THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID FLEURY, individually and on )

behalf of those similarly situated., )

) No. 20 C 390

Plaintiff, )

) Judge Jorge L. Alonso

v. )

)

UNION PACIFIC RAILROAD COMPANY, )

a Delaware corporation, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff David Fleury filed this putative class action against Defendant Union Pacific, 

alleging that Defendant violated the Illinois Biometric Information Privacy Act, 740 ILCS 14/1 

et seq. (“BIPA”). The Court previously lifted the stay of discovery in this case. Presently before 

the Court is Defendant’s renewed motion to stay. Having now had the benefit of full briefing on 

the issue and for the reasons set forth below, the Court grants in part and denies in part the 

motion to stay [50]. Because of this ruling, the Court denies Plaintiff’s motion to compel [61].

BACKGROUND

Defendant operates a network of railroads in North America that includes facilities

located in Illinois. Defendant is a Delaware Corporation with its principal place of business in 

Nebraska. [1 at ¶8]. Plaintiff worked as a truck driver and visited rail yards in Illinois owned and 

operated by Defendant. Plaintiff is a citizen of the state of Illinois, who is suing under the Class

Action Fairness Act, 28 U.S.C. §1322(d) et seq., for an amount more than $5,000,000.00 [29 at ¶ 

14]. Plaintiff alleges that Defendant required him to scan his “biometric identifiers and/or 

biometric information” into certain “identity verification kiosks” when Plaintiff visited 
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Defendant’s facilities. Plaintiff alleges that Defendant collected and stored this biometric 

information without informing him or others in writing that it was doing so in violation of the 

BIPA.

At a status hearing on April 9, 2021, the Court questioned Defendant’s counsel as to the 

basis for its contemplated motion to stay (identified by the parties in a joint status report).

Counsel provided an off-the-cuff argument as to why discovery should be stayed. Over 

objection, the Court lifted the stay on discovery. Defendant has now filed a renewed, written

motion to stay. 

LEGAL STANDARD

Courts “have inherent power to stay proceedings and ‘to control the disposition of the 

causes on its docket with economy of time and effort for itself, for counsel, and for litigants.’” 

Stone v. I.N.S., 514 U.S. 386, 411 (1995) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254

(1936)). Orders staying proceedings must both be “[]moderate” and within “reasonable limits.” 

Landis, 299 U.S. at 257. In evaluating a motion to stay, courts consider whether the stay will: (1) 

“simplify the issues in question and streamline the trial,” (2) “reduce the burden of litigation on 

the parties and on the court[,]” and (3) “unduly prejudice or tactically disadvantage the nonmoving party[.]” Genzyme Corp. v. Cobrek Pharm., Inc., No. 10-cv-00112, 2011 WL 686807, at 

*1 (N.D. Ill. Feb. 17, 2011); Tap Pharm. Prods., Inc. v. Atrix Labs., Inc., No. 03-cv-7822, 2004 

WL 422697, at *1 (N.D. Ill. Mar. 3, 2004). “The proponent of a stay bears the burden of 

establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997).

DISCUSSION

Defendant argues that this case should be stayed pending the outcome in three pending 

appeals that will have significant impact on this litigation: (1) Tims v. Black Horse Carriers, Inc., 
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No. 1-28-0563 (Ill. App. Ct., 1st Dist.); (2) Marion v. Ring Container Technologies, LLC, No. 3-

20-0184 (Ill. App. Ct., 3rd Dist.); and (3) Cothron v. White Castle Sys., Inc., Case No. 20-3202

(7th Cir.). Plaintiff opposes the motion to stay. In Tims and Marion, two separate Illinois 

Appellate Court panels (in the First and Third Districts) are set to decide whether a one-year, 

two-year, or five-year statute of limitations applies to BIPA claims. See Tims v. Black Horse 

Carriers, Inc., No. 1-20-0562; Marion v. Ring Container Techs., LLC, No. 3-20-0184; see also 

Herron v. Gold Standard Banking, Inc., No. 20-cv-07469, 2021 WL 1340804, at *2 (N.D. Ill. 

April 9, 2021). Relatedly, in White Castle, the Seventh Circuit is set to decide when a BIPA 

claim accrues, and more specifically whether a private entity violates the BIPA only when it first 

collects or discloses an individual’s biometric data without making the required disclosures, or 

whether a violation occurs each time the entity collects or discloses the data. See Cothron v. 

White Castle Sys., Inc., No. 19-cv-00382, Dkt. 141 (N.D. Ill. Oct. 1, 2020). For the sake of 

streamlining the analysis, the Court considers the simplicity and burden factors together, and 

then finally the undue prejudice factor. 

I. Simplifying-the-Issues and Reducing-the-Burden 

To stay this case, Defendants must first show that a stay will simplify the issues in 

dispute and reduce the burden of litigation on the parties. Genzyme Corp., 2011 WL 686807, at 

*1. Defendant argues that each appeal could significantly impact the instant case, or, at a 

minimum, narrow the issues for discovery, summary judgment, and/or trial. This argument has 

merit. If the Seventh Circuit decides in White Castle that a BIPA claim accrues on first use, and 

if the Illinois Appellate Courts decide in Tims and Marion that BIPA is subject to a one-year 

statute of limitations, then Plaintiff’s claim may be time barred, although discovery will certainly 

still be needed on that issue. If, however, those claims are not decided in Defendant’s favor, or in 
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a manner otherwise beneficial to it in this case, then those defenses fall by the wayside. Equally 

important, these decisions will have a significant impact on class certification issues—most 

obviously on the size of the prospective class. 

Plaintiff counters by pointing out that even if these decisions come down in Defendant’s 

favor, this case will not be over because (1) the Illinois Supreme Court has the final say and 

decisions of lower courts indicate that the Supreme Court would find that a five-year statute of 

limitations applies and (2) Plaintiff would still be entitled to discovery to oppose any motion for 

summary judgment. First, Plaintiff’s argument that lower court decisions signal how the Illinois

Supreme Court would rule is unpersuasive. Although Plaintiff correctly notes that most lower 

courts have found that the statute of limitations for BIPA claims is five years, the appellate 

courts may disagree. See Herron, No. 20-cv-07469, 2021 WL 1340804, at *4. And those 

appellate court decisions would likely be controlling here since this Court is sitting in diversity 

and applying Illinois law here. See Nationwide Agribusiness Ins. Co. v. Dugan, 810 F.3d 446, 

450 (7th Cir. 2015) (“Where the Illinois Supreme Court has not ruled on an issue, decisions of 

the Illinois Appellate Courts control, unless there are persuasive indications that the Illinois 

Supreme Court would decide the issue differently”). The Court is not convinced that lower court 

rulings provide any indication that the Illinois Supreme Court would conclude that a five-year 

statute of limitations applies to BIPA claims. Indeed, the court in Donet v. Vivid Seats LLC

addressed an analogous argument, but still found that a stay was warranted. See Donets, No. 20-

cv-3551, Dkt. 37, at p.3 (N.D. Ill. December 15, 2020) (“Donets opposes the stay, arguing that 

‘there is no reason to suspect that the Appellate Court in Tims or Marion would depart from what 

seems to be an elementary application of an unambiguous statute to the undisputed facts of a 

case’ and hold that BIPA claims are subject to a five (5)-year limitations period”). Moreover, 
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Plaintiff’s opinion that it is unlikely all three cases will come down in Defendant’s favor is of no 

consequence. At best, assuming the appellate courts disagreed with those lower court decisions, 

that would indicate that this issue is contested and in need of clarification. 

Second, the fact that Plaintiff would still be entitled to some discovery even if these 

appeals were decided in Defendant’s favor is not a reason to deny the motion to stay. Rather, the 

question the Court is tasked with answering is whether the stay will facilitate the simplification 

of the issues in question and reduce the burdens of litigation on the parties. Here, the Court 

answers these questions in the affirmative. The finding that a stay is appropriate here is

supported by decisions from several other courts in this district that have considered similar 

motions. See Johns v. Paycor, Inc., No. 20-cv-00264, Dkt. 65 (N.D. Ill. May 11, 2021) (staying 

case pending appeals in Tims, Marion, and White Castle); Herron v. Gold Standard Baking, Inc., 

No. 20-cv-07469, 2021 WL 1340804, at *5 (N.D. Ill. Apr. 9, 2021) (same); Roberson v. Maestro 

Consulting Servs. LLC, No. 20-cv-00895-NJR, 2021 WL 1017127, at *2 (S.D. Ill. Mar. 17, 

2021) (same); Kyles v. Hoosier Papa LLC, No. 20-cv-07146, Dkt. 22 (N.D. Ill. Mar 4, 2021)

(same); Wilson v. Am. Stair Corp. Inc., No. 20-cv-07321, Dkt. 10 (N.D. Ill. Feb. 22, 2021)

(staying case pending Tims); Varnado v. West Liberty Foods, No. 20-cv-2035, 2021 WL 545628, 

at *1-2 (N.D. Ill. Jan 5, 2021) (staying case pending Tims); Donets v. Vivid Seats LLC, No. 20-

cv-03551, Dkt. 37 (N.D. Ill. Dec. 15, 2020) (staying case pending appeals in Tims, Marion, and 

White Castle); Jenkins v. Regal Cinemas, Inc., No. 20-cv-03782, Dkt. 32 (N.D. Ill. Dec. 1, 2020)

(staying case pending White Castle); Vaughan v. Biomat USA, Inc., No. 20-cv-04241, 2020 WL 

6262359, at *2 (N.D. Ill. Oct. 23, 2020) (staying case pending Tims); but see Rogers v. BNSF 

Railway, Case No. 19-cv-3083, Dkt. 76 (N.D. Ill. January 29, 2021) (denying motion to stay in 
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BIPA case). Accordingly, the Court finds that the simplifying-the-issue and reduce-the-burden

factors weigh in favor of a stay.

II. Undue Prejudice or Tactical Disadvantage

Having found that the first two factors favor a stay, the Court must still consider whether 

a stay would unduly prejudice or tactically disadvantage the Plaintiff. Genzyme Corp., 2011 WL 

686807, at *1. Defendant argues that any prejudice to Plaintiff would be minimal at most, and far 

outweighed by the advantage of clarifying the statute of limitations issue as it applies to this 

case. Defendant also argues that Plaintiff’s claims of prejudice are speculative and that he has not 

identified any concrete harm that would result from the imposition of a stay. Plaintiff, on the 

other hand, argues that he would be prejudiced because he has had no opportunity thus far to 

learn how his biometric information was collected, stored, or handled, and that he has had no 

opportunity to test Defendant’s assertion that it is now BIPA compliant. Plaintiff further argues 

that the longer this case lingers, the more difficult it will be to locate, notify, and possibly 

compensate other class members who may change jobs or move throughout the country.

The Court finds that any prejudice to Plaintiff is not undue and that a stay is appropriate. 

First, the Court notes that the Tims and Marion cases are fully briefed, see Donets, Case No. 20-

cv-3551, Dkt. 37, at p.4 n.4 (N.D. Ill. December 15, 2020), and that White Castle is fully briefed 

and set for oral argument on September 14, 2021, Cothron v. White Castle, Case No. 20-3202, 

Dkt. 58 (7th Cir. June 21, 2021). As such, the stay here will be of limited duration. Second, 

Plaintiff’s contention that he will not be able to locate prospective class members because of this 

delay, while possible, is speculative at best. Similarly, Plaintiff’s argument that he has not been 

able to determine if Defendant has cured its alleged BIPA violations and that a stay of discovery 

will prevent him from testing this claim is unavailing. This argument is premised on the 
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inference that Defendant may still be violating BIPA, which, as other courts have found, is also 

speculative. See Herron, 2021 WL 1340804, at *5; Vaughan, 2020 WL 6262359, at *3. In short, 

weighing all the relevant factors, the Court joins with the well-reasoned decisions by other courts 

in this district, and finds that a stay is appropriate. However, although the Court finds that a stay 

of discovery is appropriate, there is no benefit for staying the filing of an answer to the First 

Amended Complaint. Defendant can easily include an affirmative defense based on the statute of 

limitations, which may be made untenable by the rulings in Tims, Marion, and White Castle. If 

that becomes the case, then dropping the statute of limitations defense would be a simple matter 

of amendment, or not pressing the issue at summary judgment or trial. 

CONCLUSION

For the reasons detailed above, the Court grants in part and denies in part Defendant’s 

motion to stay [50]. The motion to stay discovery is granted. However, finding that there is no 

benefit to delay the filing of an answer, Defendant is directed to file an answer to Plaintiff’s First 

Amended Complaint by July 9, 2021. Because the Court finds that a stay is appropriate, 

Plaintiff’s motion to compel [61] is denied. The parties are directed to file a joint status report 

regarding the status of the Tims, Marion, and White Castle cases on October 19, 2021.

SO ORDERED. ENTERED: June 23, 2021

_________________________________

JORGE L. ALONSO

United States District Judge