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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

DAVID FLEURY, individually and on 

behalf of a class of similarly situated 

individuals,

Plaintiff, 

v.

UNION PACIFIC RAILROAD 

COMPANY, a Delaware Corporation,

Defendant. 

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No. 20-cv-00390

Hon. Jorge L. Alonso

PLAINTIFF’S MOTION TO REMAND

Plaintiff David Fleury (“Plaintiff”), individually and on behalf of all similarly situated 

individuals, pursuant to 28 U.S.C. § 1447(c), hereby respectfully moves for entry of an Order 

severing and remanding his claim brought pursuant to 740 ILCS 14/15(a) to the Circuit Court of 

Cook County, Illinois where it was originally filed.

I. INTRODUCTION

This case is a putative class action brought under the Illinois Biometric Information Privacy 

Act, 740 ILCS 14/15 et seq. (“BIPA”). Plaintiff and the putative class members are truck drivers 

who were required to submit their biometric identifiers and/or biometric information to gain access 

to Defendant’s railyards in Illinois, and Plaintiff’s First Amended Complaint (“Complaint”) asserts 

that Defendant violated BIPA in numerous ways through its handling of his biometrics. Plaintiff’s 

claims include those brought under BIPA Section 15(a), which requires private entities in 

possession of biometrics to make a public policy available which outlines retention and destruction 

guidelines for such information. Section 15(a) also requires companies to abide by such a policy, 

but Plaintiff’s Complaint does not allege that Defendant failed to comply with a retention and 

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destruction policy. Under established Seventh Circuit precedent, Plaintiff lacks the Article III 

standing to pursue his Section 15(a) BIPA claim in this Court, and thus asks that this Court sever 

and remand his Section 15(a) BIPA claim to the Circuit Court of Cook County, where it was 

originally filed.

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On May 5, 2020, the Seventh Circuit Court of Appeals issued its decision in Bryant v. 

Compass Group USA, Inc., 958 F.3d 617 (7th Cir. 2020). Bryant addressed the question of which 

types of BIPA claims were sufficient to confer standing under Article III of the Constitution. 

Bryant held that the obligations created by 740 ILCS 14/15(a) of BIPA – namely the requirement 

that private entities in possession of biometrics establish a publicly-available biometric retention 

and destruction schedule – are owed to the public generally rather than a specific individual. Thus, 

the Court reasoned, such obligations were not part of BIPA’s “informed consent” regime. The

Seventh Circuit found that the plaintiff in Bryant did not suffer a concrete and particularized injury 

from the alleged Section 15(a) violation, and, as a result, lacked Article III standing to pursue that 

claim in federal court. On June 30, 2020, the Seventh Circuit modified its decision, but maintained 

its holding that a mere failure to publish a retention schedule, by itself, does not confer Article III 

standing. Bryant, 958 F.3d at 626 (as modified).

In this case, Plaintiff has alleged the same procedural violation of the first provision of 

Section 15(a) as the plaintiff in Bryant. (Dkt. 29, ¶ 21). Thus, Seventh Circuit precedent dictates 

that Plaintiff lacks Article III standing to pursue such claim in federal court. Accordingly, because 

Defendant removed this case from the Circuit Court of Cook County, Illinois, Plaintiff’s Section 

15(a) claim must be severed and remanded to that court as a matter of law.

1 Plaintiff’s claim under 740 ILCS 14/15(a) is asserted in his operative First Amended Class Action 

Complaint. (Dkt. 29, ¶ 21).

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II. PROCEDURAL HISTORY

Plaintiff filed this case in the Circuit Court of Cook County, Illinois on December 11, 2019.

On January 17, 2020, Defendant removed this action to this Court on diversity jurisdiction grounds 

and pursuant to the Class Action Fairness Act, 28 U.S.C. §§ 1332(a) and (d). (Dkt. 1). On June 16, 

2020, Plaintiff filed the operative First Amended Complaint, asserting multiple BIPA claims 

against Defendant. (Dkt. 29). Specifically, Plaintiff has alleged that Defendant violated three

separate subsections of BIPA: (1) Section 15(b), which requires private entities collecting 

biometric data to make certain disclosures and obtain the subject’s informed written consent to 

collection; (2) Section 15(d), which requires private entities to obtain the consent of individuals 

prior to disclosing, redisclosing, or otherwise disseminating their biometric information or 

biometric identifiers; and (3) Section 15(a), which requires, among other things, that private 

entities in possession of biometric information make publicly available a biometric data retention 

and destruction policy. (Dkt. 29, ¶¶ 19-22).

On July 21, 2020, Defendant moved to dismiss Plaintiff’s First Amended Complaint, and 

such motion was fully briefed. (Dkts. 35, 43, 46). On March 24, 2021, the Court issued a 

Memorandum Opinion and Order denying Defendant’s Motion to Dismiss Plaintiff’s First 

Amended Complaint. (Dkt. 47). On June 23, 2021, the Court stayed this case pending appellate 

rulings concerning the question as to the governing statute of limitations for BIPA claims under 

Illinois law. (See Dkt. 63). Nonetheless, the instant Motion is solely jurisdictional in nature and is

not related in any way to the merits of the case or to any discovery issues. Accordingly, Plaintiff 

submits that the Court can and should rule on this Motion despite the stay.

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III. LEGAL STANDARD

If, in a removed case, a district court finds that it lacks subject matter jurisdiction at any 

time, the only remedy is remand to state court. Smith v. Wis. Dep’t of Agric., Trade & Consumer 

Prot., 23 F.3d 1134, 1142 (7th Cir. 1994); see 28 U.S.C. § 1447(c). Article III standing is a 

threshold element of federal subject matter jurisdiction. Collier v. SP Plus Corp., 889 F.3d 894, 

896 (7th Cir. 2018). Thus, if at any time Article III standing is lacking over a removed claim, the 

appropriate disposition is to remand that claim to the originating state court. See 28 U.S.C. § 

1447(c); Collier, 889 F.3d at 897; Bergquist v. Mann Bracken, LLP, 592 F.3d 816, 819 (7th Cir. 

2010).

IV. UNDER BRYANT, THIS COURT LACKS SUBJECT MATTER JURISDICTION 

OVER PLAINTIFF’S SECTION 15(a) CLAIM.

Plaintiff alleges that Defendant violated Section 15(a) by failing to make publicly available 

a biometric retention and destruction schedule prior to storing his biometric information. (Dkt. 29,

¶ 21). In Bryant, the plaintiff’s allegations were exactly the same: that the defendant violated 

Section 15(a) by “possessing the Plaintiff’s and the Class’s fingerprints and information based on 

their fingerprints without creating a written policy, made available to the public, establishing a 

retention schedule and destruction guidelines for its possession of biometric identifiers and 

information.” Bryant v. Compass Group, Inc., No. 19-cv-06622, Dkt. 1-1 (N.D. Ill.), attached 

hereto as Exhibit A, ¶ 52. The Seventh Circuit determined the alleged violation of only Section 

15(a)’s first provision was insufficient to confer Article III standing:

Bryant alleged only a claim under the provision of [Section 15(a)] requiring 

development of a “written policy, made available to the public, establishing a 

retention schedule and guidelines for permanently destroying biometric identifiers 

and biometric information,’’ not under the provision requiring compliance with 

the established retention schedule and destruction guidelines . . . This provision 

is not part of the informed-consent regime, and Bryant alleges no particularized 

harm that resulted from Compass’s violation of section 15(a) . . . We conclude that 

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Bryant did not suffer a concrete and particularized injury as a result of Compass’s 

violation of section 15(a).

Bryant, 958 F.3d at 626 (7th Cir. 2020) (emphasis added). Accordingly, under Bryant, Plaintiff’s

allegations here do not confer Article III standing with respect to his Section 15(a) claim because, 

as in Bryant, Plaintiff has not alleged that Defendant has failed to comply with any established 

retention schedule or destruction guidelines—nor has he alleged any particularized harm that 

resulted from Defendant’s violation of 15(a). Instead, Plaintiff has merely alleged that Defendant 

failed to develop such a policy.

The Seventh Circuit addressed Article III in relation to Section 15(a) again in Fox v. 

Dakkota Integrated Systems, LLC, 980 F.3d 1146 (7th Cir. 2020). In Fox, the plaintiff did “not 

allege a mere procedural failure to publicly disclose a data-retention policy. Rather, [the plaintiff] 

allege[d] a concrete and particularized invasion of her privacy interest in her biometric data 

stemming from [the defendant’s] violation of the full panoply of its section 15(a) duties—the 

duties to develop, publicly disclose, and comply with data retention and destruction policies—

resulting in the wrongful retention of her biometric data after her employment ended, beyond the 

time authorized by law.” Fox, 980 F.3d at 1149 (emphasis in original). The Seventh Circuit 

considered this alleged “unlawful retention” of Fox’s biometric data to be a concrete and 

particularized “privacy injury” similar to an unlawful collection of biometrics under 740 ILCS 

14/15(b). In Fox, the Seventh Circuit reaffirmed its holding in Bryant that “a mere failure to 

publicly disclose a data-retention policy” is insufficient to confer Article III standing. See id. at 

1154. Here, like the plaintiff in Bryant, and unlike the plaintiff in Fox, Plaintiff’s 15(a) claim is 

based solely on the allegation that Defendant failed to develop a publicly available data-retention 

policy. (Dkt. 29, ¶ 21). Plaintiff does not allege that Defendant has unlawfully retained his 

biometrics beyond the time authorized by law. (See id.) 

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Courts in this Circuit have consistently held that Section 15(a) allegations that do not allege 

unlawful retention beyond the proscribed period are insufficient to confer Article III standing. See, 

e.g., Colon v. Dynacast, LLC, No. 20-cv-3317, 2021 WL 492870, at *5 (N.D. Ill. Feb. 10, 2021) 

(“[T]he Court reads the complaint as alleging a section 15(a) claim based only on Defendant's 

failure to publish its data policy—not Defendant's failure to comply with any data policy. As 

explained in Bryant, the Court lacks jurisdiction over this claim”) (emphasis in original); Marquez 

v. Google LLC, No. 20-cv-4454, 2020 WL 6287408, at *2 (N.D. Ill. Oct. 27, 2020) (remanding 

Section 15(a) claim under Bryant where the plaintiff alleged the defendant failed to “provide a 

publicly available written policy regarding its schedule and guidance for the retention and 

permanent destruction of individuals’ biometrics”); Cottingham v. Ultimate Software Group, Inc. 

No. 20-cv-01172, Dkt. 26 (C.D. Ill. May 25, 2021)2(granting remand of Section 15(a) claim and 

stating that, when assessing standing, “what the Court cannot do is haphazardly lump all of the 

subsections of BIPA violations together to find standing exists for the entire case. Based on Bryant, 

Fox, and Thornley, the Court must consider the violations alleged under each subsection to 

determine whether that portion of the case should be remanded”); Burlinski v. Top Golf USA Inc., 

No. 19-cv-06700, 2020 WL 5253150, at *4 (N.D. Ill. Sept. 3, 2020); Stauffer v. Innovative Heights 

Fairview Heights, LLC, No. 20-cv-00046, 2020 WL 4815960, at *7 (S.D. Ill. Aug. 19, 2020);

Rogers v. BNSF Railway Company, No. 19-cv-03083, (N.D. Ill., Aug. 25, 2021) at 6:24-7:33

(factually similar BIPA case involving a railroad operator’s collection of truck drivers’ biometrics 

with Judge Kennelly finding no Article III standing for a Section 15(a) claim where the plaintiff 

2 The Cottingham Memorandum Opinion and Order is attached hereto as Exhibit B.

3 Relevant excerpts of Judge Kennelly’s oral ruling on the plaintiff’s motion to remand in Rogers v. BNSF 

Railway Company are attached hereto as Exhibit C.

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alleged only the defendant’s failure to make a biometric retention and destruction policy publicly

available).

Because Plaintiff’s Section 15(a) claim seeks relief under only the first provision of 

Section 15(a), he lacks the Article III standing required by Bryant to pursue that claim in federal 

court. Thus, because a federal court has subject matter jurisdiction over a claim only if a plaintiff

has Article III standing to bring it, this Court lacks jurisdiction over Plaintiff’s Section 15(a) claim.

See MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 935 F.3d 573, 581 (7th Cir. 

2019).

V. THIS COURT’S LACK OF SUBJECT MATTER JURISDICTION REQUIRES 

REMAND OF PLAINTIFF’S SECTION 15(a) CLAIM TO THE CIRCUIT COURT 

OF COOK COUNTY, ILLINOIS.

Plaintiff’s lack of Article III standing for his Section 15(a) claim requires that such claim

be severed from his other claims and remanded to the Circuit Court of Cook County, Illinois – the 

court from which this case was removed – because where a district court lacks subject matter 

jurisdiction over a removed claim, the only authorized result is remand to the originating state 

court. 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court 

lacks subject matter jurisdiction, the case shall be remanded”) (emphasis added); Collier, 889 F.3d 

at 897 (7th Cir. 2018) (“[Section] 1447(c) required the district court to remand this case to state 

court, because it does not satisfy Article III’s requirements”); Bergquist, 592 F.3d at 819 (where 

some parts of a removed case are within federal jurisdiction and others are not, partial remand is 

appropriate). 

Accordingly, this Court may safely follow the numerous district courts in this Circuit that

have severed and remanded BIPA claims for lack of subject matter jurisdiction. See, e.g., Hazlitt 

v. Apple Inc., No. 20-cv-421, 2021 WL 2414669, at *7 (S.D. Ill. June 14, 2021) (severing and

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remanding Section 15(c) claim to state court); Colon, 2021 WL 492870, at *5 (severing and 

remanding Section 15(a) claim to the Circuit Court of Cook County, Illinois); Burlinski, 2020 WL 

5253150, at *4 (“[B]ecause there is no Article III jurisdiction over the Section 15(a) claims, it 

makes sense to sever and remand those claims back to state court, as the Plaintiffs have 

requested”); Stauffer, 2020 WL 4815960, at *8 (“Plaintiff does not have Article III standing for 

her Section 15(a) claims . . . [those claims] are remanded to the Twentieth Judicial Circuit, St. 

Clair County, Illinois”); Kloss v. Acuant, Inc., No. 19-cv-6353, 2020 WL 2571901, at *2 (N.D. Ill. 

May 21, 2020) (“Applying the Bryant Court’s holding, we conclude that we lack subject-matter 

jurisdiction over [plaintiff’s] Section 15(a) claims . . . . The Court accordingly severs and remands 

[plaintiff’s] claims under Section 15(a) back to state court for lack of subject-matter jurisdiction”); 

Rogers, Exh. B at 8:6-10 (N.D. Ill. Aug. 25, 2021) (“Herein Plaintiff’s claim under Section 15(a) 

of the Illinois Biometric Information Privacy Act is severed and remanded to the Circuit Court of 

Cook County.”)

Notably, Plaintiff’s lack of standing to bring his Section 15(a) claim in this Court does not

preclude Plaintiff from proceeding with that claim in the Circuit Court of Cook County, Illinois, 

where this case was initially filed. Indeed, the Illinois Supreme Court has held that Illinois courts 

are “not required to follow federal law on issues of standing, and ha[ve] expressly rejected federal 

principles of standing.” Lebron v. Gottlieb Mem’l Hosp., 930 N.E.2d 895, 917 n.4 (Ill. 2010); 

Greer v. Ill Hous. Dev. Auth., 524 N.E.2d 561, 574 (“[T]o the extent that the State law of standing 

varies from Federal law, it tends to vary in the direction of greater liberality”).

Accordingly, this Court should sever and remand Plaintiff’s Section 15(a) claim to the 

Circuit Court of Cook County, Illinois—the court from which this case was removed, and which 

has the jurisdiction to adjudicate the Section 15(a) claim. 

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VI. CONCLUSION

For the foregoing reasons, Plaintiff David Fleury respectfully requests that the Court enter 

an Order: (i) severing and remanding Plaintiff’s claim under 740 ILCS 14/15(a) to the Circuit 

Court of Cook County, Illinois; and (ii) for such other and further relief the Court deems reasonable 

and just.

Dated: September 17, 2021 Respectfully submitted,

DAVID FLEURY, 

individually and on behalf of similarly 

situated individuals

By: /s/ David L. Gerbie

One of Plaintiff’s Attorneys

Evan M. Meyers

David L. Gerbie

Brendan Duffner

MCGUIRE LAW, P.C. 

55 W. Wacker Drive, 9th Fl.

Chicago, IL 60601

Tel: (312) 893-7002

emeyers@mcgpc.com

dgerbie@mcgpc.com

bduffner@mcgpc.com

Counsel for Plaintiff and the Putative Class

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CERTIFICATE OF SERVICE

I hereby certify that, on September 17, 2021, I caused the foregoing Plaintiff’s Motion to 

Remand to be electronically filed with the Clerk of the Court using the CM/ECF system. A copy 

of said document will be electronically transmitted to all counsel of record. 

/s/ David L. Gerbie

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