Old Dominion Used 'Kitchen Sink' Approach in Motion to Dismiss BIPA Suit: Plaintiffs
By offering over six motions as bases for dismissal, Old Dominion Freight Line filed a “kitchen sink” motion, said plaintiffs John Kararo, Sean Walker, Tri Minh La and Melvyn Caison in their Tuesday response (docket 1:23-cv-02187) to the company’s June motion to dismiss (see 2306200038) their privacy lawsuit in U.S. District Court for Northern Illinois in Chicago. Plaintiffs also seek to file a proposed third amended complaint, the filing said.
Amendments are intended to avoid potential doubt about whether the plaintiffs properly asserted violations of the Illinois Biometric Information Privacy Act (BIPA) and to demonstrate the full scope of the pending claims, said the response. No harm will result from granting relief since the court’s deadline for amendment of pleadings isn’t until Dec. 1 and fact discovery doesn't close until March 22, said the filing. The parties are just beginning to engage in discovery, it said.
The complaint alleges Old Dominion’s Kronos time clock system required employees to scan, upload and use their fingerprints for its time clock to track hours worked, and it stored their biometric identifiers without prior consent. Most arguments raised by Old Dominion’s motion to dismiss the complaint are not case-dispositive, said the response. Plaintiffs noted the arguments raised by the same defense firm “were recently rejected in relation to a state court BIPA class action” in Mims v. Freedman Seating Co.
Old Dominion “incorrectly” argues in its motion to dismiss that plaintiffs failed to satisfy subject-matter jurisdiction, said the response. Defendant’s claim that the only way plaintiffs can satisfy subject-matter jurisdiction is if they proceed on a “per scan” theory of liability of $1,000 or up to $5,000 for each violation -- and that plaintiffs “disclaimed seeking ‘per scan’ damages” -- is a “desperate mischaracterization” of allegations, it said. If facts show Old Dominion intentionally or recklessly violated BIPA, a trier of fact has the discretion of award up to $5,000 for each violation, it said. Plaintiffs will continue to argue that some amount, less than the full measure of damages afforded by the statute, "would be appropriate.”
The defendant argues Kararo, La and Walker’s claims aren’t ripe because they remain Old Dominion employees, that it published a biometric privacy policy and that the three-year time frame for it to delete their biometric data hasn’t passed. Plaintiffs say the privacy policy is “nothing more than a generic/omnibus privacy policy” vs. a biometric retention and destruction policy.
In response to claims they didn’t plead plausibly that Old Dominion’s BIPA violations were negligent, plaintiffs cited their amended complaint that “failed to disclose the consent and notice requirements of BIPA.” Its argument that plaintiffs implied consent to have their biometric information captured, without signing a written waiver, should be rejected because the “so-called” privacy policy has no language about the length of term any biometric data can be collected and used, said the response.
Old Dominion’s argument that plaintiff’s claims are barred by the doctrine of laches was rejected by the court in Mims, said the response. Its motion fails to cite any BIPA case that applied the doctrine to dismiss a case, plaintiffs said. The company hasn’t submitted an affidavit to support “its self-serving argument that it would have taken a different course of action if it had been sued sooner,” it said. The amended complaint shows Old Dominion hasn’t obtained “after-acquired consent from former employees” and “only tried to buy off” current employees with $500 pay-offs.