Stauffer v. Innovative Heights Fairview Heights, LLC

• Decision Date: 19 August 2020
• Docket Number: Case No. 3:20-CV-00046-MAB
• Parties: Madisyn STAUFFER, on behalf of herself an all others similarly situated, Plaintiff, v. INNOVATIVE HEIGHTS FAIRVIEW HEIGHTS, LLC, and Pathfinder Software, LLC d/b/a Pathfinder Software, LLC, Defendants.
• Court: U.S. District Court — Southern District of Illinois

480 F.Supp.3d 888

Madisyn STAUFFER, on behalf of herself an all others similarly situated, Plaintiff,

v.INNOVATIVE HEIGHTS FAIRVIEW HEIGHTS, LLC, and Pathfinder Software, LLC d/b/a Pathfinder Software, LLC, Defendants.

Case No. 3:20-CV-00046-MAB

United States District Court, S.D. Illinois.

Signed August 19, 2020

Kevin P. Green, Goldenberg Heller & Antognoli, P.C., Edwardsville, IL, Richard S. Cornfeld, Daniel Scott Levy, Law Office of Richard S. Cornfeld, St. Louis, MO, for Plaintiff.

Glenn E. Davis, Charles Noah Insler, HeplerBroom LLC, St. Louis, MO, for Defendant Innovative Heights Fairview Heights, LLC.

Glenn E. Davis, Charles Noah Insler, HeplerBroom LLC, St. Louis, MO, Josh M. Kantrow, Thomas M. Wolf, Lewis Brisbois Bisgaard & Smith LLP, Chicago, IL, Kendall J. Mossman, Lewis Brisbois Bisgaard & Smith LLP, Edwardsville, IL, for Defendant Pathfinder Software LLC.

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

Presently before the Court is Plaintiff Madisyn Stauffer's Motion to Remand (Doc. 27) and Defendant Pathfinder Software, LLC's Motion to Dismiss (Doc. 21). For the reasons set forth below, Plaintiff's Motion to Remand is GRANTED in part and DENIED in part . Defendant Pathfinder's Motion to Dismiss is DENIED .

FACTUAL AND PROCEDURAL BACKGROUND

In her Amended Complaint (Doc. 1-1, pp. 89-109), Plaintiff alleges, on behalf of herself and a class of similarly situated individuals, that both Defendants Innovative Heights, Fairview Heights, LLC ("Innovative Heights") and Pathfinder Software, LLC, d/b/a/ CenterEdge Software, LLC ("Pathfinder") collected her biometric information, specifically her fingerprints, in violation of The Illinois Biometric Information Privacy Act, 740 ILCS 14/1, et seq. ("BIPA") (Doc. 1-1, p. 91).

I. The Illinois Biometric Information Privacy Act

Illinois passed BIPA in 2008 to address concerns about the growing collection and use of biometrics by private entities (Id. at 96). The Illinois General Assembly found that while the use of biometrics has been growing, "[b]iometrics are unlike other unique identifiers that are used to access finances or other sensitive information" in that unlike social security numbers or other identifiers that can be changed when compromised, biometrics are "biologically unique to the individual; therefore, once compromised, the individual has no recourse ..." (Id. at 96-97). See 740 ILCS 14/5(a) - (c). Under BIPA, a biometric identifier includes an individual's fingerprints (Doc. 1-1, p. 97). As the ramifications of this emerging area of technology are unknown, the Illinois General Assembly enacted BIPA to regulate the collection, use, handling, storage, retention, and destruction of these identifiers and biometric information. Id. See 740 ILCS 14/5(f) - (g).

To regulate the use of these biometric identifiers, BIPA provides that a private entity in possession of biometric information "must develop a written policy, made available to the public, establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or within three years of the individual's last interaction with the private entity, whichever occurs first" (Doc. 1-1, p. 97). See 740 ILCS 14/15(a) ("Section 15(a)"). BIPA also outlines that a private entity may not "collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or information" unless it first informs that person, in writing, that such an identifier or information is being collected or stored and informs that person, in writing, of the purpose and length for which a biometric identifier or information is being used, collected, and stored (Doc. 1-1, p. 97). See 740 ILCS 14/15(b)(1) Additionally, BIPA provides that a private entity must receive a written release executed by the person who is the subject of the biometric identifier or information. Id. See 740 ILCS 14/15(b)(1)-(3) ("Section 15(b)"). Written release is defined as "informed written consent or, in the context of employment, a release executed by an employee as a condition of employment." 740 ILCS 14/10.

II. Plaintiff's Complaint and Procedural Background

On April 29, 2019, Plaintiff filed her Complaint in the Twentieth Judicial Circuit, St. Clair County, Illinois (Doc. 1-1, p. 2). She brings this action individually and on behalf of a class of similarly situated individuals who were employed by Defendant Innovative Heights and worked at its "Sky Zone" facility in Fairview Heights, Illinois for alleged violations of BIPA (Id. at 15, 96).

Originally, Plaintiff brought this action solely against her employer, Defendant Innovative Heights (Doc. 1, p. 1). Sky Zone is a recreational facility with indoor trampolines that offers a variety of different activities, including, but not limited to, Ultimate Dodgeball, SkyHoops, SkyJoust, and Laser Tag (Doc. 1-1, p. 4). As part of their employment, employees are required to give their fingerprints to Defendant Innovative Heights at the beginning of their employment and then scan their fingerprints for timekeeping¹ and other employment purposes (Id. ). Plaintiff alleges that she was never informed by Defendant Innovative Heights, in writing, of the purpose and the period for which her fingerprints were being collected, stored, or used (Id. at 98-99).

While still in state court, Plaintiff sought leave to amend her complaint on November 19, 2019 after learning of Defendant Pathfinder's relationship with her employer through the first stages of discovery (Id. at 85, 93-94). Plaintiff alleges that Defendant Pathfinder controls and operates the system and database in which Defendant Innovative Heights’ employees’ fingerprints were stored (Id. at 94). Like Defendant Innovative Heights, Plaintiff alleges that Defendant Pathfinder never informed her, in writing, of the specific purpose of and the period for which her fingerprints were being collected, stored, or used (Id. at 98-99). Plaintiff received leave on November 25, 2019 to amend her complaint (Doc. 1, p. 2). Plaintiff filed her amended complaint on November 27, 2019 in which she named Defendant Pathfinder, for the first time, as a co-defendant along with Defendant Innovative Heights (Id. ). In adding Defendant Pathfinder, Plaintiff also alleges two separate classes of individuals—those that were employed by Defendant Innovative Heights and worked at its SkyZone facility in Fairview Heights, Illinois and those individuals who had their fingerprints collected, captured, purchased, received through trade, or otherwise obtained by Defendant Pathfinder (Doc. 1-1, p. 91).

Plaintiff alleges that both Defendants Innovative Heights and Pathfinder have violated Sections 15(a) and 15(b) of BIPA while scanning and storing her and other class members’ fingerprints for timekeeping and other purposes (Doc. 1, p. 2). More specifically, Plaintiff contends that Defendant Innovative Heights collected, captured, obtained, and possessed Plaintiff's fingerprints, but did not make available to the public a written policy establishing a retention schedule and guidelines for permanently destroying its employees’ fingerprints when the initial purpose for collecting such fingerprints had been satisfied, which means that when Plaintiff or other employees leave employment with Defendant Innovative Heights, they are unaware if and when their biometric identifiers would be destroyed (Doc. 1-1, p. 99). According to Plaintiff, if Defendant Innovative Heights were to be sold or go out of business, Plaintiff and the putative class members would be left unaware as to who is in possession of their private biometric identifiers, which Plaintiff argues is a violation of Section 15(a) of BIPA. Id. Plaintiff alleges Defendant Innovative Heights violated Section 15(b) of BIPA because it failed to notify Plaintiff and the putative class, in writing, that their fingerprints were being collected, stored, and used before collecting this biometric information. Additionally, Plaintiff notes Defendant Innovative Heights failed to obtain a written release from herself and the other putative class members before collecting their fingerprints (Id. at 99-100).

Defendant Pathfinder also violated Sections 15(a) of BIPA, according to Plaintiff, by not making available, to the public, a written policy establishing a retention schedule and guidelines for permanently destroying the biometric information once the initial purpose for collecting had been satisfied (Id. at 100). Plaintiff alleges Defendant Pathfinder violated Section 15(b) of BIPA by not first informing the class members, in writing, of the purpose for which their fingerprints were being collected, stored, and used, and for how long these fingerprints were being collected, stored, and used. Finally, Plaintiff contends Defendant Pathfinder did not obtain a written release from Plaintiff or the class members before collecting, capturing, or receiving their fingerprints (Id. at 100-101).

After filing her amended complaint, Defendant Pathfinder removed this case on January 10, 2020 to the Southern District of Illinois pursuant to the Class Action Fairness Act ("CAFA"), which grants United States District Courts original jurisdiction over any civil action in which, to summarize, the matter in controversy exceeds $5,000,000 and the class of plaintiffs has any member that is a citizen of another state different from any defendant (Doc. 1). See 28 U.S.C. § 1332(d)(2).

Soon after removal, Defendant Pathfinder filed a motion to dismiss on February 5, 2020 (Doc. 21). Plaintiff then filed a motion to remand this matter to state court on March 12, 2020 (Doc. 27). Both pending motions, and the responses and replies, are currently before the Court.

PLAINTIFF'S MOTION TO REMAND

In her motion to remand, Plaintiff does not argue this case lacks the elements necessary to satisfy removal under CAFA ...