W. Dugan
___________________________
DAVID W. DUGAN
United States District Judge
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