UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

DAWN MEEGAN,

Plaintiff,

v.

NFI INDUSTRIES, INC.,

Defendant.

No. 20 C 465

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Dawn Meegan alleges that her former employer, NFI Industries, violated the 

Illinois Biometric Information Protection Act, 740 ILCS 14/15 (“BIPA”). NFI removed 

the case from state court and filed a motion to dismiss the complaint as untimely. R. 

9. Rather than address the timeliness of the complaint, the Court sua sponte found 

that the complaint failed to allege an injury in fact under federal law, and remanded 

the case to state court. R. 19. NFI filed a motion to reconsider. R. 20. That motion is 

granted to the extent that the Court’s finding of a failure to allege an injury in fact,

and the remand order, are vacated in light of the Seventh Circuit’s recent decision in 

Bryant v. Compass Group, 958 F.3d 617 (7th Cir. 2020). In Bryant, the Seventh 

Circuit clarified what violations of BIPA constitute an injury in fact and reversed a 

district court decision this Court relied upon in its remand order. That decision 

compels a finding that the Court has subject matter jurisdiction in this case. The 

Court now addresses the timeliness issue and denies the motion to dismiss on that 

basis.

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Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v. 

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must 

provide “a short and plain statement of the claim showing that the pleader is entitled 

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of 

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed 

factual allegations” are not required, “labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. 

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard, 

the Court accepts all well-pleaded facts as true and draws all reasonable inferences 

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Additionally, a “plaintiff is not required to plead elements in his or her 

complaint that overcome affirmative defenses, such as statute-of-limitations 

defenses.” NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 299 (7th Cir. 

2018). As long as the Court can “imagine” a scenario in which the claim is timely, it 

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is improper to dismiss it on the pleadings. See U.S. Gypsum Co. v. Ind. Gas Co., Inc., 

350 F.3d 623, 628 (7th Cir. 2003) (holding that the “right question” is not whether the 

plaintiff has alleged “facts that tend to defeat affirmative defenses,” but “whether it 

is possible to imagine proof of the critical facts consistent with the allegations in the 

complaint” that would fall within the period of limitations). “But when a plaintiff’s 

complaint nonetheless sets out all of the elements of an affirmative defense, dismissal 

under Rule 12(b)(6) is appropriate.” Indep. Trust Corp. v. Stewart Info. Servs. Corp., 

665 F.3d 930, 935 (7th Cir. 2012).

Background

Meegan worked for NFI from May to August 2016. R. 1-1 ¶ 41. NFI required 

Meegan to scan her fingerprints in order to clock in and out of work. Id. ¶ 42. 

Meegan’s fingerprints were stored in NFI’s employment database, which is 

maintained by third-party Kronos. Id. ¶¶ 43, 53. NFI did not inform Meegan of its 

policy for retaining and destroying her fingerprints. Id. ¶ 45. NFI never obtained 

Meegan’s written consent regarding the use of her fingerprints. Id. ¶ 47.

Meegan alleges that NFI violated subsections (a), (b), and (d) of BIPA § 14/15. 

Subsection (a) requires an entity to develop a policy for retaining and destroying 

biometric identifiers, including fingerprints, no more than three years after the 

fingerprint owner is no longer affiliated with the entity. Subsection (b) requires 

written consent for collection of biometric information. And subsection (d) prohibits 

disclosure or dissemination of biometric information without written consent.

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Analysis

BIPA does not include a statute of limitations. Under Illinois law, “all civil 

actions not otherwise provided for, shall be commenced within 5 years next after the 

cause of action accrued.” 735 ILCS 5/13-205. To determine whether there is a more 

specifically applicable statute of limitations, Illinois courts analyze “the type of injury 

at issue, irrespective of the pleader’s designation of the nature of the action.”

Travelers Cas. & Sur. Co. v. Bowman, 893 N.E.2d 583, 587 (Ill. 2008). “[G]eneral rules 

of statutory construction” govern this analysis. See Hernon v. E.W. Corrigan Const. 

Co., 595 N.E.2d 561, 562 (Ill. 1992).

NFI argues that either a one- or two-year statute of limitations applies to 

BIPA. NFI argues further that since Meegan left NFI almost four years ago in August 

2016, her claims are untimely.

I. One-Year Statute of Limitations

A. Subsections (a) and (b) & “Publication”

NFI argues that Illinois’s one-year statute of limitations for privacy claims 

applies here. Under 735 ILCS 5/13-201, “actions for slander, libel, or for publication 

of matter violating the right of privacy, shall be commenced within one year next after 

the cause of action accrued.” NFI concedes that “publication” must be an element of 

any claim governed by the one-year statute of limitation of § 13-201. BIPA subsections 

(a) and (b) do not have a publication element, so § 13-201 cannot provide the statute 

of limitations for subsections (a) or (b).

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B. Subsection (a) & Accrual

Even if the one-year statute of limitations in § 13-201 applies, Meegan’s claim

under subsection (a) that NFI has failed to destroy her fingerprint information is not 

time-barred because, based on Meegan’s allegations, the claim did not accrue until 

three years after she left NFI. Subsection (a) requires NFI to destroy Meegan’s 

fingerprint information “when the initial purpose for collecting or obtaining such 

identifiers or information has been satisfied or within 3 years of the individual’s last 

interaction with the private entity, whichever occurs first.” 740 ILCS 14/15(a). 

Meegan alleges that NFI does not have a policy setting forth a “purpose” for collecting 

fingerprint information. Absent such a stated purpose, NFI was permitted to retain 

Meegan’s fingerprint information for up to three years after her departure from NFI, 

or August 2019. Since NFI’s retention of Meegan’s fingerprints did not violate BIPA 

until August 2019, her claim did not accrue until that date. Meegan filed this case 

about six months later in January 2020, meaning it was well within a one-year 

statute of limitations. 

NFI argues that Meegan’s allegation that NFI has failed to destroy her 

fingerprints is not well-plead because it is based on “information and belief.” But 

Meegan alleges that NFI did not provide her with a fingerprint destruction policy. 

That allegation is well-pled because she has personal knowledge of that fact. NFI’s 

failure to establish or communicate such a policy permits the plausible inference that 

it does not have a policy requiring destruction of fingerprint information and, further, 

that it has not destroyed Meegan’s fingerprint information. Discovery may reveal 

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otherwise, in which case NFI may again argue on summary judgment that the claim 

is untimely.1 But Meegan’s allegations are sufficient for her claim under subsection 

(a) to survive a challenge to its timeliness on the pleadings.2

C. Subsection (d)

The Court has found that the one-year statute of limitations provided by § 13-

201 does not apply to subsections (a) and (b) because they do not contain a 

“publication” element. To the extent Illinois law allows different subsections of a 

single act to be governed by different statutes of limitations, BIPA’s subsection (d) 

might be governed by § 13-201. Subsection (d) prohibits dissemination of biometric 

information to a third-party without consent. Meegan argues that dissemination to a 

single third-party does not constitute “publication” because “publication” requires 

dissemination to the general public. But the dissemination required to state a claim 

for slander or libel—the torts specifically mentions in § 13-201—need not be so broad. 

Rather, dissemination to a single third-party is enough. See Black's Law Dictionary 

(11th ed. 2019) (“Publication means the act of making the defamatory statement 

known to any person or persons other than the plaintiff himself. It is not necessary 

1 If that should occur, the Court expects that the parties will brief the issues raised 

in this opinion so that the Court can ultimately determine the appropriate statute of 

limitations.

2 Meegan also argues that NFI’s “ongoing” failure to destroy her fingerprint 

information is a “continuing violation” that has not accrued. It is unnecessary for the 

Court to determine whether Meegan has alleged a continuing violation in order to 

decide this motion. But to the extent it is relevant later in the case, the Court notes 

that other courts have found that ongoing illegal retention of personal property is not 

a continuing violation, but accrues when the property is first illegally obtained. See

Sherry v. City of Chicago, 2019 WL 2525887, at *3 (N.D. Ill. June 19, 2019). 

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that there should be any publication in the popular sense of making the statement 

public. A private and confidential communication to a single individual is sufficient.”); 

see also W. Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2020 WL 1330494, 

at *5 (Ill. App. Ct. 1st Dist. Mar. 20, 2020) (relying on Black’s definition of 

“publication”). Thus, the dissemination of private information prohibited by BIPA 

subsection (d) could constitute “publication” for purposes of § 13-201.

But it is unnecessary for the Court to reach this issue at this point in the 

proceedings because Meegan’s complaint does not allege when she learned that NFI 

disseminated her fingerprint information to Kronos. Meegan’s claim under BIPA 

subsection (d) only accrued when she discovered that NFI gave her fingerprint 

information to Kronos. See Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc.,

770 N.E.2d 177, 192 (Ill. 2002) (“[U]nder the discovery rule, a cause of action accrues, 

and the limitations period begins to run, when the party seeking relief knows or 

reasonably should know of an injury and that it was wrongfully caused.”). There is 

nothing in the complaint definitively demonstrating that Meegan learned that NFI 

gave her fingerprint information to Kronos more than one year prior to filing this 

case. And since plaintiffs are not required to anticipate affirmative defenses in their

complaints, to the extent § 13-201 is the applicable statute of limitations for BIPA 

subsection (d), it is not a basis to dismiss that claim on the pleadings.

II. Two-Year Statute of Limitations

NFI also argues that Meegan’s claims are subject to the two-year statute of 

limitations provided by 735 ILCS 5/13-202. The Court has found that Meegan’s claims 

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under both subsection (a) and (d) survive a motion to dismiss regardless of the 

applicable statute of limitations. However, the Court must address whether the twoyear statute of limitations provided by 735 ILCS 5/13-202 applies to subsection (b), 

which prohibits collection of biometric information without consent. The last time 

NFI could have collected Meegan’s fingerprints without her consent was more than 

two years ago because Meegan has alleged that she left NFI in 2016. This claim would 

be untimely under the two-year statute of limitations of section 13-202, if applicable.3

Section 13-202 provides that actions “for a statutory penalty . . . shall be 

commenced within 2 years.” Meegan argues that section 13-202 does not apply 

because BIPA is not penal, but remedial. A statute “is penal if it (1) imposes automatic 

liability for a violation of its terms; (2) sets forth a predetermined amount of damages; 

and (3) imposes damages without regard to the actual damages suffered by the 

plaintiff.” Standard Mut. Ins. Co. v. Lay, 989 N.E.2d 591, 599 (Ill. 2013). By contrast, 

remedial statutes “are designed to grant remedies for the protection of rights, 

introduce regulation conducive to the public good, or cure public evils.” Id. However, 

remedial statutes may also impose penalties as “one part of the regulatory scheme, 

intended as a supplemental aid to enforcement rather than as a punitive measure,”

without thereby being considered “penal statutes.” Scott v. Ass’n for Childbirth at 

Home, Int’l, 430 N.E.2d 1012, 1017 (Ill. 1981).

3 The same would be true of Meegan’s claim under subsection (a) if discovery shows 

that accrual of that claim occurred more than two years prior to the filing of this case.

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BIPA provides for liquidated damages penalties. See 740 ILCS 14/20. But it 

also permits recovery of actual damages. See id. And as NFI concedes, BIPA is 

concerned with the protection of personal privacy, and regulating the use of biometric 

information. In enacting the statute, the legislature found that “[t]he public welfare, 

security, and safety will be served by regulating the collection, use, safeguarding, 

handling, storage, retention, and destruction of biometric identifiers and 

information.” 740 ILCS 14/5. BIPA’s provision for actual damages and the regulatory 

intent of its enactment show that it is a remedial statute not within the scope of the 

two-year statute of limitation imposed by section 13-202. 

Therefore, Illinois’s catchall statute of limitations of five years applies to 

subsection (b) such that Meegan’s claim under that subsection is timely. The one 

Illinois court to have addressed this issue in a published decision agrees. See 

Robertson v. Hostmark Hospitality Group, Inc., 2019 WL 8640568, at *4 (Ill. Cir. Ct. 

Chan. Div. July 31, 2019).

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Conclusion

For these reasons, NFI’s motion to reconsider [20] is granted, to the extent that 

the remand order of March 26, 2020 [19] is vacated. The Clerk is ordered to reopen 

the case. Further, on reconsideration, the motion to dismiss [9] is denied. By July 7, 

2020 the parties should file a joint status report proposing a discovery schedule, and 

otherwise addressing how they would like to proceed.

ENTERED:

______________________________

Honorable Thomas M. Durkin

United States District Judge

Dated: June 4, 2020

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