IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EVELYN HUNTER individually and on behalf )

of all others similarly situated, )

)

Plaintiff, ) Case No. 20 C 3134

)

v. )

) Judge Robert W. Gettleman

AUTOMATED HEALTH SYSTEMS, INC., )

a Pennsylvania corporation, )

)

Defendant. )

ORDER

On March 1, 2019, Plaintiff Evelyn Hunter filed a putative class action complaint in the 

Circuit Court of Cook County, Illinois against Defendant Automated Health Systems, Inc. alleging 

violations of Illinois’ Biometric Information Privacy Act (“BIPA”). Defendant removed that 

action to this court in case number 19-cv-2529. On February 20, 2020, after reviewing the 

parties’ position papers, this court, following the lead of other courts within the district, remanded 

the case back to the state court for lack of Article III standing. Hunter v. Automated Health 

Systems, Inc., 2020 WL 833180 (N.D. Feb. 20, 2020). Subsequently, on May 5, 2020, in an 

unrelated case, the Seventh Circuit held that allegations of violations of section BIPA section 

15(b), but not section 15(a), supports Article III standing. Bryant v. Compass Group USA, Inc., 

958 F.3d 617, 626 (7thCir. 2020). Defendant then removed the case again, citing Bryant as an 

intervening event that justifies removal. Plaintiff has moved to remand the case back to the state

court. For the reasons described below, that motion is granted.

DISCUSSION

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This court originally remanded the case because it concluded that plaintiffs alleging a bare 

procedural violation of BIPA §15(b) lack standing. It is undisputed that Bryant held otherwise,

that such allegations support Article III standing. The question before the court is whether the 

Bryant decision is triggering event for a second removal. It is not.

The issue is governed by 28 U.S.C. § 1446(b)(3) which provides that:

Except as provided in subsection(c), if 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.

Defendant argues that the Bryant decision is an “other paper” from which it could first 

ascertain that the case is or has become removable. As the Seventh Circuit noted in Wisconsin v. 

Amgen, Inc., 516 F.3d 530, 533-34 (7th Cir. 2008), most courts have held that the language of the 

act “refers to ... pleadings, etc., filed in the suit sought to be removed, not in some other suit 

(‘amended’ is a clue).” Id. (and cases cited therein). As the Amgen court explained, “[t]o allow 

a filing in another suit to restart the 30–day time limit would have [the] effect of belatedness by 

allowing removal years after a suit had been proceeding in a state court, because of the filing of 

another suit in another court.” Id. at 534. 

There are exceptions, but only when the “other case” involved the same issue and the same

defendant. See e.g. Bourda v. Caliber Auto Transfer of St. Louis, Inc., 2009 WL 2356141 at *2 

(July 31, 2009) (citing Doe v. American Red Cross, 14 F.3d 196, 202-03 (3rd Cir. 1993)). Those 

exceptions do not apply here because Bryant did not involve the same defendant. Consequently, 

the court concludes that § 1446(b)(3) does not allow removal in the instant case. Plaintiff’s 

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motion to remand is granted. Due to the novelty of the issue the court exercises its discretion and 

denies plaintiff’s request for attorney’s fees.

CONCLUSION

For the reasons described above, plaintiff’s motion to remand [Doc. 13] is granted.

ENTER: August 17, 2020

__________________________________________

Robert W. Gettleman

United States District Judge

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