68347672v.1 

IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

TAMARA COLON, individually and on behalf 

of all others similarly situated, 

Plaintiff, 

v. 

DYNACAST, LLC, 

Defendant. 

Case No. 1:20-cv-03317 

District Judge Robert M. Dow, Jr. 

Magistrate Judge M. David Weisman 

DEFENDANT DYNACAST, LLC’S MOTION TO STAY PROCEEDINGS 

Defendant Dynacast, LLC respectfully requests this Court to stay proceedings to avoid 

unnecessary cost and undue prejudice given there are multiple pending appeals—including a pending 

case before the Illinois Supreme Court—that will directly impact the Court’s analysis of dispositive 

issues raised in Dynacast’s pending Rule 12(b)(6) motion to dismiss and that will otherwise bear upon 

the viability of Plaintiff Tamara Colon’s claims. In support of this motion, Dynacast states as follows: 

BACKGROUND 

1. Colon is a former employee of Dynacast who filed a purported class action against 

Dynacast seeking statutory damages under the Illinois Biometric Information Privacy Act (“BIPA”). 

As the Court is aware, Dynacast’s motion to dismiss asserts, among other things, that Colon’s claim 

for statutory damages are barred by the Exclusivity Provisions of the Illinois Workers’ Compensation 

Act. [Dkt. #30] The Illinois Supreme Court will decide that very issue in McDonald v. Symphony 

Bronzeville Park, LLC as it recently allowed a petition for leave to appeal in that case. (See Order 

Allowing Petition for Leave to Appeal, attached as Exhibit A). 

2. Indeed, like Colon, the plaintiff in McDonald v. Symphony is a former employee of the 

defendant who seeks statutory damages under BIPA. And like Dynacast, the defendant in McDonald 

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v. Symphony argues that plaintiff’s claim for statutory damages under BIPA are barred by the Exclusivity 

Provisions of the Workers’ Compensation Act. 

3. As the allowed petition in McDonald v. Symphony states, the First District’s ruling with 

respect to Workers’ Compensation exclusivity conflicts with the Illinois Supreme Court’s holding in 

Rosenbach v. Six Flags Entm’t. Corp., 2019 IL 123186 at ¶34, and also conflicts with the Second District’s 

holding that employee privacy injuries—like being spied upon in a workplace bathroom, Benitez v. KFC 

Nat. Mgmt. Co., 305 Ill. App. 3d 1027, 1029-31 (2d Dist. 1999), and having sensitive medical 

information disclosed, Goins v. Mercy Ctr. for Health Care Servs., 281 Ill. App. 3d 480, 487-88 (2d Dist. 

1996)—do fall within the Exclusivity Provisions of the Workers’ Compensation Act. (See Petition for 

Leave to Appeal, attached without exhibits as Exhibit B) Should the Illinois Supreme Court reverse 

the First Appellate Court’s decision in McDonald v. Symphony, then Colon’s claim for damages would 

be barred. See Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004). 

4. In addition, it is anticipated that several pending appeals will further impact the 

viability of Colon’s claims. As Dynacast established in its motion, Colon’s claims also would be barred 

under a one-year or two-year statute of limitations. The following appeals are currently pending and 

could potentially impact the timeliness analysis: [1] the First District Illinois Appellate Court is 

addressing the issue of whether a one-year or five-year statute of limitations applies to BIPA claims 

(see Tims v. Black Horse Carriers, Inc., 1st Dist. Case No. 1-28-0563, relevant order attached as Exhibit 

C); and [2] the Third District Illinois Appellate Court is addressing whether the applicable statute of 

limitations for BIPA claims is one, two, or five years (Marion v. Ring Container Technologies, LLC, No. 3-

20-0184, relevant order attached as Exhibit D). And while these decisions will not bind this Court, 

they will constitute decisional authority that the Court should consider. See Reiser, 380 F.3d at 1029; 

see also McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 663 (3d Cir. 1980). 

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5. Furthermore, on November 9, 2020, the Seventh Circuit granted a 28 U.S.C. §1292(b) 

petition for leave to appeal from a District Court Order that addresses several issues under BIPA, 

including potentially what comprises an “injury” under BIPA, which could impact the statute of 

limitation analysis. (In Re: White Castle System, Inc., No. 20-8029, relevant order attached as Exhibit E) 

See also Cothron v. White Castle Sys., Inc., 477 F. Supp. 3d 723, 731 (N.D. Ill. 2020). The Seventh Circuit 

further determined that a stay of the district court case was “warranted” while this interlocutory appeal 

is pending. (Ex. E) Of course, any ruling by the Seventh Circuit will bind this Court. See Reiser, 380 

F.3d at 1029. 

6. A stay of this case is appropriate to avoid undue burden and expense, and will not 

prejudice Colon since she is no longer employed by Dynacast and, to the extent he was ever harmed, 

he is not incurring additional harm. Denial of this motion, however, will prejudice Dynacast because 

it will incur significant attorneys’ fees and costs that may be rendered unnecessary by rulings on the 

pending interlocutory appeals. 

7. Moreover, the COVID-19 pandemic also impacts the stay analysis. A stay pending 

the outcome of potentially dispositive appellate review by the state courts would permit Dynacast to 

dedicate its resources and human capital to the operation of its business. 

8. A district court has inherent power to stay proceedings which is “incidental to the 

power inherent in every court to control the disposition of the causes on its docket with economy of 

time and effort for itself, for counsel, and for litigants.” See Landis v. North American Co., 299 U.S. 248, 

255 (1936). Staying proceedings may be appropriate where a litigant in another case may settle the 

rule of law that applies in the stayed lawsuit, id., which is the exact situation presented here. See, e.g., 

Morrison v. YTB Int'l, Inc., No. CIV 08-579-GPM, 2010 WL 1931127, at *1 (S.D. Ill. May 13, 2010) 

(citing authority). 

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9. Other district courts have granted motions to stay (or continued existing stays) 

pending rulings in the McDonald case and the in interlocutory appeals in Tims and Marion. See, e.g., 

Vaughan v. Biomat USA, Inc., 20-cv-4241, 2020 WL 6262359 (N.D. Ill. Oct. 23, 2020) (Aspen, J.); Bell 

v. SDH Services West, LLC, 20-cv-3181, ECF No. 22 (N.D. Ill. Aug. 27, 2020) (Ellis, J.); Treadwell v. 

Power Solutions Int’l, Inc., 18-cv-8212, ECF No. 120 (N.D. Ill. April 1, 2020) (Alonso, J.; later extended 

by agreement of the parties); Donets v. Vivid Seats, LLC, 20-cv-3551, ECF No. 37 (N.D. Ill. Dec. 15, 

2020) (Valderrama, J.). And so, too, have several state trial courts, including the trial court judge in 

McDonald v. Symphony. See McDonald v. Symphony Bronzeville Park, LLC, 2017 C 11311 (Cir. Ct. Cook 

Cty. Jan. 29, 2021); Ambrose v. LCS Community Employment LLC, 2019 CH 9912 (Cir. Ct. Cook Cty. 

Nov. 2, 2020); Sanchez v. Elite Labor, 2018 CH 02651 (Cir. Ct. Cook Cty. Oct. 14, 2020); Young v. Bria 

Health Services, LLC, 19 L 499 (Cir. Ct. St. Clair Cty. Oct. 29, 2020); Tims v. Black Horse Carriers, Inc., 

2019 CH 03522 (Cir. Ct. Cook Cty. Jan. 28, 2020 & Oct. 20, 2020); Townsend v. The Estates of Hyde Park, 

LLC, 2019 CH 11849 (Cir. Ct. Cook Cty. Oct. 20, 2020); Owens v. Wendy’s Int’l, LLC, 2018 CH 11423 

(Cir. Ct. Cook Cty. Oct. 7, 2020); Solomon v. Schmolz + Bickenbach USA, Inc., 2019 CH 13361 (Cir. Ct. 

Cook Cty. Oct. 7, 2020); Gory v. Glencrest Healthcare, 2019 CH 04326 (Cir. Ct. Cook Cty. Oct. 2, 2020); 

Measaw v. Heritage Operations Group, LLC, 2019 CH 08321 (Cir. Ct. Cook Cty. Oct 2, 2020); Cline v. 

Marion Rehabilitation Center, 2020 L 52 (Cir. Ct. Williamson Cty. Aug. 14, 2020); Young v. Tri City Foods, 

Inc., 2018 CH 13114 (Cir. Ct. Cook Cty. Oct. 7, 2020); Rondinella v. Palos Hills Healthcare, LLC, 2020 

CH 3357 (Cir. Ct. Cook Cty. July 17, 2020); Marion v. Ring Container Technologies, LLC, 2019 L 89 (Cir. 

Ct. Kankakee Cty. Apr. 20, 2020); Burton v. BWAY Corp., 2018 CH 09797 (Cir. Ct. Cook Cty. Feb. 10, 

2021); Moore v. Eclipse Advantage, LLC, 20 CH 5378 (Cir. Ct. Cook Cty. Feb. 5, 2021); Gordon v. PBC 

Linear, 20 L 305 (Cir. Ct. Winnebago Cty. Feb. 5, 2021); Littleton v. Lydia Healthcare I, LLC, 19 CH 

12142 (Cir. Ct. Cook Cty. Feb. 4, 2021); Trinidad v. Bridgeview Advisors, LLC, 20 CH 6600 (Cir. Ct. Cook 

Cty. Feb. 4, 2021); Wilson v. Park House Nursing & Rehab. Ctr., LLC, 19 CH 10262 (Cir. Ct. Cook Cty. 

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Feb. 2, 2021); Peaks-Smith v. St. Anthony Hosp., 18 CH 7077 (Cir. Ct. Cook Cty. Feb. 1, 2021). The 

above-referenced federal and state court stay orders are attached collectively hereto as Exhibit F. 

* * * 

WHEREFORE, for the above stated reasons, Defendant Dynacast, LLC respectfully requests 

that this Court grant this Motion to Stay Proceedings and whatever other relief the Court deems 

appropriate. 

DATED: February 24, 2021 Respectfully submitted, 

By: /s/ Joseph A. Donado___________ 

Richard P. McArdle (rmcardle@seyfarth.com) 

Joseph A. Donado (jdonado@seyfarth.com) 

SEYFARTH SHAW LLP 

233 South Wacker Drive; Suite 8000 

Chicago, Illinois 60606 

Telephone: (312) 460-5000 

Facsimile: (312) 460-7000 

Attorneys for Defendant Dynacast, LLC 

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68347672v.1 

CERTIFICATE OF SERVICE

I, Joseph Donado, an attorney, do hereby certify that I have caused a true and correct copy of 

the foregoing DEFENDANT DYNACAST, LLC’S MOTION TO STAY PROCEEDINGS to 

be served upon counsel of record via the Court’s electronic filing system on this 24th day of February 

2021. 

/s/ Joseph A. Donado______

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