Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION
BRITTNEY MEJICO, )
) Civil Action No. 7:20CV00039 Plaintiff, ) ) MEMORANDUM OPINION
v. )
) By: Hon. Glen E. Conrad ALBA WEB DESIGNS, LLC, ) Senior United States District Judge
)
Defendant. )
Brittney Mejico filed this action against Alba Web Designs, LLC (“Alba”), alleging that Alba’s website violates Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181–12189. The case is presently before the court on Alba’s second motion to dismiss for lack of subject matter jurisdiction and its motion for judgment on the pleadings. For the following reasons, both motions will be denied with respect to Mejico’s claim under the ADA.
Background
The following facts, taken from the amended complaint, are accepted as true for purposes
of the pending motions. See Kenny v. Wilson,
Defendant Alba is a limited liability company based in Blacksburg, Virginia. Am. Compl. ¶ 9, ECF No. 23. The company operates a website, 500labels.com (the “Website”), through which it sells personalized return address labels. Id. ¶¶ 3, 7.
Plaintiff Mejico is a blind resident of California. Id. ¶ 6. Because of her visual impairment, Mejico uses a screen reader to access the internet and read website content. Id. Screen readers assist the blind in accessing websites by vocalizing information on a computer screen. Id. ¶ 12. “Unless websites are designed to be read by screen reading software, blind persons are unable to fully access websites and the information, products and services . . . contained thereon.” Id.
Mejico has attempted to utilize the Website on multiple occasions. Id. ¶ 19. However, “numerous access barriers” have prevented her from fully using the Website and completing a purchase. Id. ¶¶ 19, 21. The barriers include, but are not limited to, the following: (1) empty or missing form labels; (2) missing document language; (3) redundant links; (4) unlabeled edit fields; (5) unlabeled inks; and (6) empty links. Id. ¶ 17. Additionally, the Website “offers an
order form in pdf format that is only partially readable by a screen reader” and must be printed, completed by hand, and mailed to Alba. Id. ¶ 20. Mejico is unable to complete the form without obtaining sighted assistance. Id. According to Mejico, “[t]his causes not only delay . . . on the basis of her disability, but it also causes frustration, embarrassment and disappointment” since it requires her to seek sighted assistance to complete a basic task. Id.
Mejico alleges that she genuinely wants to avail herself of the goods and services offered on the Website for both personal and professional reasons. Id. ¶ 7. Because of her vision impairment, Mejico cannot independently handwrite her address on envelopes. Id. Consequently, she prefers to use printed address labels rather than to wait for a sighted person to assist her. Id. Additionally, as a member of the National Federation of the Blind, Mejico assists with fundraising efforts that regularly require printed labels for group mailings. Id. Mejico alleges that she “could, and would, use Defendant’s Website to aid in these tasks if it were accessible to her.” Id. However, “each time Plaintiff has attempted to access and complete a purchase on Defendant’s Website, she has been unable to because of the accessibility barriers preventing blind users’ full and equal access.” Id.
Mejico also describes herself as a “tester” who visits places to determine whether they comply with the ADA. Id. ¶ 8. Mejico has filed multiple lawsuits against operators of commercial websites, and she “intends to continue to engage in such advocacy work into the foreseeable future to ensure that Defendant’s commercial Website and others are fully and equally enjoyable to and usable by visually-impaired persons, including herself.” Id.
Procedural History
On January 15, 2020, Mejico filed this action against Alba, alleging violations of Title III of the ADA (Count I) and California’s Unruh Civil Rights Act, Cal. Civ. Code §§ 51–52 (Count II). Alba subsequently moved to dismiss the case for lack of subject matter jurisdiction and for judgment on the pleadings. Mejico opposed Alba’s motions and alternatively requested leave to amend her complaint to address the standing issues raised in the motion to dismiss.
On May 12, 2020, the court conducted a hearing on Alba’s motions via teleconference. During the hearing, Mejico once again requested leave to amend her complaint. By order entered May 13, 2020, Mejico was given fourteen days to file an amended complaint. Alba’s motion for judgment on the pleadings was granted as to the state statutory claim asserted in Count II and taken under advisement with respect to the ADA claim asserted in Count I.
On May 26, 2020, Mejico filed an amended complaint against Alba. Mejico claims that “[t]he Website is a public accommodation within the definition of Title III of the ADA” and that it is unlawfully inaccessible to patrons who are visually impaired. Am. Compl. ¶¶ 9, 25. She seeks injunctive relief, in addition to costs and attorneys’ fees.
In response to the amended complaint, Alba filed a second motion to dismiss for lack of subject matter jurisdiction. The case is presently before the court on that motion and the motion for judgment on the pleadings. The motions have been fully briefed and argued and are now ripe for disposition.
Standards of Review
Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to move for
dismissal for lack of subject matter jurisdiction. The United States Court of Appeals for the
Fourth Circuit has explained that defendants may challenge subject matter jurisdiction in one of
two ways: “facially or factually.” Beck v. McDonald,
Rule 12(c) permits a defendant to move for judgment on the pleadings. “The standard of
review for Rule 12(c) motions is the same as that under Rule 12(b)(6).” Drager,
The motion must be denied if the amended complaint “states a plausible claim for relief.” Id.
(quoting Ashcroft v. Iqbal,
Discussion
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). Discrimination is defined to include “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.” [1] Id. § 12182(b)(2)(A)(iii). The applicable regulations define “auxiliary aids and services” to include “screen reader software,” “accessible electronic and information technology,” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” 28 C.F.R. § 36.303(b)(2).
In moving to dismiss the amended complaint for lack of subject matter jurisdiction, Alba argues that Mejico lacks standing to pursue her ADA claim. Alternatively, Alba argues that judgment on the pleadings is appropriate because the Website is not a “place of public accommodation” subject to Title III’s requirements.
I. Motion to Dismiss for Lack of Subject Matter Jurisdiction
The court will first address Alba’s motion to dismiss for lack of subject matter
jurisdiction. Article III of the Constitution limits the jurisdiction of federal courts to certain
“Cases” and “Controversies.” U.S. Const. art. III, § 2. “One element of the case-or-controversy
requirement is that plaintiffs must establish that they have standing to sue.” Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 408 (2013) (internal quotation marks and citations omitted). Thus,
Article III standing is a “subject matter jurisdiction issue.” Beyond Sys., Inc. v. Kraft Foods,
Inc.,
In order to possess standing to sue under Article III, “a plaintiff must sufficiently allege
the three elements identified by the Supreme Court.” Hutton v. Nat’l Bd. of Exam’s in
Optometry, Inc., 892 F.3d 613, 619 (4th Cir. 2018). “That is, a plaintiff must allege that they
have: ‘(1) suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” Id. (quoting
Spokeo, Inc. v. Robins,
“The injury-in-fact requirement ensures that plaintiffs have a ‘personal stake in the
outcome of the controversy.’” Kenny,
When a plaintiff seeks injunctive relief, “there is the additional requirement of a ‘real or
imminent threat’ that the party will suffer an injury in the future.” Griffin v. Dep’t of Labor Fed.
Credit Union, 912 F.3d 649, 653 (4th Cir. 2019) (quoting City of Los Angeles v. Lyons, 461
U.S. 95, 111 (1983)). Thus, Mejico “must establish an ongoing or future injury in fact.” Kenny,
With these principles in mind, the court proceeds to consider whether the amended
complaint satisfies the injury-in-fact requirement. Turning first
to the “concrete and
particularized” prong, the court concludes that Mejico’s allegations are sufficient to withstand
Alba’s motion to dismiss. “To satisfy that standard, a plaintiff may demonstrate an ‘actual’
‘invasion of a legally protected interest’ that ‘affect[s] the plaintiff in a personal and individual
way.’” Nanni v. Aberdeen Marketplace, Inc.,
According to the amended complaint, Mejico, who is permanently blind and relies on a screen reader to access the internet, visited the Website on several occasions between September of 2019 and May of 2020. During those visits, Mejico encountered a number of specific access barriers that prevented her purchasing items from Alba and otherwise denied her equal access to the goods and services available on the Website. By alleging that Mejico visited the Website, attempted to complete a purchase, and “personally encountered . . . barriers to access,” the court is satisfied that the amended complaint “pleads past injuries that are concrete, particularized, and actual,” rather than “conjectural or hypothetical.” Nanni, 878 F.3d at 455 (addressing architectural barriers to accessing a store); see also Daniels, 477 F. App’x at 129 (holding that the plaintiff’s injury was “‘actual’ and ‘concrete,’ rather than theoretical,” since “he visited the Market and encountered these [structural] difficulties himself”); Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d 1368, 1374 (S.D. Fla. 2018) (noting that the plaintiff “plainly . . . suffered a concrete injury” by “facing barriers to access the Website”); Gniewkowski v. Lettuce Entertain You Enters., Inc., 251 F. Supp. 3d 908, 913–14 (W.D. Pa. 2017) (finding that “because [Defendant’s] website barred Plaintiffs’ screen reader software from reading the content of its website, Plaintiffs were unable to conduct on-line research to compare financial services and products” and therefore suffered “an injury-in-fact under Article III of the ADA”).
Contrary to Alba’s assertions, Mejico need not have purchased a product in the past to
have standing to sue under Title III’s general prohibition of discrimination. See PGA Tour, Inc.
v. Martin, 532 U.S. 661, 679 (2001) (noting that “Title III’s broad general rule contains no
express ‘clients or customers’ limitation”); Houston v. Marod Supermarkets, Inc.,
Because Mejico seeks injunctive relief, she “cannot rely solely on past injuries” to
establish standing. Marcavage v. City of New York,
Second, neither Mejico’s role as a “tester” under the ADA nor her litigation history
“strips [her] of standing to sue” Alba. Nanni, 878 F.3d at 457; see also Houston, 733 F.3d at
1332. Although tester status alone is insufficient to confer standing, this is not a case in which
the plaintiff relies solely on her tester status to establish a threat of future injury. See Griffin,
For these reasons, the court concludes that Mejico has sufficiently established at this stage of the proceedings that she has standing to sue. Accordingly, Alba’s motion to dismiss under Rule 12(b)(1) will be denied.
II. Motion for Judgment on the Pleadings
“To prevail under Title III of the ADA, a plaintiff must show that: (1) [s]he is disabled within the meaning of the ADA; (2) the defendant owns, leases, or operates a place of public accommodation; and (3) the defendant discriminated against [her] because of [her] disability.” J.D. v. Colonial Williamsburg Found., 925 F.3d 663, 669–70 (4th Cir. 2019). In moving for judgment on the pleadings, Alba focuses exclusively on the second element, arguing that the Website is not a “place of public accommodation” subject to Title III. 42 U.S.C. § 12182(a).
As indicated above, Title III prohibits discrimination “on the basis of disability in the full
and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations
of any place of public accommodation” by the owner, lessee, or operator of such a place. Id.
“The phrase ‘public accommodation’ is defined in terms of 12 extensive categories,” PGA Tour,
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; [or] (F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment[.]
42 U.S.C. § 12181(7). [3]
For purposes of the pending motion, it is undisputed that Alba does not operate a brick- and-mortar store that is open to the public. Instead, Alba sells its good and services through the Website. The issue presented—whether a website itself can constitute a place of public accommodation—has not been addressed by the Fourth Circuit. Other circuit courts have reached differing conclusions regarding the scope of entities subject to Title III.
Based on the types of establishments listed in § 12181(7), the Third, Sixth, and Ninth
Circuits have concluded that the term “place of public accommodation” requires “some
connection between the good or service complained of and an actual physical place.” Weyer v.
Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); see also Ford v.
Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998) (finding that the term “public
accommodation” does not refer to non-physical access); Parker v. Metro Life Ins. Co., 121 F.3d
1006, 1014 (6th Cir. 1997) (holding that “a public accommodation is a physical place”). In
contrast, the First Circuit has held that the phrase “public accommodation” “is not limited to
actual physical structures.” Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New
England, Inc.,
After carefully considering the record, the parties’ arguments, and applicable law, the court is persuaded that places of “public accommodation” are not limited to physical, brick-and- mortar establishments and instead include commercial websites that offer good and services. Thus, the fact that Alba has no physical location open to the public is not dispositive and its motion for judgment on the pleadings must be denied.
In reaching this decision, the court agrees with the First Circuit that “the terms [used in
§ 12187(7)] do not require ‘public accommodations’ to have physical structures for persons to
enter.” Carparts,
Id.
The First Circuit’s reasoning applies with equal—if not greater—force in the modern
world of e-commerce. As other courts have recently noted, “we shop in virtual marketplaces for
everything from luxuries to necessities,” and “we now rely even more on online shopping in the
recent pandemic.” Lebamoff Enters. Inc. v. Whitmer, 956 F.3d 863, 875, 878 (6th Cir. 2020)
(McKeague, J., concurring); see also McMillan v. Amazon.com, 983 F.3d 194, 196 (5th Cir.
2020) (observing that the “migration of consumer spending online, further compounded by the
COVID-19 pandemic, has enabled [Amazon] to make many traditional retailers disappear”).
Thus, excluding online retailers and their commercial websites from the reach of Title III “would
‘run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that
individuals with disabilities fully enjoy the goods, services, privileges and advantages, available
indiscriminately to other members of the general public.’” Nat’l Ass’n of the Deaf v. Netflix,
Inc.,
The ADA’s legislative history further supports the court’s conclusion that Title III
extends to web-based goods and service providers. Congressional reports indicate that “[t]he
phrase ‘public accommodation’ . . . ‘should be construed liberally’ to afford people with
disabilities ‘equal access’ to the wide variety of establishments available to the nondisabled.”
PGA Tour,
Finally, the court is unpersuaded by Alba’s contention that “the plain meaning of the
word ‘place’ suggests a physical location.” Def.’s Mem. Supp. Mot. J. Pleadings 5, ECF No. 8.
Adopting such a narrow interpretation would contravene the broad remedial purpose of the ADA
and its legislative history. See, e.g., PGA Tour, 532 U.S. at 675–76 (discussing the ADA’s
“broad mandate,” “comprehensive character,” and “sweeping purpose,” and the legislative
history indicating that Title III should be liberally construed) (internal quotation marks omitted).
It would also conflict with more recent decisions of the Supreme Court. As Mejico notes in her
brief in opposition, the Supreme Court has characterized “cyberspace” as “the most important
place[] for the exchange of views.” Packingham v. North Carolina,
For all of these reasons, the court concludes that places of public accommodation subject to the ADA are not limited to physical, brick-and-mortar establishments and instead include commercial websites that offer good and services to the public. Liberally construing the categories of private establishments listed in Title III, the court is satisfied that the Website qualifies as a “sales or rental establishment” and/or a “service establishment” at this stage of the proceedings. 42 U.S.C. § 12181(7). Therefore, the court concludes that Mejico has sufficiently alleged that Alba owns or operates a place of public accommodation. Accordingly, Alba is not entitled to judgment on the pleadings.
Conclusion
For the reasons stated, the court will deny Alba’s second motion to dismiss for lack of subject matter jurisdiction and its motion for judgment on the pleadings on the ADA claim.
The Clerk is directed to send copies of this memorandum opinion and the accompanying order to the plaintiff and all counsel of record. 25th
DATED: This _____ day of January, 2021.
_______________________________ Senior United States District Judge
Notes
[1] Covered entities are not required to provide auxiliary aids and services if compliance would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” 42 U.S.C. § 12182(b)(2)(A)(iii). At this stage of the proceedings, Alba does not argue that making the Website accessible to blind people would be an undue burden or fundamentally alter the nature of the Website or its offerings.
[2] This case is clearly distinguishable from Griffin v. Dep’t of Labor Fed. Credit Union, in which the Fourth
Circuit found that the plaintiff had not demonstrated a plausible intent to return to the defendant credit union’s
website.
[3] The term “place” is not defined in Title III.
[4] Even if the legislative history had not provided significant guidance regarding Congress’s intent, the
Supreme Court has emphasized there is no “such thing as a ‘canon of donut holes,’ in which Congress’s failure to
speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead,
when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.” Bostock v.
Clayton Cnty.,