STEPHAN NAMISNAK; FRANCIS FALLS, Plaintiffs-Appellees, v. UBER TECHNOLOGIES, INC.; RASIER, LLC, Defendants-Appellants.
No. 18-15860
United States Court of Appeals for the Ninth Circuit
August 24, 2020
D.C. No. 3:17-cv-06124-RS
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
STEPHAN NAMISNAK; FRANCIS FALLS, Plaintiffs-Appellees,
v.
UBER TECHNOLOGIES, INC.; RASIER, LLC, Defendants-Appellants.
No. 18-15860
D.C. No. 3:17-cv-06124-RS
OPINION
Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding
Argued and Submitted May 14, 2020 San Francisco, California
Filed August 24, 2020
Before: J. Clifford Wallace and Ryan D. Nelson, Circuit Judges, and Frederic Block,* District Judge.
Opinion by Judge R. Nelson
NAMISNAK V. UBER TECHNOLOGIES
SUMMARY**
Arbitration
The panel affirmed the district court‘s order denying in part the motion of defendant Uber Technologies, Inc., to compel arbitration of claims brought under the
Plaintiffs sued Uber for not providing a wheelchair-accessible ride-sharing option, known as “uberWAV,” in their hometown of New Orleans. Two plaintiffs never downloaded the Uber App and therefore did not sign Uber‘s arbitration agreement, included in its Terms and Conditions, before filing suit.
The panel held that plaintiffs plausibly alleged sufficient facts to establish
The panel further held that, under
COUNSEL
Bryan Killian (argued) and Stephanie Schuster, Morgan Lewis & Bockius LLP, Washington, D.C.; Anne Marie Estevez, Morgan Lewis & Bockius LLP, Miami, Florida; for Defendants-Appellants.
Karla Gilbride (argued), Public Justice P.C., Washington, D.C.; Garret DeReus, Bizer & Dereus LLC, New Orleans, Louisiana; William Most, Aqua Terra Aeris Law Group, Albany, California; for Plaintiffs-Appellees.
R. NELSON, Circuit Judge:
Plaintiffs Stephen Namisnak and Francis Falls (“Plaintiffs“) sued Uber Technologies, Inc. (“Uber“) under the
I
Uber is a technology company that creates smartphone applications. One of those applications is called the Uber App, which connects those looking for a ride with drivers looking to provide rides. To take advantage of this service, riders must download the Uber App on their smartphones. Before using the Uber App, they must also agree to Uber‘s Terms and Conditions, which include an arbitration agreement.
Signing the arbitration agreement allows riders access to the Uber App and the ability to hail drivers to give them rides to their desired location. Depending on the location, various types of rides are available. Many riders use “UberX,” which is a ride in a sedan. Others choose “Uber Black,” which is a ride in a luxury sedan. Still others elect to use “UberXL,” which provides rides for larger groups, including families. Finally, in at least San Francisco, Portland, and Washington D.C., riders can use uberWAV, which provides rides to those in need of wheelchair-accessible vehicles, or WAVs.
Plaintiffs Namisnak and Falls would like to use the uberWAV option due to their disabilities. Namisnak has muscular dystrophy. Falls is paraplegic following a spinal cord injury. But neither Plaintiff can use the uberWAV service because it is not available in New Orleans, where they live. So they never downloaded the Uber App or tried to hail an uberWAV ride. Instead, they filed suit under the
In the operative complaint, Plaintiffs alleged that they could not “successfully use Uber‘s services because Uber does not offer a button, option, or icon in the Uber App for the New Orleans market which would allow a wheelchair user to summon a van-equipped vehicle.” They further alleged that they were “presently aware that if they tried to install and use the Uber Application that they would experience serious difficulty” due to Uber‘s failure to provide an accommodating service. Finally, they alleged that they “plan to and will attempt to use the Uber Application and Uber‘s programs, services, and accommodations in the future as patrons should those programs, services, and accommodations become wheelchair-accessible.”
Uber moved to compel Plaintiffs—as well as a third plaintiff who had downloaded the Uber App and signed Uber‘s arbitration agreement—to arbitrate their claims. The district court granted the motion in part and denied it in part. According to the district court, the third plaintiff was required to arbitrate his claims because he signed Uber‘s Terms and Conditions—including the arbitration agreement—when he downloaded the Uber App. But the same was not true for Falls and Namisnak. They had not downloaded the Uber App or signed the arbitration agreement, so they could not be bound by it. Nor could they, according to the district court, be equitably estopped from avoiding arbitration because their claims were not intertwined with or reliant on Uber‘s Terms and Conditions as required under
Uber argues for the first time on appeal that Plaintiffs have not plausibly alleged sufficient facts to establish each element of the standing inquiry. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To establish standing, a plaintiff must demonstrate (1) a concrete and particularized injury that is actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the defendant‘s challenged conduct; and (3) a likelihood that a favorable decision will redress that injury.” Nat‘l Family Farm Coalition v. EPA, — F.3d —, 2020 WL 4197528, at *6 (9th Cir. 2020) (quoting Pyramid Lake Paiute Tribe of Indians v. Nev., Dep‘t of Wildlife, 724 F.3d 1181, 1187 (9th Cir. 2013)). “For purposes of ruling on a motion to dismiss for want of standing, both trial and reviewing courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). In applying this standard, we must determine whether the plaintiffs have “clearly allege[d] facts demonstrating each element” of standing. Spokeo v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal quotation marks and alterations omitted). Plaintiffs have met that standard here.
A
The first element of the
We have since applied this doctrine in several cases. In Civil Rights Education, for example, wheelchair-bound hotel patrons who did not visit the hotels they were suing nonetheless satisfied injury-in-fact under the “deterrent effect doctrine” because they knew that the hotels did not provide a “shuttle service for mobility-impaired people” and intended “to visit the relevant hotels” once the hotels’
This case is no different. Plaintiffs allege they are aware Uber does not offer uberWAV in New Orleans; that they cannot use the Uber App because of its failure
Uber‘s arguments to the contrary are unpersuasive. First, Uber argues that downloading the Uber App and creating an account is not “humiliating” and therefore cannot meet what it calls the “humiliating-yet-futile” standard. No such standard exists in our caselaw. In our Circuit, the proper question is whether Plaintiffs have actual knowledge of and are deterred by allegedly illegal barriers to access. See Civil Rights Educ., 867 F.3d at 1098; Pickern, 293 F.3d at 1137-38. Plaintiffs have satisfied that standard here.
Second, Uber argues Plaintiffs have not plausibly alleged injury in fact because there may be other reasons they were deterred. For example, Uber says, Plaintiffs may not have smartphones, credit cards, access to the App Store or Google Play Store, or a desire to assent to the Terms and Conditions of the Uber App. But our caselaw does not require Plaintiffs to specifically allege that they possess means to visit the accommodation. In Pickern, for example, we did not require the plaintiff to allege he had a car or other means of transportation to visit the allegedly discriminatory grocery store, even though the plaintiff lived seventy miles from it. Pickern, 293 F.3d at 1135. Instead, we held “in stating that he is currently deterred from attempting to gain access . . . [the plaintiff] has stated sufficient facts to show concrete, particularized injury.” Id. at 1137. So too here.
Finally, Uber argues that we should follow Access Living v. Uber Technologies, Inc., 958 F.3d 604 (7th Cir. 2020), in which the Seventh Circuit held that a plaintiff who had not downloaded the Uber App or created an account lacked standing to sue Uber over alleged
We agree with the Seventh Circuit that this differing fact—that Uber does not offer uberWAV at all in New Orleans—is a dispositive distinction in this case. Where uberWAV is offered, it makes sense that a plaintiff would be required to download the Uber App so that a proper comparison of available services may be made in support of an alleged
Uber also argues that Plaintiffs have not plausibly alleged causation and redressability. Causation exists where the alleged injury is “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks and alterations omitted). Redressability, by contrast, is satisfied where it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. (internal quotation marks omitted). Plaintiffs’ allegations meet both standards here.
Uber argues that causation is lacking because even if Uber offered uberWAV in New Orleans, Plaintiffs’ ability to obtain rides would depend on drivers with wheelchair-accessible vehicles offering rides through the service. And Plaintiffs’ alleged injury is not redressable, Uber argues, for the same reason. Any injunction requiring Uber to provide uberWAV in New Orleans would not guarantee Plaintiffs access to uberWAV because drivers might elect not to purchase wheelchair-accessible vehicles and drive them for Uber.
In support of these arguments, Uber cites Allen v. Wright, 468 U.S. 737 (1984). In that case, parents of African-American children sued the IRS, alleging that they were injured because the IRS‘s decision to give tax exemptions to racially discriminatory schools meant that their children could not receive an education in a desegregated school. Id. at 758. But the Supreme Court held that any such injury was not fairly traceable to the IRS‘s decision to offer a tax exemption because the schools could continue to segregate even if the tax exemption were no longer offered. Id.
Here, by contrast, Uber drivers cannot offer uberWAV services without Uber first making that option available. Uber, and Uber alone, can rectify any alleged violation of the
III
Uber also argues that the district court erred in denying its motion to compel arbitration, a decision we review de novo. Bushley v. Credit Suisse First Boston, 360 F.3d 1149, 1152 (9th Cir. 2004). Uber‘s only argument in favor of reversal is that Plaintiffs should be equitably estopped from avoiding arbitration. We disagree.
Generally, parties who have not assented to an arbitration agreement cannot be compelled to arbitrate under its terms. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293 (2002). But under
Uber argues that Plaintiffs’ standing theory—that they may sue without downloading the Uber App and assenting to its Terms and Conditions because downloading the Uber App would be futile—is inextricably intertwined with the Terms and Conditions. That is so, according to Uber, because Plaintiff‘s standing theory only works if they are assumed to be like another party who downloaded the Uber App and faced discrimination. But equitable estoppel is “inapplicable where a plaintiff‘s allegations reveal no claim of any violation of any duty, obligation, term or condition” imposed by the contract. In re Henson, 869 F.3d 1052, 1060 (9th Cir. 2017) (applying
NAMISNAK V. UBER TECHNOLOGIES
That is the case here. Plaintiffs do not rely on Uber‘s Terms and Conditions. None of Uber‘s Terms and Conditions is mentioned in the operative complaint, and the only Terms or Conditions Uber has mentioned is the arbitration clause. Plaintiffs’ case arises entirely under the
* * *
Plaintiffs have pled sufficient facts to establish
AFFIRMED.