Roberson v. Maestro Consulting Servs. LLC, Case No. 20-CV-00895-NJR

• Decision Date: 14 December 2020
• Docket Number: Case No. 20-CV-00895-NJR
• Citation: 507 F.Supp.3d 998
• Parties: Saroya ROBERSON, et al., Individually, and on Behalf of All Others Similarly Situated, Plaintiffs, v. MAESTRO CONSULTING SERVICES LLC, Individually and d/b/a Symphony Post Acute Network, et al., Defendants.
• Court: U.S. District Court — Southern District of Illinois

507 F.Supp.3d 998

Saroya ROBERSON, et al., Individually, and on Behalf of All Others Similarly Situated, Plaintiffs,

v.MAESTRO CONSULTING SERVICES LLC, Individually and d/b/a Symphony Post Acute Network, et al., Defendants.

Case No. 20-CV-00895-NJR

United States District Court, S.D. Illinois.

Signed December 14, 2020

John J. Driscoll, Driscoll Firm, LLC, San Juan, PR, C. John Baricevic, Chatham & Baricevic, Belleville, IL, Ethan D. Hatch, Paul W. Johnson, Driscoll Firm, P.C., St. Louis, MO, for Plaintiffs Saroya Roberson, Olabisi Bodunde.

John J. Driscoll, Driscoll Firm, LLC, San Juan, PR, for Plaintiff Nicholle Headley.

Brian R. Kalb, Christopher W. Byron, Byron Carlson Petri & Kalb LLC, Edwardsville, IL, Joseph Aurelio Donado, Richard P. McArdle, Seyfarth Shaw LLP, Chicago, IL, for Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion to Remand filed by Plaintiffs Saroya Roberson, Christa Hammond, Tonika Smith, Daphne Williams, Idella Hill, Olabisi Bodunde, Victoria Brewer, Alyssa Bendersky, Felecia Williams, Attla Dupree, and Jameea Boykin ("Plaintiffs") (Doc. 23). Also pending is Defendants’ Motion to Dismiss (Doc. 18). For the reasons set forth below, Plaintiffs’ Motion to Remand is denied, and Defendants’ Motion to Dismiss is granted in part and denied in part.

FACTUAL & PROCEDURAL BACKGROUND

On December 8, 2017, Plaintiff Roberson filed a Class Action Complaint against Symphony Sycamore LLC, and several related entities, in the Circuit Court for the Twentieth Judicial Circuit of St. Clair County, Illinois. Plaintiffs were employed by Defendants, a network of various nursing homes (Doc. 10-2). To track Plaintiffs’ time and attendance, Defendants collected, and Plaintiffs scanned, fingerprints or handprints for time and attendance purposes (Doc. 10-2, at ¶ 113).

On July 2, 2020, Plaintiff Roberson was granted leave to amend her complaint, adding ten new plaintiffs and seventeen new defendants. Nine of the new plaintiffs were union members during their respective tenures. The new defendants are allegedly part of the network of various nursing homes employed by named Plaintiffs and class members. Plaintiffs allege Defendants violated the Illinois Biometric Information Privacy Act (BIPA), 740 ILL. COMP. STAT. § 14/1 et seq. Specifically, Plaintiffs allege Defendants violated sections 15(a), 15(b)(1), 15(b)(2), 15(b)(3), 15(d), 15(e)(1), and 15(e)(2) of BIPA (Doc. 10-2).

Under BIPA, a private entity must establish and make publicly available a protocol for retaining and handling biometric data. 740 ILCS 14/15(a). This data must be destroyed "when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within 3 years of the individual's last interaction with the private entity, whichever occurs first." Id. A "private entity" must first inform the subject or "the subject's legally authorized representative" in writing about the purpose of collecting the data, how long the data will be kept, and obtain consent of the subject or authorized representative. 740 ILCS 14/15(b). Sales, leases, trades, or further actions in which a private entity may profit from a person's biometric information are prohibited. 740 ILCS 14/15(c). Disclosures, redisclosures, or other dissemination of a person's biometric information are statutorily limited. 740 ILCS 14/15(d). Finally, private entities must protect biometric information from disclosure using "the reasonable standard of care within the private entity's industry .... [and] in a manner that is the same as or more protective than the manner in which the private entity stores, transmits, and protects other confidential and sensitive information." 740 ILCS 14/15(e).

On September 2, 2020, Defendants removed the case to this Court, asserting that the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332, and 1367 (Doc. 10). Specifically, Defendants assert that this Court has federal-question jurisdiction under 28 U.S.C. § 1331 because certain Plaintiffs’ claims are preempted by the Labor Management Relations Act ("LMRA") (Id. at p. 3). Defendants also allege that because Plaintiffs are alleging the same facts in support of all the separate counts and that Defendants share a "common liability" based on those facts, Plaintiffs’ claims for the alleged BIPA violations share a common nucleus, and this Court can properly exercise supplemental jurisdiction over Plaintiffs’ non-union claims (Id. at p. 10). Defendants further allege that this Court has original jurisdiction over this matter pursuant to the Class Action Fairness Act ("CAFA"). 28 U.S.C. § 1332(d).

On September 30, 2020, Plaintiffs moved to remand the case back to state court (Doc. 23). Defendants filed a memorandum in opposition to Plaintiffs’ Motion to Remand on October 30, 2020 (Doc. 48). Defendants also filed a timely Motion to Dismiss, arguing that the First Amended Complaint fails to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) (Doc. 18).

ANALYSIS

I. Plaintiffs’ Motion to Remand

A defendant may remove any case from state court that a plaintiff could have filed originally in federal court. 28 U.S.C. § 1441(a). The party seeking removal bears the burden of demonstrating federal jurisdiction, "and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur v. L.A. Weight Loss Ctrs., Inc. , 577 F.3d 752, 758 (7th Cir. 2009).

A plaintiff may challenge removal by moving to remand the case back to state court. Remanding to state court is appropriate for (1) lack of district court subject matter jurisdiction or (2) a defect in the removal process. 28 U.S.C. §§ 1446, 1447(c) ; GE Betz, Inc. v. Zee Co. , 718 F.3d 615, 625–26 (7th Cir. 2013).

A. Timeliness

Pursuant to 28 U.S.C. § 1446, a notice of removal of a civil action must be filed within thirty days after the defendant's receipt, through service or otherwise, of a copy of the initial pleading. Section (b)(3) further provides:

[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b)(3). The time limits in Section 1446 are mandatory, and the failure to comply with those limits bars removal. N. Ill. Gas Co. v. Airco Indus. Gases, a Div. of Airco, Inc. , 676 F.2d 270, 273 (7th Cir. 1982).

Plaintiffs contend that the thirty-day removal clock began to run on July 2, 2020, when Defendants’ counsel was in possession of a formally approved amended pleading. The thirty-day removal clock does not begin to run, however, until a defendant is formally served with the complaint. See Dultra v. U.S. Med. Home, Inc. , 2014 WL 1347107, at *3 (N.D. Ill. Apr. 4, 2014) ("[f]ormal service is required to trigger the 30–day clock, as the Supreme Court held 15 years ago in Murphy Brothers v. Michetti Pipe Stringing , 526 U.S. 344, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) )"; Dent v. Renaissance Mktg. Corp. , 2014 WL 5465006, at *6 (N.D. Ill. Oct. 28, 2014) (same).

Here, the thirty-day clock began when Defendants were formally served with the First Amended Complaint on August 3, 2020. The Notice of Removal was filed on September 2, 2020, just within the thirty-day period. Accordingly, Defendants’ Notice of Removal was timely.

B. Standing

Article III of the Constitution limits the judicial power of federal courts to adjudicating "cases" and "controversies." Hein v. Freedom From Religion Foundation, Inc. , 551 U.S. 587, 597, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007). "One of the controlling elements in the definition of a case or controversy under Article III is standing." Id. (internal quotations, citations, and alterations omitted). "[T]he irreducible constitutional minimum of standing consists of three elements." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). A plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the defendant's challenged conduct, and (3) is redressable by the Court. Id.

"[T]he Supreme Court made [it] ‘crystal clear’ in Spokeo , ‘Article III standing requires a concrete injury even in the context of a statutory violation.’ " Fox v. Dakkota Integrated Sys., LLC , 980 F.3d 1146, 1152 (7th Cir. 2020) (quoting Spokeo , 136 S. Ct. at 1549 ). A statutory violation, with an intangible harm, satisfies the injury-in-fact requirement, when it presents "an ‘appreciable risk of harm’ to the underlying concrete interest [the legislature] sought to protect by enacting the statute." Bryant v. Compass Grp. USA, Inc. , 958 F.3d 617, 621 (7th Cir. 2020) (quoting Groshek v. Time Warner Cable, Inc. , 865 F.3d 884, 887 (7th Cir. 2017) ); see also Fox , 980 F.3d at 1152 ("[t]o determine whether an intangible harm satisfies the injury-in-fact requirement in a statutory case, both the legislature's judgment and historical judicial practice ‘play important roles’ ").

i. Article III Standing for Plaintiffs’ Section 15(a) Claims

Plaintiffs assert that their section 15(a) claims must be remanded for lack of Article III standing. Four recent BIPA cases hold the keys to this question. See Fox , 980 F.3d at 1152 (noting "[t]hree recent BIPA cases hold the keys to the standing question"). In the first case, Miller v. Sw. Airlines Co. , 926 F.3d 898 (7th Cir. 2019), the Court concluded that the union employees’ sections 15(a) and 15(b) claims were concrete injuries sufficient to confer Article III standing because the collection and use of biometrics for employee timekeeping is a subject of collective bargaining. Id. at 902. In the second case, Patel v. Facebook, Inc. , 932 F.3d 1264 (9th Cir. 2019), the Ninth Circuit recognized that the Illinois ...