On Wednesday, Macy’s Retail Holdings Inc. filed a searing motion to dismiss the plaintiff Isela Carmean’s claims alleging violations of the Illinois Biometric Information Privacy Act (BIPA). The filing asserts that the plaintiff engaged in “legal gamesmanship” for the purpose of forum shopping in her efforts to include Macy’s in the multidistrict litigation (MDL) against Clearview AI. The MDL participants are currently sparring over a preliminary injunction.
The motion explained that by Dec. 15, 2020, the Judicial Panel on Multidistrict Litigation consolidated every underlying case between individual plaintiffs and Clearview AI into the current Northern District of Illinois MDL, except for Carmean’s case against Macy’s.
Carmean alleged that because Macy’s contracted with Clearview AI and used its products, the department store illegally accessed and profited from customers’ biometric information. Macy’s moved for dismissal.
Allegedly, three days before Carmean’s opposition brief was due, she voluntarily dismissed the complaint. The motion stated that now, Carmean and the MDL plaintiffs have attempted to insert the same claims against Macy’s into the MDL by filing their consolidated complaint and adding Macy’s as a defendant.
This is so, the motion claimed, despite the fact that Carmean neither moved to transfer the original case to the MDL, nor does the case exist any longer. In addition, Macy’s asserted that there are no allegations in the consolidated complaint that Carmean or any other plaintiff actually visited a Macy’s store, and therefore could have been in a position to have their biometric information collected.
This week’s filing claimed that the court lacks subject matter jurisdiction over Carmean’s claims because “an MDL cannot receive a new plaintiff or defendant absent an underlying case involving the party that is properly transferred to the MDL.” The fact that Carmean voluntarily dismissed her previous case against Macy’s eliminates any underlying case that could be consolidated into the MDL, and thereby deprives the present court of subject matter jurisdiction, Macys argued.
Separately, the motion stated, the equitable reasons favor dismissal. Macy’s accused Carmean and the MDL plaintiffs of “blatant forum-shopping.” Too, the plaintiff has allegedly caused Macy’s to unfairly expend time and energy defending the first suit, and now this suit.
“Enough is enough,” the motion’s conclusion reads. Macy’s asked for the court to dismiss the claims against it in the consolidated complaint and grant any other relief deemed proper.
Macy’s is represented by Taft Stettinius & Hollister LLP.