IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

MELISSA THORNLEY, DEBORAH )

BENJAMIN-KOLLER, and JOSUE )

HERRERA, individually and on behalf of )

all others similarly situated, )

)

Plaintiffs, )

) Case No. 20-cv-3843

v. )

) Hon. Sharon Johnson Coleman

CLEARVIEW AI, INC., )

)

Defendant )

PLAINTIFFS’ RESPONSE TO MOTION TO CONSOLIDATE

FILED BY MUTNICK PLAINTIFFS IN CASE NO. 20-CV-512

Plaintiffs Melissa Thornley, Deborah Benjamin-Koller and Josue Herrera (“Plaintiffs”), 

through counsel, submit this Response to the Motion to Consolidate (Mutnick, ECF 82) filed by 

plaintiff David Mutnick in Mutnick v. Clearview AI, Inc., et al, Case No. 20-cv-512.

This action was removed to this Court by defendant Clearview AI, Inc.(“Clearview”) from 

the Circuit Court of Cook County, Illinois, where it was originally filed. Plaintiffs contend that 

this Court lacks subject matter jurisdiction over this action and are filing a Motion to Remand

contemporaneously with this response brief. Pursuant to a scheduling Order entered by Judge 

Tharp before the matter was transferred to this Court, Clearview’s response to the Motion to 

Remand is due by August 13, 2020, and Plaintiffs’ reply is due by August 24, 2020. (ECF 25.)

As Mutnick notes in his Motion to Consolidate, Plaintiffs’ counsel advised Mutnick’s 

counsel that, if Plaintiffs’ Motion to Remand is denied, they will consent to consolidation of this 

case with the three other Clearview cases. (Mutnick, ECF 82 at 2 n.1.)

In his Motion to Consolidate, Mutnick suggests that the consolidation he proposes would 

moot what he calls Plaintiffs’ “procedural motion” and urges the Court to grant his motion even 

Case: 1:20-cv-03843 Document #: 29 Filed: 07/21/20 Page 1 of 3 PageID #:128
2

before Plaintiffs’ Motion to Remand is decided. But the issue raised by Plaintiffs’ Motion to 

Remand is not simply “procedural,” but rather is a challenge – based on the absence of Article III 

standing – to this Court’s exercise of subject matter jurisdiction over Plaintiffs’ claims. See, e.g., 

Moore v. Olsen, 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”) (emphasis added); see McGinnis v. 

United States Cold Storage, Inc., 382 F. Supp. 3d 813, 815 n.1 (N.D. Ill. 2019) (BIPA case) (“[A]

plaintiff must also satisfy Article III’s requirements to establish subject matter jurisdiction over a 

case, in addition to statutorily conferred jurisdiction.”) (citing Moore).

When a lack of Article III standing is demonstrated following the removal of a case from 

state court, a federal court must remand that case back to state court for lack of subject matter 

jurisdiction. Coyne v. Am. Tobacco Co., 183 F.3d 488, 496 (6th Cir. 1999) (“Plaintiffs do not have 

standing to bring this action . . .. Accordingly, this Court lacks subject matter jurisdiction and this

action must be remanded to the state court from which it was removed”); Wheeler v. Travelers Ins. 

Co., 22 F.3d 534, 540 (3d Cir. 1994) (“a determination that there is no standing . . . requires us to 

remand . . . to state court”); Maine Ass’n of Interdependent Neighborhoods v. Comm’r, Maine 

Dep’t Human Servs., 876 F.2d 1051, 1053-54 (1st Cir. 1989) (same); see 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.”).

Mutnick’s apparent contention that the filing of a Consolidated Complaint that includes 

Plaintiffs will moot their remand arguments is erroneous. See In re Burlington N. Santa Fe Ry. 

Co., 606 F.3d 379, 380 (7th Cir.2010) (“The well established general rule is that jurisdiction is 

determined at the time of removal, and nothing filed after removal affects jurisdiction.”).

Case: 1:20-cv-03843 Document #: 29 Filed: 07/21/20 Page 2 of 3 PageID #:129
3

Plaintiffs respectfully submit that because Plaintiffs’ Motion to Remand raises a question 

regarding the Court’s subject matter jurisdiction over Plaintiffs and Plaintiffs’ claims, the Motion 

to Remand must be decided before Plaintiffs’ case can be consolidated with Mutnick and before 

Plaintiffs can be added to a Consolidated Complaint.

Dated: July 21, 2020

Daniel M. Feeney

Zachary J. Freeman

Miller Shakman Levine & Feldman LLP

180 North LaSalle Street, Suite 3600

Chicago, IL 60601

Tel. (312) 263-3700

Fac. (312) 263-3270

Email: dfeeney@millershakman.com

 zfreeman@millershakman.com

David S. Golub (pro hac vice)

Steven L. Bloch (pro hac vice)

Silver Golub & Teitell LLP

184 Atlantic Street

Stamford, CT 06901

Tel. (203) 325-4491

Fac. (203) 325-3769

Email: dgolub@sgtlaw.com

sbloch@sgtlaw.com

Respectfully submitted,

MELISSA THORNLEY 

DEBORAH BENJAMIN-KOLLER

JOSUE HERRERA

/s/ David S. Golub

One of their attorneys

Kevin M. Forde

Brian P. O’Meara

Kevin R. Malloy

Forde & O’Meara LLP

111 West Washington Street

Suite 1100

Chicago IL 60602

Tel. (312) 641-1441

Fac. (312) 641-1288 (

Email: kforde@fordellp.com

 bomeara@fordellp.com

 kmalloy@fordellp.com

Case: 1:20-cv-03843 Document #: 29 Filed: 07/21/20 Page 3 of 3 PageID #:130