Fleury v. Union Pac. R.R. Co.

• Decision Date: 24 March 2021
• Docket Number: Case No. 20-cv-00390
• Parties: David FLEURY, individually and on behalf of a class of similarly situated individuals, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.
• Court: U.S. District Court — Northern District of Illinois

528 F.Supp.3d 885

David FLEURY, individually and on behalf of a class of similarly situated individuals, Plaintiff,

v.UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant.

Case No. 20-cv-00390

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

Signed March 24, 2021

Brendan James Duffner, David Louis Gerbie, Steven Russell Beckham, McGuire Law, P.C., Chicago, IL, for Plaintiff.

Amy Yongmee Cho, Jonathon M. Studer, Melissa Anne Siebert, Shook, Hardy & Bacon LLP, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

JORGE ALONSO, United States District Judge

Defendant Union Pacific Railroad Company ("Union Pacific") moves to dismiss Plaintiff David Fleury's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Court denies the motion [35].

BACKGROUND

Fleury filed a putative class action against Union Pacific, alleging that Union Pacific violated the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 et seq. ("BIPA"). Unless otherwise noted, the Court takes the following facts from Fleury's First Amended Complaint, which are accepted as true for purposes of deciding the instant motion. Lavalais v. Vill. of Melrose Park , 734 F.3d 629, 632 (7th Cir. 2013).

Union Pacific operates a network of railroads in North America that includes facilities located in Illinois. For a certain period of time, including throughout 2019, Fleury worked as a truck driver, and as part of his job, he visited rail yards in Illinois owned and operated by Union Pacific. Union Pacific required Fleury to scan his "biometric identifiers and/or biometric information" into certain "identity verification kiosks" when Fleury visited Union Pacific's facilities. Through these kiosks, Union Pacific collected, captured, and stored biometric identifiers and biometric information from Fleury and others that visited Union Pacific facilities. Union Pacific collected and stored the biometric information via these kiosks without informing Fleury or others in writing that it was doing so, and Union Pacific failed to get written consent from Fleury or others before collecting and storing their biometric information. Union Pacific further failed to provide Fleury or others with written disclosures describing the specific purpose and length of time for which their biometric information was being collected and stored. Finally, Union Pacific also transmitted the biometric information it collected from Fleury and others to unknown third parties without consent. Fleury acknowledges that, after he filed his lawsuit, Union Pacific added a "disclosure and consent" virtual form to its kiosks that Fleury and others use. Fleury acknowledged and signed off on the disclosure and consent form in June 2020.

BIPA imposes certain restrictions on how entities like Union Pacific collect, retain, use, disclose, and destroy "biometric identifiers" and "biometric information." See 740 ILCS 14/1 et seq. BIPA mandates that before obtaining an individual's biometric identifiers or information, a private entity must inform the individual in writing about several things, including that biometric information is being collected, the specific purpose of collecting or using the biometric information, and the length of time for which the biometric information will be collected, stored, and used. 740 ILCS 14/15(b). The entity must also obtain a signed "written release" from an individual before collecting the individual's biometric information. See id. Further, BIPA also requires a private entity to obtain consent before disclosing or disseminating an individual's biometric information to a third party. 740 ILCS 14/15(d). Finally, a private entity in possession of biometric information must make publicly available a "retention schedule and guidelines" it uses for permanently destroying biometric identifiers and information it has collected after a certain time period. 740 ILCS 14/15(a).

Fleury claims that, although he does not know whether Union Pacific's recent efforts to add notice and consent forms now bring it into compliance with BIPA, Union Pacific's past conduct has nevertheless violated BIPA in multiple ways. Union Pacific now moves to dismiss Fleury's First Amended Complaint, arguing that Fleury's BIPA claim is preempted by both the Federal Railroad Safety Act and the Interstate Commerce Commission Termination Act and that Fleury fails to state a claim because he consented to the collection of his biometric information.

LEGAL STANDARD

"A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief may be granted." Richards v. Mitcheff , 696 F.3d 635, 637 (7th Cir. 2012). To survive a motion to dismiss for failure to state a claim, a plaintiff's complaint must contain "a short and plain statement of the claim[s] showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Under federal notice-pleading standards, a plaintiff's 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) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "In reviewing the sufficiency of a complaint under the plausibility standard, [courts must] accept the well-pleaded facts in the complaint as true, but [they] need not accept as true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.’ " Alam v. Miller Brewing Co. , 709 F.3d 662, 665–66 (7th Cir. 2013). Further, because affirmative defenses generally do not justify dismissal under Rule 12(b)(6), a plaintiff need not try to anticipate and plead around an affirmative defense, Doe v. GTE Corp. , 347 F.3d 655, 657 (7th Cir. 2003), but a plaintiff can plead himself out of court if the pleadings admit all the facts that establish an affirmative defense. Walker v. Thompson , 288 F.3d 1005, 1009 (7th Cir. 2002).

DISCUSSION

Union Pacific offers three bases to dismiss Fleury's First Amended Complaint. Union Pacific argues two separate federal statutes preempt Fleury's BIPA claim. Union Pacific also argues Fleury fails to state a BIPA claim because he consented to Union Pacific's collection and use of his biometric information. The Court addresses Union Pacific's preemption arguments and then turns to its consent argument.

I. Preemption

The Supremacy Clause of the United States Constitution states the Constitution and federal laws are "the supreme Law of the Land ... Laws of any State to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2. In other words, federal law "preempts state laws that interfere with, or are contrary to, federal law." Union Pac. R. Co. v. Chicago Transit Auth. , 647 F.3d 675, 678 (7th Cir. 2011) (quoting Boomer v. AT&T Corp. , 309 F.3d 404, 417 (7th Cir. 2002) ). "In the interest of avoiding unintended encroachment on the authority of the States, however, a court interpreting a federal statute pertaining to a subject traditionally governed by state law will be reluctant to find pre-emption. Thus, pre-emption will not lie unless it is the clear and manifest purpose of Congress." CSX Transp., Inc. v. Easterwood , 507 U.S. 658, 663, 113 S. Ct. 1732, 1737, 123 L.Ed.2d 387 (1993) (quotations omitted). To determine Congress’ intent regarding the preemptive scope of a statute, a court looks to the text and structure of the statute at issue. Id. "If the statute contains an express pre-emption clause, the task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent." Id.

Union Pacific argues Fleury's BIPA claim is preempted by either the Federal Railroad Safety Act ("FRSA") or the Interstate Commerce Commission Termination Act ("ICCTA"). The Court addresses each statute in turn. At the outset, the Court notes Union Pacific raises preemption here as an affirmative defense, and as such, Union Pacific bears the burden of proof. Benson v. Fannie May Confections Brands, Inc. , 944 F.3d 639, 645 (7th Cir. 2019). Dismissal based on an affirmative defense is appropriate only when the pleadings and matters properly subject to judicial notice make clear that a plaintiff's claim is barred as a matter of law. Parungao v. Cmty. Health Sys., Inc. , 858 F.3d 452, 457 (7th Cir. 2017) ; Xechem, Inc. v. Bristol-Myers Squibb Co. , 372 F.3d 899, 901 (7th Cir. 2004) ("Only when the plaintiff pleads itself out of court—that is, admits all the ingredients of an impenetrable defense—may a complaint that otherwise states a claim be dismissed under Rule 12(b)(6).").

A. FRSA

Congress enacted the FRSA to "promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101 ; Easterwood , 507 U.S. at 661, 113 S.Ct. 1732. To achieve that aim, the FRSA grants the Secretary of Transportation and Secretary of Homeland Security the power to issue regulations and orders relating to railroad safety and railroad security. 49 U.S.C. § 20103(a) ; Burlington N. & Santa Fe Ry. Co. v. Doyle , 186 F.3d 790, 794 (7th Cir. 1999). In an effort to make all "laws, regulations, and orders" relating to railroad safety and security "nationally uniform to the extent practicable," the FRSA contains an express preemption clause, which states in relevant part:

A State may adopt or continue in force a law, regulation, or order related to railroad safety or security until the Secretary of Transportation (with respect to railroad safety matters), or the Secretary of Homeland Security (with respect to railroad

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