National Federation of the Blind, et al v. Arizona Board of Regents, et al

Filing 29

MOTION to Dismiss Case (Plaintiff Shandrow) by Arizona Board of Regents, Arizona State University. (Attachments: # 1 Exhibit 1-2)(Blandford, Alisa)

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1 2 3 4 5 6 7 TERRY GODDARD Attorney General Lisa K. Hudson, 012597 Alisa A. Blandford, 022901 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7673 Telephone: (602) 542-7687 Fax: (602) 542-7644 8 Attorneys for Defendants 9 10 IN THE UNITED STATES DISTRICT COURT 11 FOR THE DISTRICT OF ARIZONA 12 13 14 The NATIONAL FEDERATION OF THE BLIND, The AMERICAN COUNCIL OF THE BLIND, and DARRELL SHANDROW, Plaintiffs, 15 16 The ARIZONA BOARD OF REGENTS and ARIZONA STATE UNIVERSITY MOTION TO DISMISS PLAINTIFF SHANDROW FOR LACK OF STANDING vs. 17 Case No: CV09-01359 GMS 18 (Assigned to Honorable G. Murray Snow) Defendants. 19 20 Defendants Arizona Board of Regents (ABOR) and Arizona State University 21 (ASU) move this Court to dismiss Plaintiff Shandrow’s claims for lack of subject matter 22 jurisdiction because Plaintiff Shandrow lacks standing. Fed. R. Civ. P. 12(b)(1). 23 MEMORANDUM OF POINTS AND AUTHORITIES 24 Plaintiffs’ Complaint alleges that ASU’s participation in a Kindle DX pilot 25 program violates his rights under the Americans With Disabilities Act (ADA) and the 26 Rehabilitation Act. Plaintiff Shandrow is a student at the Walter Cronkite School of 27 28 1 Journalism and Mass Communication at ASU. Complaint ¶ 8. Plaintiff Shandrow is 2 blind and is substantially impaired in the major life activity of seeing. Id. 3 In May of 2009, ASU announced that it was one of six post-secondary schools 4 that would launch a pilot program that would provide Kindle DX devices to students 5 beginning in the Fall of 2009. Complaint ¶¶ 21, 22. The Kindle DX is a lightweight, 6 portable electronic book (e-book) reader that has many functions including a text-to- 7 speech function; a rotating display; a wireless modem for downloading e-books; and 8 various search functions. Complaint ¶¶ 12-18. For the purposes of the pilot program, 9 students will receive their textbooks on a Kindle DX rather than purchasing bound text 10 books. Complaint ¶ 24. The Kindle DX is not accessible to blind individuals without 11 assistance because the menus and screen navigation do not have an audible option. 12 Complaint ¶ 19. 13 ASU’s Kindle DX pilot program is a one-year program that will commence in the 14 Fall of 2009 and continue for two semesters. Declaration of Ted Humphrey ¶ 2 15 (Humphrey Declaration) which is attached as Exhibit 1.1 The pilot program involves 16 only a single course: the Human Event. Declaration of Adrian Sannier ¶ 4 which is 17 attached as Exhibit 2. The Human Event is a course offered only to students in the 18 Barrett Honors College at ASU. Humphrey Declaration ¶ 2. There are 47 sections of 19 the Human Event offered in the 2009 fall semester. Humphrey Declaration ¶ 3. Of 20 those sections, only those three taught by Professor Ted Humphrey are participating in 21 the Kindle DX pilot program. Humphrey Declaration ¶ 4. The three sections 22 participating in the pilot program have completed enrollment and are full. Humphrey 23 Declaration ¶ 4. No blind students enrolled in the pilot sections of the Human Event or 24 sought to be enrolled. Humphrey Declaration ¶ 7. 25 26 27 28 1 Normally, a court may not look beyond the plaintiff’s complaint in resolving a motion to dismiss. However, when defendants bring a facial attack under Rule 12(b)(1) for lack of subject matter jurisdiction, the court can consider extrinsic evidence in determining whether it has power to hear the case. See Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1978). 2 1 Plaintiff Shandrow has no standing to bring a suit over ASU’s participation in the 2 Kindle DX pilot program. To establish standing to sue, a plaintiff must demonstrate “a 3 sufficient personal stake in the outcome.” Fleck and Assoc., Inc. v. Phoenix, 471 F.3d 4 1100, 1103 (9th Cir. 2006). The plaintiff must allege “(1) [he] has suffered an ‘injury in 5 fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 6 hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; 7 and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by 8 a favorable decision.” Stormans, Inc. v. Selecky, 2009 WL 1941550 * 6 (9th Cir. July 8, 9 2009) (internal citation omitted). The first element, “injury in fact,” necessitates a 10 showing of “an invasion of a legally protected interest” that “affect[s] the plaintiff in a 11 personal and individual way.” Fleck, 471 F.3d at 1103 (internal citation omitted). A 12 plaintiff seeking to invoke federal court jurisdiction must plead the he has suffered some 13 cognizable injury to make the threshold showing of a case or controversy. See id. 14 Plaintiff Shandrow cannot establish an injury in fact. The Kindle DX pilot is 15 limited to the Human Event course in the Barrett Honors College. Plaintiff Shandrow, 16 like a great number of ASU students, is excluded from the Kindle DX pilot because he is 17 not a student in the Barrett Honors College. His disability was not a factor in 18 determining eligibility for the Kindle DX pilot – his status as a student in the School of 19 Journalism prevents him from being eligible. No class that Plaintiff Shandrow could 20 enroll in is participating in the Kindle DX pilot. Plaintiff Shandrow has suffered no 21 injury in fact and therefore lacks standing. 22 23 For the foregoing reasons, Defendants respectfully request an order dismissing Plaintiff Shandrow’s claims. 24 25 26 27 28 3 1 Respectfully submitted this 24th day of July, 2009. Terry Goddard Attorney General 2 3 s/ Alisa A. Blandford__________ Lisa K. Hudson Alisa A. Blandford Assistant Attorney General Attorney for Defendants 4 5 6 7 8 9 10 11 I certify that I electronically transmitted the attached document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following, if CM/ECF registrants, and mailed a copy of same to any non-registrants, this this 24th day of July, 2009 to: 12 13 14 Andrew S. Friedman Guy A. Hansen BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2901 North Central Avenue, Suite 1000 Phoenix, AZ 85012 15 16 17 Daniel F. Goldstein Mehgan Sidhu BROWN, GOLDSTEIN & LEVY, LLP 120 E. Baltimore St., Suite 1700 Baltimore, MD 21202 18 19 20 Amy Robertson FOX & ROBERTSON, P.C. 104 Broadway, Suite 400 Denver, CO 80203 22 Eve Hill 1667 K St. NW, Suite 640 Washington, DC 20006 23 Attorneys for Plaintiffs 21 24 25 26 27 s/Deb Anderson Secretary to Lisa K. Hudson 506616 28 4

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