Duerr v. Bradley Univ.

• Docket Number: Case No. 1:21-cv-01096-SLD-JEH
• Decision Date: 10 March 2022
• Citation: 590 F.Supp.3d 1160
• Parties: Thomas DUERR and Gabriel Foley, individually and on behalf of all others similarly situated, Plaintiffs, v. BRADLEY UNIVERSITY, Defendant.
• Court: U.S. District Court — Central District of Illinois

590 F.Supp.3d 1160

Thomas DUERR and Gabriel Foley, individually and on behalf of all others similarly situated, Plaintiffs,

v.BRADLEY UNIVERSITY, Defendant.

Case No. 1:21-cv-01096-SLD-JEH

United States District Court, C.D. Illinois, Peoria Division.

Signed March 10, 2022

Brian K. Murphy, Jonathan Patrick Misny, Joseph Francis Murray, Brian Kevin Murphy, Murray Murphy Moul & Basil LLP, Columbus, OH, Anthony I. Paronich, Paronich Law P.C., Hingham, MA, Mary C. Turke, Samuel J. Strauss, Turke & Strauss LLP, Madison, WI, for Plaintiffs.

Michael D. Hayes, Scott J. Helfand, Husch Blackwell LLP, Chicago, IL, for Defendant.

ORDER

SARA DARROW, CHIEF UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Bradley University's motion to dismiss, ECF No. 8. Also before the Court are Plaintiffs Thomas Duerr and Gabriel Foley's motion for leave to file a sur-reply, ECF No. 15, Defendant's first motion for leave to cite additional authority, ECF No. 19, and Defendant's second motion for leave to cite additional authority, ECF No. 20. For the reasons below, Defendant's motion to dismiss is GRANTED, Plaintiffs’ motion to file a sur-reply is DENIED, and Defendant's motions for leave to cite additional authority are GRANTED.

BACKGROUND¹

Defendant is a private university in Peoria, Illinois. During the fall 2020 semester, Plaintiffs, currently undergraduates there, were enrolled in classes that incorporated remote, online exams. To take those exams, Plaintiffs were required to use Respondus Monitor, a third-party proctoring tool licensed by Defendant that is designed to detect misconduct, such as another person replacing a test-taker midway through an exam.

The "heart" of Respondus Monitor is a "powerful artificial intelligence engine" that "performs a second-by-second analysis of the exam session" using "facial detection, motion, and lighting to analyze the student and examination environment." Am. Class Action Compl. ¶ 33 (quotation marks omitted), ECF No. 5. "[D]ata then flows into the ‘Review Priority system,’ " id. ¶ 35 (quotation marks omitted), which "rank[s] proctoring results according to the risk that violations have occurred," id. ¶ 36 (quotation marks omitted). All the while, "Respondus Monitor captures ... student[s’] facial geometry and other biometric identifiers" from their webcams. Id. ¶ 79.

Plaintiffs bring this action on behalf of a proposed class to include "[a]ll persons who took an assessment using Respondus Monitor, as a student of Bradley University in Illinois, at any time during the five years prior to the filing of this Complaint through January 20, 2021." Id. ¶¶ 109–10. They allege Defendant committed multiple violations of the Illinois Biometric Information Privacy Act ("BIPA") by failing to maintain or comply with biometric information collection guidelines in violation of 740 ILCS 14/15(a) ("Section 15(a)"), id. ¶¶ 122–29; collecting students’ biometric information in violation of 740 ILCS 14/15(b) ("Section 15(b)"), id. ¶¶ 130–37; profiting from biometric information in violation of 740 ILCS 14/15(c) ("Section 15(c)"), id. ¶¶ 138–45; and disclosing biometric information in violation of 740 ILCS 14/15(d) ("Section 15(d)"), id. ¶¶ 146–52.

Defendant filed the instant motion to dismiss on April 21, 2021. Mot. Dismiss 1. On June 16, 2021, Defendant moved for leave to file a reply to Plaintiff's response, ECF No. 13, which the Court granted, June 17, 2021 Text Order. On July 20, 2021, Plaintiffs moved for leave to file a sur-reply. Mot. Leave Sur-Reply 1. On January 19, 2022, Defendant filed a motion to cite additional authority. First Mot. Leave Add'l Auth. 1. On February 28, 2022, Defendant filed a second motion for leave to cite additional authority. Second Mot. Leave Add'l Auth. 1.

DISCUSSION

I. Plaintiff's Motion for Leave to File a Sur-Reply

The Local Rules do not explicitly allow for sur-replies, but the Court "ha[s] the discretion to grant parties leave to file additional pleadings, to include sur-replies to a motion to dismiss." Carlson v. Ameren Corp. , No. 10-01230, 2011 WL 612725, at *2 (C.D. Ill. Feb. 15, 2011). "The decision to permit the filing of a sur[-]reply is purely discretionary and should generally be allowed only for valid reasons, such as ... new arguments in a reply brief." Meraz-Camacho v. United States , 417 F. App'x 558, 559 (7th Cir. 2011) ; see also Hanson Eng'rs Inc. v. UNECO, Inc. , 64 F. Supp. 2d 797, 798 (C.D. Ill. 1999) ("[L]eave should not be so freely granted that it would render the general prohibition of replies ineffective.").

Plaintiffs maintain a sur-reply is necessary to "address substantive arguments related to two cases that [Defendant] advanced for the first time in its Reply." Mot. Leave Sur-Reply 1. Having reviewed Plaintiffs’ proposed sur-reply, the Court notes that Plaintiffs’ argument regarding one of those two cases, Stauffer v. Innovative Heights Fairview Heights, LLC , 480 F. Supp. 3d 888 (S.D. Ill. 2020), does not respond to an argument introduced in Defendant's reply but rather advances a new argument that could have been previously raised. See Proposed Sur-Reply 2–3, ECF No. 15-1 (arguing that Defendant's interpretation of Stauffer to hold that BIPA exempts GLBA-regulated financial institutions is incorrect); Mem. Supp. Mot. Dismiss 3, ECF No. 9 (citing Stauffer for the principle that BIPA "does not apply to financial institutions already subject to GLBA" (quotation marks omitted)). The other argument, which challenges Defendant's interpretation of a state-court transcript attached to the response, see Proposed Sur-Reply 4, is unnecessary given that the Court is in possession of the transcript. See Cummins, Inc. v. TAS Distrib. Co. , 676 F. Supp. 2d 701, 705 (C.D. Ill. 2009) ("The Court is quite capable of determining the effect of these supposed misstatements of law on its own...."). Accordingly, the Court denies Plaintiffs’ motion for leave to file a sur-reply. See Daker v. State Farm Fire & Cas. Co. , Case No. 1:20-cv-01052, 2021 WL 2877171, at *3 (C.D. Ill. July 8, 2021) (denying a plaintiff's motion for leave to file a sur-reply where no new issues were raised in the reply).

II. Defendants’ Motions for Leave to Cite Additional Authority

The Court has the discretion to grant parties leave to cite additional authority when recent case law sheds light on an issue of relevance to the disposition of a motion. See, e.g., Clinton Hill v. Sood , No. 18-4133, 2020 WL 12697470, at *1 (C.D. Ill. Feb. 20, 2020). Defendant seeks leave to cite recent state and federal court orders pertaining to BIPA claims brought by student test-takers against university defendants. See First Mot. Leave Add'l Auth. 1; Second Mot. Leave Add'l Auth. 1. Accordingly, both motions are granted. See Clinton Hill , 2020 WL 12697470, at *1.²

The Court will consider the additional authority.

III. Standing

Neither party has challenged the Court's subject-matter jurisdiction, but "[w]hen a requirement goes to subject-matter jurisdiction, courts are obligated to consider sua sponte issues that the parties have disclaimed or have not presented," Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). A sua sponte inquiry into subject-matter jurisdiction is prudent in the BIPA context because "standing requirements in Illinois courts are more lenient than those imposed by Article III." Bryant v. Compass Grp. USA, Inc. , 958 F.3d 617, 622 (7th Cir. 2020) ; see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III."). Accordingly, before considering Defendant's motion to dismiss, the Court will begin by ensuring it has subject-matter jurisdiction over Plaintiffs’ claims by evaluating whether Plaintiffs have Article III standing as to each of them. See Cothron v. White Castle Sys., Inc. , 20 F.4th 1156, 1160 (7th Cir. 2021) ("[W]e begin with our independent duty to ensure that this case is properly in federal court." (quotation marks omitted)).

"At the pleading stage, [Article III] standing requires allegations of a concrete and particularized injury in fact that is traceable to the defendant's conduct and redressable by judicial relief." Id. "The injury-in-fact requirement is usually the main event in litigation over standing," Fox v. Dakkota Integrated Sys., LLC , 980 F.3d 1146, 1151 (7th Cir. 2020), so the Court will focus its analysis on whether Plaintiffs have satisfied that requirement.

Here, Plaintiffs bring claims under four separate sections of BIPA: Section 15(a), Section 15(b), Section 15(c), and Section 15(d). Am. Class Action. Compl. ¶¶ 122–52. The Seventh Circuit has held that violations of Section 15(b), which prohibits unauthorized data collection, and Section 15(d), which prohibits the dissemination of biometric information, inflict Article III injuries. See Cothron , 20 F.4th at 1161 ("[A] violation of section 15(d) inflicts a concrete and particularized Article III injury."); Bryant , 958 F.3d at 619 ("We conclude that a failure to follow [S]ection 15(b) ... leads to an invasion of personal rights that is both concrete and particularized."). Accordingly, the Court has subject-matter jurisdiction over Plaintiffs’ Section 15(b) and Section 15(d) claims.

Unlike Section 15(b) and Section 15(d), Section 15(a) and Section 15(c) "impose duties owed only to the public generally—the violation of which does not, without more, confer standing." Cothron , 20 F.4th at 1161 ; see also Thornley v. Clearview AI, Inc. , 984 F.3d 1241, 1248 (7th Cir. 2021) (concluding that the plaintiffs did not have Article III standing because the alleged injury was "only a general, regulatory violation [of Section 15(c)], not something that is particularized to them and concrete"). Thus, the Court must examine Plaintiffs’ Section 15(a) and Section 15(c) allegations in greater detail to determine whether the alleged injury is sufficient to confer ...