UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

TAMARA COLON, individually and on behalf 

of all others similarly situated,

 Case No. 1:20-cv-03317 

 Plaintiff,

Hon. Robert M. Dow, Jr. 

v.

Magistrate Judge M. David Weisman

DYNACAST, LLC,

Defendant.

PLAINTIFF’S MOTION TO REMAND 

For the reasons set forth herein, and pursuant to 29 U.S.C. § 1447(c), Plaintiff Tamara 

Colon hereby moves for an order remanding this case to the Circuit Court of Cook County, 

Illinois for the second time. Alternatively, should this Court decline to do so, Plaintiff moves for 

an order severing and dismissing without prejudice only her claims pursuant to Section 15(a) of 

the Biometric Information Privacy Act, 740 ILCS 14/15(a). 

BACKGROUND 

Plaintiff first filed her class action complaint in Illinois State court on April 23, 2019, 

alleging that Defendant violated the Biometric Information Privacy Act (“BIPA”) in several 

different ways with respect to the collection, storage, and use of its workers’ biometric data. See

generally Exhibit A, April 23, 2019 Class Action Complaint. There, Plaintiff alleged that the 

Illinois State court had jurisdiction over Defendant pursuant to 735 ILCS 5/2-209 because 

Defendant conducts business transactions in Illinois, committed unlawful acts in Illinois, and is 

registered to conduct business in Illinois. Id. ¶ 5. Plaintiff further alleged that the Illinois State 

court has jurisdiction over her because she is a resident of the State of Illinois. Id. ¶ 6. Plaintiff 

alleged that Defendant committed the following four violations of Section 15 of BIPA: 

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 Defendant violated 740 ILCS 14/15(a) by failing to publicly provide a retention 

schedule or guideline for permanently destroying biometric identifiers and 

biometric information it collected from Plaintiff and the Class (Id. ¶ 41); 

 Defendant violated 740 ILCS 14/15(b)(1) by failing inform Plaintiff and the 

Class in writing that their biometric identifiers and/or biometric information 

were being collected and stored (Id. ¶ 42); 

 Defendant violated 740 ILCS 14/15(b)(2) by failing to inform Plaintiff and the 

Class in writing of the specific purpose and length of term for which their 

biometric identifiers and/or biometric information was being collected, stored, 

and/or used (Id. ¶ 43); and 

 Defendant violated 740 ILCS 14/15(b)(3) by failing to obtain written releases 

from Plaintiff and the Class before it collected, used, and/or stored their 

biometric identifiers and biometric information (Id. ¶ 44). 

Defendant filed its first notice of removal on July 5, 2019, contending that removal was 

proper because (1) there is complete diversity of citizenship between the parties and the amount 

in controversy exceeds $75,000; and (2) the Class Action Fairness Act (CAFA) provides a basis 

for federal jurisdiction over this action. July 5, 2019 Not. of Removal, Doc. 1, No. 19-cv-4561. 

Plaintiff then moved to remand the case for lack of subject matter jurisdiction, arguing that 

neither 28 U.S.C. § 1332(a) nor CAFA conferred jurisdiction, and further asserting that 

Plaintiff’s claims did not amount to an injury in fact as required for Article III standing. See 

generally August 7, 2019 Mot. to Remand, Doc. 15, No. 19-cv-4561. 

On October 17, 2019 this Court remanded the case to the Circuit Court of Cook County, 

finding a lack of subject matter jurisdiction because Plaintiff did not allege a “concrete injury” in 

her Complaint. See generally Oct 17, 2019 Mem. Op. and Order, Doc. 20, No. No. 19-cv-4561. 

Given this holding, the Court declined to rule on the propriety of removal pursuant to diversity or 

CAFA jurisdiction. Id. at 2, n. 2. Defendant sought no review of that ruling, and litigation 

proceeded in Cook County. There, Defendant filed and the parties briefed its comprehensive 

motion to dismiss Plaintiff’s claims on various grounds. Defendant also responded to written 

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discovery requests in that forum. Now, nine months after this Court’s original remand, 

Defendant has again removed the case on identical bases but with a new tangential reference to 

an opinion issued in a wholly separate case. Notice of Removal at 9. Defendant is too late, and 

its second attempt at removal should not stand. 

ARGUMENT 

The removal of an action to federal court must be timely and abide by the relevant rules. 

As a general matter, and in this case, the deadline for removal falls 30 days after the filing of a 

complaint. See 28 U.S.C. § 1446(b)(1). Defendant’s second attempt at removal of this case 

comes well over a year after the filing of the Complaint, and the removal statute provides no 

basis for the delay. The Court should remand the case for this reason alone. 

Further, remand for lack of subject matter jurisdiction is appropriate if “at any time 

before final judgment it appears the district court lacks subject matter jurisdiction.” 28 U.S.C. § 

1447(c); see also United States v. $304,980.00 in U.S. Currency, 732 F.3d 812, 817 (7th Cir. 

2013) (the district court has an independent obligation to ensure that it has subject matter 

jurisdiction over a case before deciding the merits). This matter may properly proceed under the 

subject matter jurisdiction of the federal court only if both diversity jurisdiction and Article III 

standing exist. See Moore v. Olson, 368 F.3d 757, 760 (7th Cir. 2004) (“If Congress has 

authorized federal courts to resolve particular claims, and if the claim presents a case or 

controversy within the scope of Article III, then federal courts have subject matter jurisdiction”). 

In this case, jurisdiction does not exist either under 28 U.S.C. § 1332(a) or CAFA, providing an 

additional basis for remand. 

Finally, these principles must apply against the backdrop that in the case of removal, the 

defendant bears “the burden of establishing federal jurisdiction, and federal courts should 

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interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of 

forum in state court.” Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir.2009), 

citing Doe v. Allied–Signal Inc., 985 F.2d 908, 911 (7th Cir.1993). Defendant cannot meet its 

burden such that this case should proceed in this Court. 

I. Defendant’s Removal is Untimely. 

This Court need look no further than the removal statute and the face of Defendant’s Notice 

of Removal to find that the removal comes too late. A defendant has 30 days from service of an 

initial pleading to remove an action to federal court where the basis for removal appears on the 

face of that initial pleading. 28 U.S.C. § 1446(b)(1). Defendant acknowledges that its removal 

relies on that initial pleading, but submits that the Seventh Circuit’s decision in Bryant v. Compass 

Group USA, Inc. 958 F.3d 617 (7th Cir. 2020) provides a separate basis for removal at this late 

stage and after this Court’s previous remand. Notice at ¶ 3. Defendant is wrong. 

Under certain circumstances, 28 U.S.C. § 1446(b)(3) effectively restarts the 30-day clock 

on removal. This happens where a basis for removal did not appear in the initial pleading, and the 

defendant later receives “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.” The opinion in Bryant, 

a case in which neither party participated, did not trigger the basis for removal under subsection 

(b)(3). Indeed, the entirety of that subsection encompasses only documents “filed in the suit sought 

to be removed, not in some other suit.” Wisc. v. Amgen, Inc., 516 F.3d 530, 533–34 (7th Cir. 2008. 

This is a near-universal interpretation of Section 1446(b)(3). Amgen, 516 F.3d at 533–34.

(collecting cases); see also Ill. v.McGraw-Hill Co., Inc., No. 13 C 1725, 2013 WL 1874279, at *2 

(N.D. Ill. May 2, 2013) (citing Amgen and collecting additional cases); Morsani v. Major League 

Baseball, 79 F. Supp. 2d 1331, 1333 (M.D. Fla 1999) (noting that “many courts have examined 

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and rejected the defendants’ argument than an order entered in another case may constitute an 

‘order or other paper’ pursuant to Section 1446(d),” and citing nine cases from various jurisdictions 

dating back as far as 1968).1 Bryant does not constitute an “order or other paper from which it may 

first be ascertained” that this case was removable. Courts have uniformly rejected Defendant’s 

position to the contrary for decades. This Court should remand the case to Circuit Court. 

 It bears noting that Defendant also cannot satisfy the first operative phrase in Section 

1446(b)(3), requiring that basis for removal did not appear in the initial pleading. Plaintiff’s 

Complaint has not changed since it was first filed and Defendant previously and unambiguously 

argued that “the allegations in Colon’s Complaint establish Article III standing.” Aug. 23, 2019 

Def. Resp. to Mot. to Remand at 7. If Defendant wished to revisit this Court’s October 17, 2019 

Order finding otherwise and remanding the case, its recourse was to seek leave to appeal that Order 

pursuant to 28 U.S.C. § 1453(c)(1). This is precisely what the defendant in Bryant chose to do. 

958 F.3d at 620. In any event Bryant did not create the jurisdiction on which Defendant now relies 

and has consistently advocated for, it merely clarified that it exists; the grounds for removal were 

in the Complaint all along. 

Instead of exhausting its argument in favor of standing, Defendant proceeded with 

litigation in state court and utilized both that court’s and the parties’ resources there. Permitting 

the removal defendant seeks here, over a year after the case began and without any change in the 

instant litigation, would provide defendants with limitless opportunities to interrupt state court 

proceedings at any stage. The statute simply does not permit this result absent some bad faith on a 

plaintiff’s part. Amgen, 516 F.3d at 534 (noting that restarting the 30-day removal clock based 

1 Walker v. Trailer Transit, Inc., on which Defendant relies to argue that this removal is timely, is 

consistent with this rule. There, the court found the 30-day timeline triggered by defendant’s receipt of 

discovery responses from plaintiff, which resulted in a new damages calculation that met the threshold for 

CAFA jurisdiction. 727 F.3d 819, 821 (7th Cir. 2013). 

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upon filings in other cases could permit removal “years after a suit had been proceeding in state 

court” without adequate justification); see also U.S. v. Rice, 327 U.S. 742, 751 (1946) (explaining 

the policy underlying the removal statute of “not permitting interruption of the litigation of the 

merits . . . by prolonged litigation of questions of jurisdiction of the district court . . .”). That this 

Court’s previous remand order is in conflict with Bryant does not change these policy 

considerations. In re: Lowe, 102 F.3d 731, 735 (4th Cir. 1996) (“removal in diversity cases, to the 

prejudice of state court jurisdiction, is a privilege to be strictly construed; for this reason, in 

deciding whether to remand, the district court has one shot, right or wrong”) (internal citations and 

quotations omitted). 

II. Plaintiff’s Damages Cannot Reach the $75,000 Diversity Threshold 

Defendant asks this Court to accept a contorted and implausible reading of the Complaint 

and the law in a strained attempt to establish how Plaintiff’s damages could meet or exceed the 

$75,000 diversity threshold. It is implausible that Plaintiff’s individual damages will so much as 

approach that amount. 

Plaintiff’s Complaint comports with the Illinois Supreme Court’s interpretation of BIPA, 

as pronounced in Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186. Rosenbach

explains that “[t]he duties imposed on private entities by section 15 of the Act regarding 

collection, retention, disclosure, and destruction of a person’s or customer’s biometric identifiers 

or biometric information define the contours of that statutory right. Accordingly, when a private 

entity fails to comply with one of section 15’s requirements, that violation constitutes an 

invasion, impairment, or denial of the statutory rights of any person or customer whose biometric 

information is subject to the breach.” Id. ¶ 33 (emphasis added). Rosenbach does not 

contemplate any manner of BIPA violations outside of those enumerated in Section 15. See id.

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This language in Rosenbach clarifies that Defendant’s proposed reading, which characterizes 

each time an employee clocks in or out as a distinct violation, is not how the Illinois Supreme 

Court reads the statute. Such an interpretation, in fact, would be absurd.2

Importantly, Plaintiff has not alleged that she is entitled to such extraordinary damages 

under BIPA. Her Complaint makes clear that she seeks statutory damages for each of four

specific Section 15 violations specifically alleged in paragraphs 41–44. See Ex. A, ¶¶ 41–44; 740 

ILCS 14/15. With maximum damages of $5,000 per violation, and four violations alleged, 

Plaintiff’s maximum potential damages total $20,000. Defendant is not empowered to 

mischaracterize or expand Plaintiff’s allegations to establish federal jurisdiction. Brill v. 

Countrywide Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (explaining that the plaintiff, 

“as master of the case . . . may limit his claims to keep the amount in controversy below the 

threshold,” and that “part of the removing party’s burden is to show not only what the stakes of 

the litigation could be, but also what they are given the plaintiff’s actual demands) (emphasis in 

original). Plaintiff’s BIPA claims, as she has alleged them, do not amount to $75,000. 

Defendant also asserts that attorneys’ fees might push the total damages at issue over the 

threshold; this is incorrect. The amount in controversy requirement is measured as of the date of 

removal. Oshana v. Coca–Cola Co., 472 F.3d 506, 510–11 (7th Cir. 2006) (citations omitted). 

Thus, only those fees Plaintiff incurred as of June 4, 2020 may count towards the $75,000 

minimum. Smith v. Am. Gen. Life & Acc. Ins. Co., 337 F.3d 888, 896–97 (7th Cir. 2003) (“post2

 Under Defendant’s proposed reading, every employee of a non-compliant Illinois business who clocked 

in four times per day (at the beginning and end of their workday and the beginning and end of their lunch 

break) would stand to recover either $4,000 (for negligent violations) or $20,000 (for reckless violations) 

per day worked. This is not a conceivable result and therefore cannot properly support jurisdiction. See 

Smith v. Am. Gen. Life & Acc. Ins. Co., 337 F.3d 888, 894 (7th Cir. 2003) (where it is legally certain that 

the amount-in-controversy will not be met, “the court must dismiss the case for want of jurisdiction”).

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filing attorney’s fees cannot count toward the amount in controversy requirement”). Plaintiff’s 

attorneys’ fees incurred through that date total $39,082.40. This figure places the total amount in 

controversy between $43,082.40 and $49,082.40, neither of which will permit jurisdiction under 

28 U.S.C. § 1332(a). 

Finally, while Defendant references Plaintiff’s request for injunctive relief, it does not 

attach any proposed value to such relief. However, because the value of injunctive relief “is 

valued by the measure of the object of the litigation,” Macken ex rel. Macken v. Jensen, 333 F.3d 

797, 799 (7th Cir. 2003) the Court need only reference the monetary damages sought in the 

Complaint and explained in detail above. The object of the litigation here is the recovery of 

statutory damages authorized by BIPA, not injunctive relief. Thus, no value should necessarily 

attach to the non-monetary request for relief for purposes of the amount in controversy. 

III. The Total Damages Cannot Reach the $5MM CAFA Threshold 

As is the case with its attempt to invoke diversity jurisdiction, Defendant can only invoke 

jurisdiction pursuant to CAFA by mischaracterizing Plaintiff’s allegations. The damages Plaintiff 

in fact seeks do not meet the $5,000,000 CAFA threshold. Colon’s individual damages, per 

Rosenbach and her own allegations, do not exceed $20,000. She alleges a class size of 

approximately 200 people. Ex. A ¶ 22. In all, the maximum damages at issue cannot exceed 

$4,000,000 (200 class members x $5,000 per violation x 4 violations per member), well below 

the CAFA threshold. Thus, this Court cannot exercise jurisdiction pursuant to CAFA either. 

IV. Alternatively, this Court should Sever and Remand the 15(a) Claim 

While Bryant is of no use to Defendant, it does provide this Court with a basis to sever and 

remand a subset of Plaintiff’s BIPA claims. Should the Court decline to remand this case, Plaintiff 

seeks in the alternative that it sever and dismiss without prejudice Plaintiff’s claim pursuant to 

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BIPA Section 15(a). A violation of that section does not amount to a concrete injury such that this 

Court can exercise subject matter jurisdiction over that particular harm. Bryant, 958 F.3d at 626; 

see also Fox v. Dakkota Integrated Sys., No. 19 cv 2872, May 26, 2020 Order (Kocoras, J.) 

(severing and dismissing without prejudice 15(a) claims based upon Bryant) (attached as Exhibit 

B); Kloss v. Acuant, Inc., No. 19 C 6353, 2020 WL 2571901, at *1 (N.D. Ill. May 21, 2020) 

(Kocoras, J.) (same). 

V. This Court should Award Plaintiff her Fees incurred in Connection with her 

Motion to Remand. 

The removal statute empowers a district court entering a remand order to require payment 

of “costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 

28 U.S.C. § 1447(c). As explained in Section I, decades of caselaw across district and circuit 

courts makes clear that Bryant did nothing to change the removability of this case at this late 

stage. Given this, there was no legitimate basis for the second removal. Its only effect will be to 

further delay an already sluggish case and drive up both parties’ fees. In light of Wisconsin v. 

Amgen and its progeny, Defendant cannot establish any “objectively reasonable basis” for its 

untimely removal attempt. An award to Plaintiff of her fees is appropriate. Martin v. Franklin 

Capital Corp., 546 U.S. 132 141 (2005) (“absent unusual circumstances, courts may award 

attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable 

basis for seeking removal”). Plaintiff will submit, as an exhibit to her reply brief, a calculation of 

the total fees incurred in connection with this motion. 

 

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CONCLUSION 

Defendant’s Notice of Removal comes a year too late, and Bryant cannot save it. Further, 

Plaintiff’s claims do not confer diversity jurisdiction or CAFA jurisdiction. Plaintiff seeks 

remand of this matter to the Circuit Court of Cook County, Illinois, and payment of just her 

attorneys’ fees incurred as a result of the removal. 

In the alternative, Plaintiff requests that this Court sever her claim pursuant to BIPA 

Section 15(a) for lack of subject matter jurisdiction. 

Dated: July 3, 2020 

Alejandro Caffarelli 

Madeline K. Engel 

Caffarelli & Associates Ltd. 

224 South Michigan Avenue, Suite 300 

Chicago, Illinois 60604 

Tel. (312) 763-6880 

acaffarelli@caffarelli.com 

mengel@caffarelli.com

Respectfully submitted, 

TAMARA COLON, individually and on behalf 

of all others similarly situated, 

By: /s/ Madeline K. Engel 

 Attorney for the Plaintiff 

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