Marsh v. CSL Plasma Inc.

503 F.Supp.3d 677

Jada MARSH and Charles Hilson, individually and on behalf of all others similarly situated, Plaintiffs,

v.CSL PLASMA INC., Defendant.

No. 19 C 6700

United States District Court, N.D. Illinois, Eastern Division.

Signed November 30, 2020

Brandon Michael Wise, Peiffer Wolf Carr & Kane, APLC, Saint Louis, MO, David J. Fish, Mara Ann Baltabols, John C. Kunze, The Fish Law Firm, P.C., Naperville, IL, for Plaintiffs.

Gerald L. Maatman, Jr., Thomas E. Ahlering, Alexandra Sofia Oxyer, Seyfarth Shaw LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Edmond E. Chang, United States District Judge

Jada Marsh and Charles Hilson have filed this proposed class action against a plasma-donation company, CSL Plasma Inc. The Plaintiffs allege that CSL violated the Illinois Biometric Information Privacy Act (often referred to as "BIPA"). 740 ILCS 14/1, et seq. R. 18-1, Compl.¹ The Act prohibits private entities from collecting any "biometric identifier"—including fingerprints—from a person unless that person has consented in writing and the private entity has provided certain disclosures. 740 ILCS 14/15(b). Under Section 15(a) of the Act, collectors of biometric identifiers must develop, publicly disclose, and follow a data retention and destruction policy for the biometric information. 740 ILCS 14/15(a). The Plaintiffs allege that CSL violated the Act by using a donor-identification system that relied on the collection, storage, and use of donors’ fingerprints and biometric information without proper written consent and without making required disclosures. The suit was initially filed in state court, and CSL invoked the Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1453, to remove the case to federal court. CSL moved to dismiss for failure to adequately state a claim for relief. Fed. R. Civ. P. 12(b)(6). For their part, the Plaintiffs ask this Court to remand the Section 15(a) claims to state court for lack of subject matter jurisdiction. R. 18, Mot. Remand; R. 32, Pls.’ Position Paper. For the reasons set forth below, the motion to remand is denied and the motion to dismiss is denied in large part.

I. Background

For purposes of evaluating the dismissal motion, the Court must accept as true the allegations in the Complaint. Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). CSL Plasma is a plasma-donation business with locations in Chicago, Hazel Crest, and Melrose Park, Illinois. Compl. at ¶¶ 3–4. For purposes of diversity jurisdiction, CSL is a citizen of Delaware and Florida. R. 1 ¶ 10. Jada Marsh and Charles Hilson, both Illinois citizens, donated plasma at the Hazel Crest location some time during the year before the filing of the September 2019 complaint. Compl. ¶¶ 1-2, 22.

Each time that the Plaintiffs donated plasma, CSL required them to scan their fingerprints. Id. ¶ 26. These scans were used to create a biometric template for the Plaintiffs in CSL's database as a way to track their donations and authenticate their identities. Id. ¶ 5, 23-25. Despite collecting this biometric information, CSL never obtained consent or a written release from the Plaintiffs for the collection, capture, storage, or use of their biometric data. Id. ¶ 29. The Plaintiffs assert that they did not know or fully understand that CSL was collecting, capturing, or storing their biometric information. Id. ¶ 57. And CSL never told the Plaintiffs why their biometric information was being collected or how long it would be stored or used, id. ¶ 27, nor did CSL explain its biometric data retention policy or inform the Plaintiffs whether it would ever permanently delete their biometric data. Id. ¶ 28. In fact, the Plaintiffs do not believe that CSL even has a biometric data retention policy. Id. ¶ 59. As a result of CSL's biometric data practices (or lack of them), the Plaintiffs allege that they were continuously and repeatedly exposed to "risks and harmful conditions." Id. ¶ 30.²

Initially, the Plaintiffs filed this proposed class action in state court. Compl. at 1. The Plaintiffs seek damages, along with various forms of injunctive relief. Id. ¶¶ 92–95. CSL removed the lawsuit to federal court, invoking the Class Action Fairness Act, 28 U.S.C. §§ 1332(d) and 1453. R. 1. The Plaintiffs countered by moving to remand back to state court, arguing that their claims were insufficient to establish Article III standing because they had alleged nothing more than procedural violations of BIPA. R. 18 at 2-3. But after the Seventh Circuit issued Bryant v. Compass Group USA, Inc. , 958 F.3d 617 (7th Cir. 2020), the Court ordered supplemental briefing, and the Plaintiffs amended their position. The Plaintiffs concede that Article III standing does apply to the lack-of-consent claims under Section 15(b) of the Act, but the Plaintiffs continue to insist that there is no standing for the retention-policy claims under Section 15(a). R. 32, Pls.’ Position Paper, at 1. For its part, CSL has moved to dismiss the claims on a variety of grounds. R. 36.

II. Legal Standards

Removal of a case to federal court is generally governed by 28 U.S.C. § 1441. Generally speaking, so long as a case could have been filed in federal court, the case may be removed. 28 U.S.C. § 1441(a) ; Caterpillar Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) ; Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass'n , 707 F.3d 883, 890 (7th Cir. 2013). "The party seeking removal has the burden of establishing federal jurisdiction." Schur v. L.A. Weight Loss Ctrs. , 577 F.3d 752, 758 (7th Cir. 2009). Failure to meet this burden results in the remand of the removed case. 28 U.S.C. § 1447(c) ; Doe v. Allied-Signal, Inc. , 985 F.2d 908, 911 (7th Cir. 1993). When determining whether a defendant has met this burden, the Seventh Circuit has cautioned that "[c]ourts should interpret the removal statute narrowly," id. , and resolve doubts about removal in favor of the Plaintiffs’ choice of forum in state court, Morris v. Nuzzo , 718 F.3d 660, 668 (7th Cir. 2013).

As for the complaint itself, under Federal Rule of Civil Procedure 8(a)(2) a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (cleaned up).³ The Seventh Circuit has explained that this rule "reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities that might keep plaintiffs out of court." Brooks v. Ross , 578 F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) ).

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7 , 570 F.3d 811, 820 (7th Cir. 2009). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (cleaned up). These allegations "must be enough to raise the right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. The allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937.

III. Analysis

A. Jurisdiction

As the party invoking federal jurisdiction, CSL bears the burden of establishing that federal jurisdiction applied at the time of removal. Collier v. SP Plus Corp. , 889 F.3d 894, 896 (7th Cir. 2018) (citing Lujan v. Def. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ) ("The party invoking federal jurisdiction bears the burden of establishing" Article III standing). The Plaintiffs have Article III standing to sue if they "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Id. at 1548 (citing Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). A "bare procedural violation, divorced from any concrete harm" does not satisfy the injury-in-fact requirement of Article III. Id. at 1549 ; see also Collier , 889 F.3d at 896 (plaintiff must have "suffered an injury beyond a statutory violation"). "Instead, the plaintiff must show that the statutory violation presented an ‘appreciable risk of harm’ to the underlying concrete interest that [the legislature] sought to protect by enacting the statute." Groshek v. Time Warner Cable, Inc. , 865 F.3d 884, 887 (7th Cir. 2017) (quoting Meyers v. Nicolet Rest. of De Pere, LLC , 843 F.3d 724, 727 (7th Cir. 2016) ).

Here, the heart of the jurisdictional dispute is over the nature and concreteness of injuries for the alleged violations of the Illinois Biometric Information Privacy Act. The Act was the Illinois General Assembly's response to the expanding use of biometrics "in the business and security screening sectors" as Chicago and other parts of Illinois became "pilot testing sites for new applications of biometric-facilitated financial transactions." 740 ILCS 14/5(a), (b). The legislative findings acknowledged that the "full ramifications of biometric technology are not fully known," but nonetheless noted that the immutability of biometric information means that once such information is...