`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF ILLINOIS
`
`
`
`
`
`
`
`
`
`
` Case No. 3:20-CV-31-NJR
`
`
`
`CHRISTINE MCGOVERAN,
`JOSEPH VALENTINE, and
`AMELIA RODRIGUEZ, on behalf of
`themselves and all other persons
`similarly situated,
`
` Plaintiffs,
`
`v.
`
`AMAZON WEB SERVICES, INC. and
`PINDROP SECURITY, INC.,
`
` Defendants.
`
`
`MEMORANDUM AND ORDER
`
`
`ROSENSTENGEL, Chief Judge:
`
`
`
`This matter is before the Court on the motions to dismiss filed by Defendants
`
`Pindrop Security, Inc. (Doc. 35) and Amazon Web Services, Inc. (Doc. 49). Defendants
`
`seek to dismiss the case for lack of personal jurisdiction under Federal Rule of Civil
`
`Procedure 12(b)(2). Alternatively, they move for dismissal under Rule 12(b)(6) for failure
`
`to state a claim. For the following reasons, this action is dismissed for lack of personal
`
`jurisdiction.
`
`BACKGROUND
`
`
`
`On December 17, 2019, Plaintiffs Christine McGoveran, Joseph Valentine, and
`
`Amelia Rodriguez filed a putative Class Action Complaint against Defendants Amazon
`
`Web Services, Inc. (“AWS”), and Pindrop Security, Inc. (“Pindrop”), in the Circuit Court
`
`for the Third Judicial Circuit in Madison County, Illinois, alleging violations of the
`
`
`
`Page 1 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 2 of 17 Page ID #620
`
`Biometric Information Privacy Act (BIPA), 740 ILL. COMP. STAT. § 14/1, et seq. (Doc. 1-1).
`
`Specifically, Plaintiffs allege Pindrop and AWS violated BIPA by collecting, possessing,
`
`redisclosing, profiting from, and failing to safeguard their biometric identifiers and
`
`biometric information, including their voiceprints (Id. at ¶ 1).
`
`Voiceprinting, also known as voice biometrics, is the use of biological
`
`characteristics—one’s voice—to verify an individual’s identity without requiring the use
`
`of a passcode or answers to secret questions (Id. at ¶¶ 33-35). Unlike a traditional
`
`passcode, however, in the event of a data breach there is nothing the individual can do to
`
`prevent someone from using his or her voiceprint to gain access to a compromised
`
`account (Id. at ¶ 36).
`
`Plaintiffs allege Pindrop offers voiceprint services for use by call centers and
`
`customer service personnel to confirm the identity of callers (Id. at ¶¶ 38-39). Pindrop
`
`does this through its “Deep Voice” product, which uses biometrics to identify and
`
`analyze repeat callers (Id. at ¶ 42). Similarly, Pindrop’s “Phoneprinting” product analyzes
`
`call audio to create a distinctive identifier for each caller (Id.).
`
`AWS offers cloud storage services, including the ability for customers to store their
`
`data, access data remotely, and create backup copies of data (Id. at ¶ 45). AWS also offers
`
`call center services under the brand “Amazon Connect” (Id. at ¶ 46). In connection with
`
`Amazon Connect, AWS possesses and stores a variety of types of customer data,
`
`including biometric identifiers and information (Id. at ¶¶ 48-49).
`
`Pindrop was one of the first partners with AWS in launching Amazon Connect (Id.
`
`at ¶ 52). Plaintiffs allege that after an individual places a call to an AWS client’s call center,
`
`
`
`Page 2 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 3 of 17 Page ID #621
`
`the audio is sent to Pindrop for processing (Id. at ¶¶ 57-59; Doc. 57 at p. 8). Pindrop then
`
`processes the audio, analyzes the caller’s unique voice biometric data, and sends the
`
`results of its analysis to AWS’s servers (Id. at ¶¶ 58-59; Doc. 57 at p. 8). Plaintiffs claim
`
`that once this process occurs, AWS then possesses “biometric information” as defined by
`
`BIPA (Id. at. ¶ 60).
`
`With regard to the named Plaintiffs, the Complaint alleges that they called John
`
`Hancock customer service representatives or call centers on numerous occasions
`
`regarding investment or insurance products (Id. at ¶¶ 67-70; Doc. 57 at p. 9). Plaintiffs
`
`were residents of Illinois, located in Illinois, and used Illinois phone numbers to call John
`
`Hancock (Docs. 57-2; 57-3; 57-4). John Hancock’s call centers use Amazon Connect with
`
`Pindrop biometric voiceprint authentication; as a result, they no longer require customers
`
`to have a pin number for authentication (Id. at ¶¶ 71-72). Plaintiffs allege that AWS and
`
`Pindrop apply their voice biometric technology to every caller to John Hancock’s call
`
`centers (Id. at ¶ 73).
`
`Plaintiffs’ Complaint asserts five counts of BIPA violations, 740 ILL. COMP. STAT.
`
`§ 14/15(a)-(e). In Count I, Plaintiffs claim that Defendants violated BIPA section 14/15(a)
`
`by possessing Plaintiffs’ and Class members’ biometric information, including
`
`voiceprints and related biometric information, without creating and following a written
`
`policy, made available to the public, establishing and following a retention schedule and
`
`destruction guidelines for their possession of biometric identifiers and information (Id. at
`
`¶ 90). In Count II, Plaintiffs assert Defendants violated BIPA section 14/15(b) by failing
`
`to inform John Hancock’s Illinois callers that their biometric information is being
`
`
`
`Page 3 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 4 of 17 Page ID #622
`
`collected and stored and by not obtaining any form of consent (Id. at ¶¶ 94-95). In Count
`
`III, Plaintiffs allege that Defendants violated BIPA section 14/15(c) by profiting from the
`
`possession of their biometric information, including their voiceprints (Id. at ¶ 102). Count
`
`IV alleges Defendants violated BIPA section 14/15(d) when they disclosed, redisclosed,
`
`and disseminated their biometric information, including voiceprints, without consent (Id.
`
`at ¶ 107). Finally, Plaintiffs claim Defendants violated BIPA section 14/15(e) by failing to
`
`use reasonable care in storing, transmitting, and protecting the biometric information
`
`from disclosure, or by failing to do so in a manner the same as or more protective than
`
`the manner in which Defendants store, transmit, and protect other confidential and
`
`sensitive information (Id. at ¶¶ 112-13).
`
`Plaintiffs seek to represent a class consisting of:
`
`All Illinois citizens who placed one or more phone calls to, or received one
`or more phone calls from, an entity using Amazon Connect and Pindrop’s
`voice authentication and/or fraud detection technology, from December
`17, 2014 until present.
`
`
`(Id. at ¶ 81).
`
`On behalf of themselves and the putative class, Plaintiffs seek an order enjoining
`
`Defendants from further violating BIPA, actual damages, statutory damages of $5,000 for
`
`each intentional and reckless violation of BIPA pursuant to 740 ILL. COMP. STAT. 14/20(2),
`
`or statutory damages of $1,000 for each negligent violation of BIPA pursuant to 740 ILL.
`
`COMP. STAT. 14/20(1), attorneys’ fees and costs, and pre- and post-judgment interest. 740
`
`ILL. COMP. STAT. 14/20(3). (Id. at pp. 26-27).
`
`
`
`Page 4 of 17
`
`
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 5 of 17 Page ID #623
`
`SUBJECT MATTER JURISDICTION
`
`On January 8, 2020, Defendants removed the action to this Court under the Class
`
`Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2) (Doc. 1). CAFA extends federal
`
`jurisdiction over class actions where: (1) any member of the proposed class is a citizen of
`
`a state different from any defendant (i.e., minimal diversity exists); (2) the proposed class
`
`consists of more than 100 members; and (3) the amount in controversy is $5,000,000 or
`
`more, aggregating all claims and exclusive of interest and costs. See 28 U.S.C.
`
`§§ 1332(d)(2), 1332(d)(5)(B).
`
`Here, the proposed class consists of more than 100 members, as Plaintiffs allege
`
`that the putative class includes “thousands of people.” (Doc. 1-1 at ¶ 82). There also is
`
`minimal diversity of citizenship between the parties. Plaintiffs are citizens of Illinois,
`
`AWS is a Delaware corporation with its principal place of business in Washington, and
`
`Pindrop is a Delaware corporation with its principal place of business in Georgia (Docs. 1,
`
`8). Finally, CAFA’s amount in controversy requirement is satisfied. At a minimum,
`
`Plaintiffs allege statutory damages of $1,000 for each negligent violation of BIPA
`
`pursuant to 740 ILL. COMP. STAT. 14/20(1). Plaintiffs then allege at least five separate BIPA
`
`violations in Count I-V and have asserted there are thousands of class members. Even
`
`assuming a class size of only 1,000, the Complaint alleges damages of at least $5,000,000.
`
`And when considering attorneys’ fees and potential statutory damages of $5,000 for each
`
`intentional and reckless violation of BIPA, the amount in controversy well exceeds the
`
`required threshold.
`
`
`
`
`
`Page 5 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 6 of 17 Page ID #624
`
`A.
`
`Federal Rule of Civil Procedure 12(b)(2)
`
`LEGAL STANDARDS
`
`When personal jurisdiction is challenged under Federal Rule of Civil Procedure
`
`12(b)(2), the plaintiff bears the burden of establishing personal jurisdiction over a
`
`defendant. Matlin v. Spin Master Corp., 921 F.3d 701, 705 (7th Cir. 2019); Purdue Research
`
`Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). If there are material facts
`
`in dispute regarding the Court’s jurisdiction, the Court must hold an evidentiary hearing
`
`at which the plaintiff must establish jurisdiction by a preponderance of the evidence.
`
`Purdue Research, 338 F.3d at 782 (citing Hyatt Int’l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir.
`
`2002)). Alternatively, the Court may decide the motion to dismiss without a hearing
`
`based on the submitted written materials so long as it resolves all factual disputes in the
`
`plaintiff’s favor. Purdue Research, 338 F.3d at 782 (citing RAR, Inc. v. Turner Diesel, Ltd.,
`
`107 F.3d 1272, 1276 (7th Cir. 1997)); see uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 423-
`
`24 (7th Cir. 2010). If the Court consults only the written materials, the plaintiff need only
`
`make a prima facie showing of personal jurisdiction. Matlin, 921 F.3d at 701; Purdue
`
`Research, 338 F.3d at 782 (citing Hyatt, 302 F.3d at 713).
`
`B.
`
`Federal Rule of Civil Procedure 12(b)(6)
`
`A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to
`
`“test the sufficiency of the complaint, not to decide the merits” of the case. Gibson v. City
`
`of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). To survive a Rule 12(b)(6)
`
`motion to dismiss, the plaintiff only needs to allege enough facts to state a claim for relief
`
`that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff
`
`
`
`Page 6 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 7 of 17 Page ID #625
`
`need not plead detailed factual allegations, but must provide “more than labels and
`
`conclusions, and a formulaic recitation of the elements.” Id. For purposes of a motion to
`
`dismiss under Rule 12(b)(6), the Court must accept all well-pleaded facts as true and draw
`
`all possible inferences in favor of the plaintiff. McReynolds v. Merrill Lynch & Co., Inc., 694
`
`F.3d 873, 879 (7th Cir. 2012). Taken together, the factual allegations contained within a
`
`complaint must “raise a right to relief above the speculative level, on the assumption that
`
`all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S.
`
`at 555 (internal citations omitted).
`
`DISCUSSION
`
`The Court first addresses Defendants’ motions to dismiss for lack of personal
`
`jurisdiction, for if the Court lacks jurisdiction, it cannot reach the motion to dismiss under
`
`Rule 12(b)(6). See Norberg v. Shutterfly, Inc., 152 F. Supp. 3d 1103, 1104 (N.D. Ill. 2015). Both
`
`AWS and Pindrop contend the Class Action Complaint should be dismissed because
`
`Plaintiffs have failed to meet their burden of making a prima facie showing of personal
`
`jurisdiction.
`
`“As a procedural matter, federal courts look to state law in determining the
`
`bounds of their jurisdiction over a party.” Brook v. McCormley, 873 F.3d 549, 552 (7th Cir.
`
`2017) (citing FED. R. CIV. P. 4(k)(1)(A)). Because the Illinois long-arm statute permits a
`
`court to exercise jurisdiction to the full extent permitted by the Due Process Clause of the
`
`Fourteenth Amendment, the state statutory and federal constitutional requirements
`
`merge. Id. (citing Tamburo v. Dworkin, 601 F.3d 693, 700 (7th Cir. 2010)).
`
`“The Due Process Clause of the Fourteenth Amendment limits the power of a court
`
`
`
`Page 7 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 8 of 17 Page ID #626
`
`to render a judgment over nonresident defendants.” Id. at 552 (citing World-Wide
`
`Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Thus,
`
`personal jurisdiction is only proper if a defendant has sufficient minimum contacts with
`
`the forum state “such that the maintenance of the suit does not offend traditional notions
`
`of fair play and substantial justice.” Id. While the defendant’s physical presence in the
`
`forum State is not required, there must be sufficient minimum contacts such that he or
`
`she “should reasonably anticipate being haled into court there.” Id. (quoting Burger King
`
`Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Personal
`
`jurisdiction can be established through general or specific jurisdiction.
`
`General jurisdiction, or “all-purpose” jurisdiction, allows a court to hear any and
`
`all claims against foreign corporations when their “affiliations with the State [in which
`
`suit is brought] are so ‘continuous and systematic’ as to render them essentially at home
`
`in the forum State.” Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S. Ct. 746, 754, 187 L. Ed.
`
`2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S.Ct. 2846, 2851
`
`(2011)). Determining whether a corporation is “at home” in a particular state “calls for an
`
`appraisal of a corporation’s activities in their entirety, nationwide and worldwide”
`
`because “[a] corporation that operates in many places can scarcely be deemed at home in
`
`all of them.” Id. at 762 n. 20. Indeed, the Supreme Court has identified only two places
`
`where a corporation is “at home”: the state of the corporation’s principal place of business
`
`and the state of its incorporation. Daimler, 571 U.S. at 137.
`
`“Specific” or “case-linked” jurisdiction requires an affiliation between the forum
`
`and the underlying controversy—that is, “an activity or an occurrence that takes place in
`
`
`
`Page 8 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 9 of 17 Page ID #627
`
`the forum State and is therefore subject to the State’s regulation.” Goodyear, 131 S.Ct. at
`
`2851; Brook, 873 F.3d at 552 (“Specific jurisdiction requires a defendant’s contacts with the
`
`forum State to be directly related to the conduct pertaining to the claims asserted.”).
`
`Specific jurisdiction arises where an out-of-state “defendant has ‘purposefully directed’
`
`his activities at residents of the forum, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774
`
`(1984), and the litigation results from alleged injuries that ‘arise out of or relate to those
`
`activities’ Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984).” Burger
`
`King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 (1985).
`
`“The inquiry whether a forum State may assert specific jurisdiction over a
`
`nonresident defendant focuses on the relationship among the defendant, the forum, and
`
`the litigation.” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (quotation omitted). “The mere
`
`fact that a defendant’s conduct affects a plaintiff with connections to the forum State is
`
`not sufficient to establish jurisdiction.” Id. Rather, the out-of-state defendant must
`
`purposefully direct its activities at residents of the forum, and the litigation must “arise
`
`out of contacts that the ‘defendant himself’ creates with the forum state.” Curry v.
`
`Revolution Labs., LLC, 949 F.3d 385, 396 (7th Cir. 2020) (quoting Burger King, 471 U.S. at
`
`475). The defendant’s relationship with the plaintiff or a third party, standing alone, is
`
`insufficient to create the necessary “minimum contacts.” Walden, 134 S. Ct. at 1123.
`
`A.
`
`Consent to Jurisdiction
`
`
`
`Plaintiffs first argue that AWS consented to this Court’s personal jurisdiction when
`
`it asked the Court to compel discovery from Plaintiffs prior to asserting its personal
`
`jurisdiction defense. Specifically, on February 5, 2020, AWS filed a motion to permit
`
`
`
`Page 9 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 10 of 17 Page ID #628
`
`discovery of Plaintiffs’ contact information and to compel discovery necessary to
`
`determine whether it should file a motion to compel arbitration (Doc. 32). AWS sought
`
`basic information, such as Plaintiffs’ email addresses and phone numbers, to determine
`
`whether Plaintiffs had ever agreed to arbitrate as a customer of Amazon or AWS. The
`
`motion was denied (Doc. 46). Plaintiffs argue that this motion to compel discovery
`
`constituted a request for affirmative relief that waived any objection to personal
`
`jurisdiction.
`
`
`
`In response, AWS contends that its motion only sought to compel Plaintiffs to
`
`provide basic contact information, which would be relevant for a “potential motion to
`
`compel arbitration.” AWS notes that it has not served any discovery requests on
`
`Plaintiffs, nor has it sought to compel any merits discovery whatsoever. Rather, it was
`
`merely doing all it could do, as early as possible, to prevent a finding that it waived its
`
`right to arbitrate. See Kawasaki Heavy Indus. v. Bombardier Rec. Prods., 660 F.3d 988, 996 (7th
`
`Cir. 2011).
`
`
`
`“[A] personal jurisdiction defense may be waived if a defendant gives a plaintiff a
`
`reasonable expectation that he will defend the suit on the merits or where he causes the
`
`court to go to some effort that would be wasted if personal jurisdiction is subsequently
`
`found lacking.” Hedeen Int’l, LLC v. Zing Toys, Inc., 811 F.3d 904, 906 (7th Cir. 2016); see
`
`also Mobile Anesthesiologists Chicago, LLC v. Anesthesia Assocs. of Houston Metroplex, P.A.,
`
`623 F.3d 440, 443 (7th Cir. 2010) (defendant’s request for expedited discovery to prepare
`
`for a preliminary injunction hearing did “not come close to what is required for waiver
`
`of forfeiture” of a personal jurisdiction defense). Here, however, AWS gave no indication
`
`
`
`Page 10 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 11 of 17 Page ID #629
`
`that it intended to defend the suit on the merits in this district court. Instead, its motion
`
`to compel discovery of information relevant to arbitration demonstrates the opposite: that
`
`AWS thought this may be the improper venue to decide Plaintiffs’ claims and that it
`
`would not be litigating the merits of the claims in this Court. AWS’s motion also did not
`
`cause the Court to undertake any effort that would be wasted if jurisdiction subsequently
`
`was found lacking. Accordingly, the Court finds that AWS did not waive its personal
`
`jurisdiction defense.
`
`B.
`
`Specific Jurisdiction
`
`
`
`Because Plaintiffs concede that general jurisdiction is lacking, the Court focuses its
`
`analysis on whether Defendants are subject to specific personal jurisdiction in this Court.
`
`Pindrop argues that Plaintiffs have identified no litigation-related contacts
`
`between Pindrop and Illinois that suffice to establish specific personal jurisdiction. First,
`
`the fact that it is registered to do business in Illinois is irrelevant and fails to establish
`
`personal jurisdiction. Second, the Complaint does not allege any acts Pindrop committed
`
`in Illinois, let alone any acts committed in violation of BIPA. And finally, while Plaintiffs
`
`themselves reside in Illinois, “[t]he mere fact that a defendant’s conduct affects a plaintiff
`
`with connections to the forum State is not sufficient to establish jurisdiction.” Walden, 134
`
`S. Ct. at 121.
`
`In support of its motion to dismiss, Pindrop provided an affidavit from its Chief
`
`Financial Officer, Jeff Hodges, who attested that Pindrop is incorporated in Delaware,
`
`and its headquarters and principal place of business are in Atlanta, Georgia (Doc. 35-1 at
`
`¶ 5). Pindrop does not own, lease, or operate any office, facility, or computer servers in
`
`
`
`Page 11 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 12 of 17 Page ID #630
`
`the State of Illinois (Id. at ¶ 7-8). It also does not operate or integrate with AWS or Amazon
`
`Connect in the State of Illinois (Id. at ¶9). While it employs three individuals who reside
`
`in Illinois, those individuals’ responsibilities do not involve or relate to any conduct
`
`described in the Complaint (Id. at ¶¶ 12-13).
`
`AWS also asserts specific personal jurisdiction is lacking because Plaintiffs have
`
`not alleged AWS engaged in any conduct in Illinois that is connected to Plaintiffs’ claims.
`
`At most, it argues, Plaintiffs claim that non-party John Hancock directed its conduct at
`
`Illinois, and that AWS is a vendor used by that third party. Because specific jurisdiction
`
`cannot be established thorough a third party’s contacts with the forum state, AWS should
`
`be dismissed for lack of jurisdiction. AWS also points to the fact that its data centers are
`
`located in Virginia, Ohio, California, and Oregon—not Illinois.
`
`In response, Plaintiffs contend both Pindrop and AWS are subject to personal
`
`jurisdiction in Illinois because they collected, possessed, and used the voiceprints of
`
`Illinois citizens who placed calls from within Illinois and from Illinois phone numbers
`
`(Docs. 57, 62). They argue there can be no dispute that “Illinois courts have personal
`
`jurisdiction over nonresidents that reach into Illinois through phone or electronic means
`
`and commit intentional torts against Illinois residents,” as Defendants did here (Id.). They
`
`further aver that when intentional and tortious conduct takes place during telephone
`
`communications involving a resident of the forum state and a phone number from the
`
`forum state, courts have found the non-resident defendant expressly aimed its conduct
`
`at the forum state with knowledge of its effect in the forum state.
`
`In both cases cited by Plaintiffs, however, the defendant resisting jurisdiction was
`
`
`
`Page 12 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 13 of 17 Page ID #631
`
`the one that “reached into” the state to contact the plaintiff. See Felland v. Clifton, 682 F.3d
`
`665, 670 (7th Cir. 2012) (defendant’s “repeated communications” to plaintiff’s Wisconsin
`
`home “were part of a deliberate attempt to lull him into a false sense of security and to
`
`induce him” into making installment payments); Johnson v. Levine, No. 09-CV-0994-MJR-
`
`DGW, 2010 WL 11565552, at *3 (S.D. Ill. Sept. 17, 2010) (defendant called plaintiff’s Illinois
`
`phone number, with the knowledge that plaintiff resided in Illinois, then made material
`
`misrepresentations that induced plaintiff to take certain actions). In this case, Plaintiffs
`
`were the ones who made the call—to John Hancock—from their Illinois phone numbers.
`
`AWS then intercepted the calls once they were connected to an Amazon Connect call
`
`center and sent the audio to Pindrop for processing. The output from that processing was
`
`then returned to AWS’s servers (Doc. 1-1 at ¶ 59). Nothing about this process occurred in
`
`Illinois except for the initial dialing of the phone by Plaintiffs.
`
`Moreover, there is no indication that either of these companies purposefully
`
`directed their activities at Illinois citizens or that this litigation arises from contacts they
`
`created with Illinois. Rather, the litigation arises because John Hancock, a third party
`
`based in Massachusetts, contracted with AWS and Pindrop to analyze the voices of its
`
`customers. The fact that Plaintiffs called John Hancock from Illinois using their own
`
`Illinois phone numbers is insufficient to confer specific personal jurisdiction over the
`
`foreign Defendants. See Salkauskaite v. Sephora USA, Inc., No. 18-CV-08507, 2020 WL
`
`2796122, at *4 (N.D. Ill. May 30, 2020) (the contacts must come from the activity of the
`
`defendant, not the activity of the plaintiff or a third party).
`
`Furthermore, according to the Complaint, AWS and Pindrop apply their voice
`
`
`
`Page 13 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 14 of 17 Page ID #632
`
`biometric technology to every caller to John Hancock’s call centers—not just those calls
`
`initiated by Illinois residents (Doc. 1-1 at ¶ 73). The Court cannot say, then, that
`
`Defendants purposefully availed themselves of the privilege of conducting business in
`
`Illinois or directed their activities at residents of Illinois. See Gullen v. Facebook.com, Inc.,
`
`No. 15 C 7681, 2016 WL 245910, at *2 (N.D. Ill. Jan. 21, 2016) (“Because plaintiff does not
`
`allege that Facebook targets its alleged biometric collection activities at Illinois residents,
`
`the fact that its site is accessible to Illinois residents does not confer specific jurisdiction
`
`over Facebook.”).
`
`Since filing their briefs, both Plaintiffs and Pindrop filed motions for leave to
`
`submit supplemental authority. 1 Pindrop asks the Court to consider Salkauskaite v.
`
`Sephora USA, Inc., No. 18-cv-08507, 2020 WL 2796122 (N.D. Ill. May 30, 2020), in which
`
`the plaintiff alleged that technology provided by non-resident defendant ModiFace, Inc.,
`
`was used by defendant Sephora to collect plaintiff’s biometric facial-geometry
`
`information at a Sephora store in Illinois. The Northern District of Illinois held that
`
`personal jurisdiction was lacking when there was no evidence ModiFace purposefully
`
`aimed its conduct at Illinois. Salkauskaite, 2020 WL 2796122, at *5. Rather, the use of the
`
`technology in Illinois was, at most, a fortuitous or attenuated contact that was the result
`
`of actions by Sephora, not ModiFace itself. Id.
`
`Pindrop likens that factual situation to the events at issue here, in that its contacts
`
`with Illinois, at most, resulted from the decision by third party John Hancock to use
`
`1 Both motions for leave to provide supplemental authority (Docs. 60, 64) are GRANTED.
`Page 14 of 17
`
`
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 15 of 17 Page ID #633
`
`Pindrop’s technology in its call centers. Plaintiffs disagree, arguing that Salkauskaite is
`
`distinguishable because Pindrop “knowingly and purposefully intercepted phone calls
`
`from Illinois residents and phone numbers to collect, possess, and profit from Illinois
`
`residents’ voiceprints” and it is “well established that Illinois has jurisdiction over non-
`
`residents, such as Pindrop, who virtually reach into the state via telephonic or electronic
`
`means to commit intentional torts.”
`
`Here, however, there is no indication that Pindrop ever reached into Illinois via
`
`telephonic or electronic means to commit an intentional tort. It was Plaintiffs who made
`
`outgoing calls from Illinois to John Hancock call centers. The calls were then intercepted
`
`by AWS, which sent the audio to Pindrop for analysis outside of Illinois. (See Doc. 35-1 at
`
`¶¶ 7-8).
`
`Plaintiffs also ask the Court to consider Mutnick v. Clearview AI, Inc., No. 20-0512,
`
`2020 WL 4676667 (N.D. Ill. Aug. 12, 2020), as supplemental authority demonstrating this
`
`Court has jurisdiction over Defendants. In Mutnick, the plaintiffs alleged the defendants
`
`scraped over three billion facial images from the internet and scanned the facial images’
`
`biometric identifiers and information. Mutnick, 2020 WL 4676667, at *1. Defendants then
`
`built a searchable database of the scanned images, which would enable users to identify
`
`individuals by simply using a photograph. Id. The images contained in the databases
`
`“were uploaded and created using internet-based platforms and websites from
`
`companies in Illinois or companies who operate servers in Illinois.” Id. Defendants sold
`
`access to the facial recognition database to numerous Illinois law enforcement and
`
`government agencies, as well as federal law enforcement agencies located in Illinois. Id.
`
`
`
`Page 15 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 16 of 17 Page ID #634
`
`Through those hundreds of agreements, defendants sold, disclosed, obtained, and
`
`profited from the biometric identifiers of Illinois citizens. Id. at *2. Despite this evidence,
`
`Defendants argued that personal jurisdiction was lacking because they never targeted
`
`businesses in Illinois and never traveled to Illinois. Id. The court rejected this argument,
`
`noting that physical presence is not necessary for a defendant to have sufficient minimum
`
`contacts with a forum state. Id.
`
`Defendants do not oppose the Court’s consideration of Mutnick, but argue the case
`
`further supports their arguments that jurisdiction is lacking here (Doc. 65). First, they
`
`argue, the defendants in Mutnick directly aimed their conduct at Illinois plaintiffs when
`
`they took facial images from internet-based platforms and websites from companies in
`
`Illinois or companies who operate servers in Illinois (Id.). They did not use a third party’s
`
`contacts with Illinois to establish personal jurisdiction. Second, the defendants in Mutnick
`
`sold access to their database to Illinois law enforcement and government agencies in
`
`Illinois, thus directly profiting from use of the database in Illinois in violation of BIPA. In
`
`this case, however, Plaintiffs allege Defendants profited from their voiceprints in
`
`violation of Section 15(c) of BIPA through their commercial relationship with John
`
`Hancock, a Massachusetts-based company.
`
`The Court agrees with Defendants. Unlike the defendants in Mutnick, there is no
`
`indication that either AWS or Pindrop specifically targeted Illinois citizens when they
`
`provided their voiceprinting services to John Hancock. Rather, Plaintiffs’ voiceprints
`
`were collected because John Hancock chose to use Amazon Connect with Pindrop to
`
`analyze the voices of its customers. Because the litigation does not arise from contacts
`
`
`
`Page 16 of 17
`
`
`
`Case 3:20-cv-00031-NJR Document 67 Filed 09/18/20 Page 17 of 17 Page ID #635
`
`that Defendants themselves created with Illinois or actions purposefully directed at
`
`residents of Illinois, the Court finds that Plaintiffs have failed to make a prima facie
`
`showing of specific personal jurisdiction with regard to both Pindrop and AWS.
`
`Accordingly, the case must be dismissed for lack of personal jurisdiction.
`
`CONCLUSION
`
`
`
`For these reasons, the motions to dismiss under Federal Rule of Civil Procedure
`
`12(b)(2) for lack of personal jurisdiction filed by Defendants Pindrop Security, Inc.
`
`(Doc. 35) and Amazon Web Services, Inc. (Doc. 49) are GRANTED. Plaintiffs’ individual
`
`claims against Defendants are DISMISSED without prejudice.
`
`IT IS SO ORDERED.
`
`DATED: September 18, 2020
`
`____________________________
`NANCY J. ROSENSTENGEL
`Chief U.S. District Judge
`
`Page 17 of 17
`
`
`
`
`
`
`
`
`
`
`
`
`