A Reminder About Basic Standing Requirements
Like last month, February started really slow... and the first case didn't show up until the second week. In Monegro v. Street Insider, Inc., 2022 U.S. Dist. LEXIS 25576 (S.D.N.Y. 2022), the Southern District of New York dismissed a complaint by Frankie Monegro, who visited an online financial news service several times but was unable to complete a purchase because the site was inaccessible. The defendant moved to dismiss the case because of a lack of subject matter jurisdiction.
The court's analysis was pretty straightforward but I think it was also hyper-technical. In short, Mr. Monegro's complaint didn't allege that he intended to return to the site. This is important because the only relief he sought (and the only relief he was entitled to) is injunctive relief. But there is clearly little need for a plaintiff to have someone fix their website if they don't have an intention to return to that website. That makes perfect sense but it also wouldn't have been difficult to add a clause, "... and Mr. Monegro wishes to avail himself of the defendant's services in the future." This seems perfectly plausible given the fact that he had alleged that he had visited the site several times in the past. Mr. Monegro's attorneys also argued that his case shouldn't be dismissed because he was a tester. As I've mentioned before in this blog, the question of whether testers have standing to sue is a hotly contested issue in the courts-- it isn't exactly the best argument that a plaintiff could put forward, especially when you don't allege it in your complaint. And, sure enough, that argument was rejected by the court as well.
The court dismissed the complaint without prejudice. This means that the plaintiff can go back and fix up the defects in their complaint and file it again. But what gets me is that Mr. Monegro probably won't succeed in the long run because, as far as I can ascertain, Street Insider isn't a place of public accommodation anyways. Like Newsday, Street Insider is a news service and, just as in the Newsday case, Street Insider doesn't fall within one of the 12 categories of places of public accommodation.
A Realtor's Website in the Crosshairs... Sort of
Continuing this month's pattern, we have a second case from the other side of the country that goes back to basics. In Gomez v. Gates Estates, 2022 U.S. Dist. LEXIS 27266 (N.D. Cal. 2022), Andres Gomez sued a real estate broker for having an inaccessible website. More specifically, his complaint alleged that he "was a prospective customer who wished to access Defendant's goods and services of the Real Estate. Plaintiff visited the Website in March 2021 and July 2021 with the intent to get information about houses on sale in Northern California." But Mr. Gomez also filed five other identical lawsuits through the same attorney against other realtors near Napa Valley, California.
The district court ordered Mr. Gomez's case dismissed because he had no intention of accessing the services of a realtor. In the Ninth Circuit, of course, a plaintiff has to establish a connection or "nexus" between a website and a physical bricks and mortar place of public accommodation to sue under the ADA alleging that that website is inaccessible. Obviously, if Mr. Gomez has no intention of accessing the goods and services of a place of public accommodation, then that nexus does not exist and he can't sue based on the inaccessibility of that website.
Maybe a Default Judgment isn't Such a Bad Idea...
Last month, I mentioned the case of Jaquez v. Brilliant Home Tech., 2022 U.S. Dist. LEXIS 7240 (S.D.N.Y. 2022), where the defendant didn't even bother answering the complaint and the court entered a default judgment against them. In that case, they ended up paying $9,799. This month, the defendant in Suris v. Collive Corp., 2022 U.S. Dist. LEXIS 21716 (E.D.N.Y. 2022) got an even better deal-- they got a default judgment and paid only $3,919.20 ($1,000 in compensatory damages, $500 in statutory damages, $1,783.27 in attorney's fees and $635.93 in costs).
Of course, if you get sued, you should always talk to an attorney about your rights and responsibilities. But you and your attorney may decide to just get a default judgment if you live in a jurisdiction where this makes sense. For instance, in California, you can expect to tack on an extra $4,000 if the complaint includes an Unruh Claim. What's interesting to me is that Collive is another media site and could have easily fought this if they wanted to. But, why bother if all it does is drive up both your legal bill and the plaintiff's attorney's fees? Maybe it's better to save your money for fixing your website-- and avoiding the next case... and the one after that... and the one after that....
Websites, California, Default Judgments, and Intentional Discrimination
In Martinez v. Diamond Hill Vineyards, 2022 Cal. App. Unpub. LEXIS 1089 (Cal. Ct. App. 2022), a California state Court of Appeals reversed the district court's opinion dismissing the plaintiff's complaint with prejudice. Abelardo Martinez is a serial plaintiff in California who sued Diamond Hill Vineyards because of its inaccessible website under California's Unruh Act. The defendant never answered the complaint and the court entered a default judgment for $20,355.75 (I did suggest earlier that default judgments in California would like be more expensive, didn't I?).
However, rather than approval that award, the district court dismissed the case because the plaintiff could not show that a clear connection or nexus between the website and a physical place of public accommodation. But that's for purely ADA cases or Unruh cases based an ADA claim. But, as I've blogged about before, there is a second way to create an Unruh claim-- and that's by alleging intentional discrimination. Here, the court's brief analysis is worth copying in full,
As a general matter, alleging that a facially neutral policy disproportionately impacts a protected class is not alone sufficient to state a cause of action for intentional discrimination under the Unruh Act. In Koebke v. Bernardo Heights Country Club (2005), our Supreme Court reiterated its construction of sections 51 and 52 to proscribe only "'willful, affirmative misconduct.'" Significantly for our purposes, however, "evidence of disparate impact [may] be admitted in [Unruh Act] cases because 'such evidence may be probative of intentional discrimination in some cases ..."
Plaintiff's complaint alleges defendant intentionally discriminated against him based on his disability by "construct[ing] a Website that is inaccessible to [him], knowingly maintain[ing] the Website in this inaccessible form, and . . . fail[ing] to take adequate actions to correct these barriers even after being notified of the discrimination that such barriers cause." Even if the inference of intentional discrimination to which these allegations give rise is not strong (though defendant did not appear to defend against the complaint), the allegations suffice at the pleading stage to state a cause of action for intentional discrimination in violation of the Unruh Act.
Martinez, at *9-11 (citations omitted).
So what's the bottom line? If you're a defendant in a California Unruh case, think twice about a default judgment-- it's going to cost you a lot more money. And, if you're a plaintiff in California, always allege intentional discrimination if you don't have clear evidence of a nexus.
Store Locator Doesn't Create a Nexus and Why Mootness is a Tough Argument
In Brooks v. Lola & Soto Business Group, 2022 U.S. Dist. LEXIS 37246 (E.D. Cal. 2022), Valerie Brooks, a serial web plaintiff, sued because the Miss Lola website was inaccessible. She claimed that these barriers "deterred and impeded [her] from the full and equal enjoyment of goods and services offered in Defendant's store and from making purchases at such physical location."
After the complaint was filed, the defendant asserted that it made it's website compliant with WCAG 2.1-- thus raising the issue of mootness. But the court rejected the mootness argument because the "[d]efendant has not met its burden to show it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Anyone who works with websites know that this conclusion makes perfect sense because websites are constantly changing. But that also raises a valuable question-- can mootness ever work in web accessibility cases (and, for what it's worth, the website wasn't compliant with WCAG 2.1 because the defendant used a plugin to achieve accessibility).
The defendant was a bit more successful in a more basic defense in web accessibility cases-- asserting that the plaintiff did not allege an adequate nexus between the website and its physical stores. And the court's analysis shows that the court's don't consider store locator features to be sufficient anymore.
Here, Plaintiff fails to identify any similar nexus. Plaintiff does not allege she tried to order clothes from the Website for pickup at Defendant's shop but was unable to do so. Nor does she identify any integration or interconnectedness between the Website and Defendant's physical store comparable to that encountered in Robles. Instead, Plaintiff identifies only a store locator that, "by all indications, would have no functional difference from the results obtained by a simple Google search for [Defendant's shop] on any internet browser." Indeed, Plaintiff provides no explanation as to why the inability to have graphics or images explained to her, by way of alt-text, prevented her from ascertaining the location of Defendant's brick-and-mortar store. As such, Plaintiff's complaint is devoid of any allegation that the website is integrated with Defendant's physical locations in any specific way. Therefore, Plaintiff's ADA claim fails to state a claim upon which relief can be granted. The Court thus GRANTS Defendant's motion to dismiss pursuant to Rule 12(b)(6).
Brooks, at *17-18.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
The opinions linked to from this blog are also taken directly from PACER, the Federal government's docket system used by judges and lawyers to manage documents in Federal court litigation. We cannot assure that these public documents accessible.
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