Case: 1:21-cv-05702 Document #: 32 Filed: 10/07/22 Page 1 of 7 PageID #:359
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`RICARDO GUTIERREZ AND SHANNON ROSS,
`INDIVIDUALLY AND ON BEHALF OF ALL
`OTHERS SIMILARLY SITUATED,
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` Plaintiffs,
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` v.
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`WEMAGINE.AI LLP,
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` Defendant.
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`No. 21 C 05702
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`Judge Thomas M. Durkin
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`MEMORANDUM OPINION AND ORDER
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`Plaintiffs Ricardo Gutierrez and Shannon Ross (“Plaintiffs”) bring this
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`putative class action against Defendant Wemagine.AI LLP (“Wemagine”), alleging
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`violations of the Illinois Biometric Information Privacy Act (“BIPA”), 740 Ill. Comp.
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`Stat. 14/1, et seq. Before the Court is Wemagine’s second motion to dismiss for lack of
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`personal jurisdiction and failure to state a claim, R. 24. That motion is granted.
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`Background
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`Wemagine, a limited liability partnership registered in British Columbia,
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`Canada, develops and owns a mobile application, Voila AI Artist (“Voila” or “the
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`App”). R. 21-1 ¶¶ 1, 16. The App uses artificial intelligence to extract a person’s face
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`from a photo and transform it to look like a cartoon. Id. ¶¶ 8, 34. Plaintiffs are Illinois
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`citizens who are users of the App. Id. ¶¶ 8, 14–15. Plaintiffs allege that Wemagine
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`violates BIPA by collecting, storing, and disclosing the facial geometry and biometric
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`1
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`data of Voila users without their consent. Id. ¶¶ 8–10, 12–13, 24, 33, 39, 43–46, 51–
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`53, 58–60, 76–78, 87–88.
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`After this Court dismissed the original Complaint for lack of personal
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`jurisdiction on January 26, 2022 (R. 19), it granted Plaintiffs’ motion for leave to file
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`an Amended Complaint (R. 22). The Amended Complaint is distinct from the original
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`Complaint in two notable ways: first, it includes allegations regarding a second
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`named plaintiff, Shannon Ross, who downloaded Voila in Illinois and paid $29.99 for
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`an annual Voila Pro subscription. R. 21-1 ¶¶ 28–29, 32–33, 55–56. Second, the
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`Amended Complaint alleges the App derives substantial revenue from nearly 5,000
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`Illinois-based users due to subscription fees and its display of third-party advertising
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`to “free” users. Id. ¶¶ 18, 26–27, 31, 33, 50. Wemagine filed a motion to dismiss
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`Plaintiffs’ Amended Complaint, arguing again that this Court lacks personal
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`jurisdiction over Wemagine and that Plaintiffs have failed to state a claim. R. 24.
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`Analysis
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`Plaintiffs’ additions to the Amended Complaint do not salvage their claims,
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`and the Amended Complaint must again be dismissed for many of the same reasons
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`this Court identified in its Opinion granting Wemagine’s first motion to dismiss. See
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`R. 19. Courts may assert specific jurisdiction where (1) the defendant has
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`purposefully directed [its] activities at the forum state or purposefully availed [itself]
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`of the privilege of conducting business in that state, and (2) the alleged injury arises
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`out of the defendant's forum-related activities.” N. Grain Mktg., LLC v. Greving, 743
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`2
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`F.3d 487, 492 (7th Cir. 2014) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
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`472 (1985)).
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`Here, Plaintiffs first argue that this Court has specific personal jurisdiction
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`over Wemagine because, in addition to downloading and using Voila in Illinois,
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`Plaintiff Gutierrez and other Illinois users of the free version are subject to third-
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`party advertising during their use of the App. This, Plaintiffs contend, generates
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`revenue for Wemagine in Illinois. However, “advertisements or solicitation of
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`business is not enough to sustain personal jurisdiction in Illinois.” Linehan v. Golden
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`Nugget, 2008 WL 4181743, at *6 (N.D. Ill. Sept. 5, 2008) (citing Crum & Forster
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`Specialty Ins. Co. v. Extended Stay America, Inc., 873 N.E.2d 964 (Ill. App. Ct. 1st.
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`2007)); see also Congdon v. Cheapcarribbean.com, Inc., 2017 WL 5069960, at *7 (N.D.
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`Ill. Nov. 3, 2017) (no personal jurisdiction where solicitation, advertising, and sales
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`were not conducted with any specificity to Illinois). Like Congdon, here there is no
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`evidence that Wemagine purposefully directed any of its conduct toward Illinois, did
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`any Illinois-specific shipping, marketing or advertising, or sought out the Illinois
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`market in any way. Plaintiffs also do not allege that the advertisements shown to free
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`users in Illinois were for Illinois companies or for Wemagine itself.
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`Further, Plaintiffs do not allege that their injuries arose out of the third-party
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`advertisements. Plaintiffs’ extensive citation of Keiken v. Music Corp, of America,
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`Inc., 1993 WL 280818 (N.D. Ill. July 26, 1993), is erroneous because the court there
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`later overruled the holding on which Plaintiff relies. 1994 WL 11617, at *2 (N.D. Ill.
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`Jan. 3, 1994). On reconsideration, the Keiken court found that the plaintiff’s injury at
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`3
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`a Florida theme park did not “arise out of” the defendant’s Illinois advertisements
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`because the plaintiff never saw the advertisements. Id. This holding conformed to the
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`substantial jurisprudence in Illinois that advertisements without a causal nexus to
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`the injury cannot provide a basis for personal jurisdiction. Id.1 In this case, too,
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`Wemagine’s alleged violation of BIPA did not arise out of the third-party
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`advertisements in question, which only appeared to users after the App had already
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`been downloaded, and were not designed to encourage users to download or use the
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`App. Instead, the alleged harm was occasioned by Gutierrez’s own conduct of
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`downloading and using the App. As this Court has discussed, courts “should be
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`careful in resolving questions about personal jurisdiction involving online contacts to
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`ensure that a defendant is not haled into court simply because the defendant owns or
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`operates [an interactive] website that is accessible in the forum state.” Matlin v. Spin
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`Master Corp., 921 F.3d 701, 706 (7th Cir. 2019) (quoting Illinois v. Hemi Group LLC,
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`622 F.3d 754, 760 (7th Cir. 2010)). Therefore, Plaintiff Gutierrez’s alleged basis of
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`asserting personal jurisdiction via third party advertisement revenue fails.
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`1 Plaintiffs’ other authorities on this point are distinguishable for the same
`reasons. That is, the defendants in those cases specifically targeted their marketing
`activities to the forum states. See, e.g., Doffing v. Meta Platforms, Inc., Case No. 1:22-
`cv-00100-CL, 2022 WL 3357698, at *4–5 (D. Or. July 20, 2022) (court had personal
`jurisdiction over app designer where it entered contracts with forum residents, sent
`thousands of communications to forum users, tracked and broadcasted user locations,
`and provided location-based recommendations); Boone v. Sulphur Creek Resort, Inc.,
`749 F. Supp. 195, 199–200 (S.D. Ind. 1990) (“Of primary importance . . . is the
`evidence that the Resort made the residents of [the forum state] specific targets of
`the Resort’s advertising . . .”). Additionally, the advertisements had some sort of
`causal connection to the purported claims. See, e.g., Walker v. Carnival Cruise Lines,
`Inc., 681 F. Supp. 470, 474 (N.D. Ill. 1987) (passenger’s injury on cruise ship arose
`out of cruise company’s advertising activities where passenger asserted that the
`company’s marketing in the forum caused her to book the cruise).
`4
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`Neither does the allegation that Plaintiff Ross paid for the Pro version of the
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`App in Illinois establish specific personal jurisdiction. The plaintiff cannot be the sole
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`link between a defendant and the forum. Kosar v. Columbia Sussex Management,
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`LLC, 2021 WL 5356753, *6 (N.D. Ill. Nov. 16, 2021) (quoting Rogers v. City of Hobart,
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`996 F.3d 812, 819 (7th Cir. 2021)). Again, the alleged injury must arise from the
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`defendant’s contacts with Illinois. See Kosar, 2021 WL 5356753 at *6.
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`In be2 LLC v. Ivanov, Illinois residents accessed and created profiles on an
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`online dating site, but there was no evidence that the site targeted the Illinois market.
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`642 F.3d 555, 559 (7th Cir. 2011) (“If the defendant merely operates a website, even
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`a ‘highly interactive’ website, that is accessible from, but does not target, the forum
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`state, then the defendant may not be haled into court in that state without offending
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`the Constitution.”). Similarly, though Plaintiff Ross downloaded and paid for the Pro
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`version of Voila in Illinois, there is no evidence that Wemagine purposefully directed
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`the subscription toward Illinois in a way that Wemagine availed itself of the privilege
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`of doing business in the state. Id. Like an interactive website, any alleged harm here
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`was occasioned by Plaintiff Ross’s own interaction with Voila—downloading and
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`accessing the App and then uploading his photo—rather than the Defendant’s specific
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`actions in this jurisdiction. Matlin, 921 F.3d at 706; see also Breschia v. Paradise
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`Vacation Club, Inc., 2003 WL 22872128, at *3 (N.D. Ill. Dec.4, 2003) (dismissing for
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`lack of personal jurisdiction where the only connection to the forum was that the
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`plaintiff accessed the defendant’s website to make and pay for a hotel reservation in
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`the forum).
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`5
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`Plaintiffs cite Huston v. Hearst Communications, Inc. to support their claim
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`that subscriptions purchased in Illinois are enough to support personal jurisdiction;
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`however, the court in Huston established that “personal jurisdiction also exists over
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`[the defendant] because it conducts substantial business within Illinois and has
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`significant, continuous, and pervasive contacts in Illinois,” through the sale and
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`shipping of physical products to Illinois customers. 2022 WL 385176, at *1 (C.D. Ill.
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`Feb. 7, 2022). That is not true in this case. Plaintiffs’ other authorities are inapposite
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`for the same reason. See, e.g., King v. PeopleNet Corp., No. 21 CV 2774, 2021 WL
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`5006692, at *6 (N.D. Ill. Oct. 28, 2021) (defendant shipped devices to Illinois
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`customers for storage of biometric data); Monster Energy Co. v. Wensheng, 136 F.
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`Supp. 3d 897, 905 (N.D. Ill. 2015) (defendants affirmatively created a shipping option
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`on their website to ship counterfeit goods to Illinois); Trio v. Turing Video, Inc., Case
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`No. 1:21-cv-04409, 2022 WL 4466050 (N.D. Ill. Sept. 26, 2022) (defendant executed
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`numerous “purchase orders with Illinois customers for sale and shipment of [COVID-
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`19 screening equipment].”).2
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`Even as replead, the Amended Complaint still fails to establish this Court’s
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`jurisdiction over Wemagine as to Plaintiffs’ BIPA claims. The Amended Complaint
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`must be dismissed for lack of personal jurisdiction. Thus, the Court need not consider
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`whether Plaintiffs failed to state a claim under Fed. R. Civ. P. 12(b)(6).
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`2 Plaintiffs cite to Ronquillo v. Doctor’s Assocs., LLC, 2022 WL 1016600 (N.D. Ill.
`2022) in their supplemental authority. But that case considered a different question:
`whether BIPA could be applied to residents outside Illinois, or whether the claims
`were barred by the extraterritoriality doctrine. Id. at *4. Even so, there, the plaintiff’s
`biometric data was collected and stored on-site in Illinois. Id.
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`Conclusion
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`For the reasons set forth above, Wemagine’s motion to dismiss the Amended
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`Complaint for lack of personal jurisdiction, R. 24, is granted. This dismissal will be
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`without prejudice as to any forum where personal jurisdiction actually exists.
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`ENTERED:
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`__________________________________
`Honorable Thomas M. Durkin
`United States District Judge
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`Dated: October 7, 2022
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