Pecho v. Maui Jim, Inc.

• Decision Date: 29 September 2022
• Docket Number: 21-cv-06202
• Parties: CHRISTOPHER PECHO, individually and on behalf of similarly situated individuals, Plaintiffs, v. MAUI JIM, INC., an Illinois Corporation; and MAUI JIM USA, INC., an Illinois Corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

CHRISTOPHER PECHO, individually and on behalf of similarly situated individuals, Plaintiffs,
v.
MAUI JIM, INC., an Illinois Corporation; and MAUI JIM USA, INC., an Illinois Corporation, Defendants.

No. 21-cv-06202

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

September 29, 2022

MEMORANDUM ORDER

Rebecca R. Pallmeyer, United States District Judge

Christopher Pecho (“Plaintiff”), on behalf of a putative class of plaintiffs, filed suit in state court against two Illinois companies, Maui Jim, Inc. and Maui Jim USA, Inc. (collectively, “Maui Jim” or “Defendants”) and one Delaware corporation, Fittingbox, Inc. (“Fittingbox”), for alleged violations of the Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. (“BIPA”). Plaintiff alleges that Defendants unlawfully collected his facial geometry when he used Fittingbox's Virtual Try-On software to superimpose eyewear on his face on Maui Jim's website. Fittingbox removed the case to federal court pursuant to the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d).

Following removal, Plaintiff moved to remand [20]. Plaintiff contends that CAFA's mandatory “local controversy” exception applies because more than two-thirds of the proposed class are likely citizens of Illinois. See 28 U.S.C. § 1332(d)(4). In the alternative, Plaintiff asks for leave to conduct jurisdictional discovery to assess the applicability of CAFA's local controversy exception. Defendants oppose remand, arguing that nothing filed after removal should affect the court's jurisdictional analysis. After the parties briefed this issue, Plaintiff filed a Second Amended Complaint, dropping his claims against Fittingbox. Fittingbox and Maui Jim also have moved the court to dismiss Plaintiff's complaint for failure to state a claim [28, 29]. Since submission of the

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briefs on these motions, Defendants have submitted additional authority in support of their argument for dismissal [55].

The court concludes it cannot resolve the jurisdictional question without evidence on whether CAFA's local controversy exception applies to Plaintiff's Section 15(b) claim, and therefore orders discovery on that issue and strikes Plaintiff's motion to remand [20] without prejudice. As the jurisdictional question must be resolved before the merits, the court strikes without prejudice Maui Jim's motions to dismiss [28]. Fittingbox is no longer a party to this suit, and the court terminates its motion [29] as moot.

BACKGROUND

At this stage of the proceedings, the court accepts the allegations in Plaintiff's complaint as true. Maui Jim is an Illinois company that sells luxury sunglasses and apparel.^[1] See Pl.'s Second Amendment Complaint (“SAC”) [38], ¶¶ 2, 16, 23.) In September 2021, Plaintiff, a resident of Cook County, visited Maui Jim's website. (Id. ¶¶ 26-27.) Plaintiff used Maui Jim's “Virtual Try-On” software-which scans shoppers' facial geometry-to digitally superimpose various pairs of sunglasses on his face. (Id. ¶¶ 24, 28.)

Plaintiff alleges that Maui Jim's use of the Virtual Try-On software violates provisions of BIPA, which regulates companies that collect and store Illinois citizens' biometric data. (Id. ¶ 4.)

Plaintiff pursues this litigation as a class action under 735 ILCS 5/2-801. (See id. ¶ 37.) He asserts that, by operating its website, Maui Jim “captured, collected, received through trade, or otherwise obtained, and store thousands of templates of facial geometry-highly detailed geometric maps of the face-from thousands of Illinois individuals.” (Id. ¶ 10.) He seeks to represent a class of “[a]ll individuals whose biometrics were captured, collected, received through trade, or otherwise obtained, and/or disseminated through the use of Maui Jim's ‘Virtual Try-On' software within the state of Illinois any time within the applicable limitations period.” (Id.)

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PROCEDURAL HISTORY

When Plaintiff initially filed this case in state court, he named Fittingbox-a Delaware corporation that licensed the Virtual Try-On software to Maui Jim-as a Defendant. Fittingbox removed the case to this court pursuant to CAFA. 28 U.S.C. § 1332(d). That provision authorizes removal so long as there is “minimal diversity of citizenship” between the parties and the amount in controversy exceeds $5,000,000. Id. The parties agree that these requirements were satisfied at the time of removal.

After the case was removed, Plaintiff moved to remand under an exception to CAFA that obligates the court to decline to exercise jurisdiction over local controversies. (See Pl.'s Mot. To Remand [20].) In the alternative, Plaintiff moved to sever and remand claims for which he argues he lacks federal standing, and, for the remaining claims, to permit jurisdictional discovery in order to assess the applicability of CAFA's local controversy exception. (Id. at 14.) Fittingbox opposed Plaintiff's motion, arguing that the local controversy exception does not apply, that Plaintiff does have standing to pursue these claims in federal court, and that jurisdictional discovery would be futile. See Fittingbox Inc.'s Response to Pl.'s Mot. to Remand [34] (hereinafter “Def.'s Resp.”). Maui Jim adopted Fittingbox's response. [35.]

Soon after Fittingbox and Maui Jim filed these motions, Plaintiff amended his complaint, removing Fittingbox as a Defendant. (See SAC ¶¶ 16-17 (omitting Fittingbox from list of parties).) With only the Maui Jim Defendants, both Illinois citizens, remaining, Plaintiff argues that CAFA's location controversy exception squarely applies,...