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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TERRY GODDARD
Attorney General
Lisa K. Hudson, 012597
Alisa A. Blandford, 022901
Assistant Attorney General
1275 W. Washington
Phoenix, Arizona 85007-2997
Telephone: [phone]
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Defendants
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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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The NATIONAL FEDERATION OF
THE BLIND, The AMERICAN
COUNCIL OF THE BLIND, and
DARRELL SHANDROW,
Plaintiffs,

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The ARIZONA BOARD OF REGENTS
and ARIZONA STATE UNIVERSITY

MOTION TO DISMISS PLAINTIFF
SHANDROW FOR LACK OF
STANDING

vs.

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Case No: CV09-01359 GMS

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(Assigned to Honorable G. Murray Snow)

Defendants.

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Defendants Arizona Board of Regents (ABOR) and Arizona State University

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(ASU) move this Court to dismiss Plaintiff Shandrow’s claims for lack of subject matter

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jurisdiction because Plaintiff Shandrow lacks standing. Fed. R. Civ. P. 12(b)(1).

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MEMORANDUM OF POINTS AND AUTHORITIES

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Plaintiffs’ Complaint alleges that ASU’s participation in a Kindle DX pilot

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program violates his rights under the Americans With Disabilities Act (ADA) and the

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Rehabilitation Act. Plaintiff Shandrow is a student at the Walter Cronkite School of

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Journalism and Mass Communication at ASU. Complaint ¶ 8. Plaintiff Shandrow is

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blind and is substantially impaired in the major life activity of seeing. Id.

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In May of 2009, ASU announced that it was one of six post-secondary schools

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that would launch a pilot program that would provide Kindle DX devices to students

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beginning in the Fall of 2009. Complaint ¶¶ 21, 22. The Kindle DX is a lightweight,

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portable electronic book (e-book) reader that has many functions including a text-to-

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speech function; a rotating display; a wireless modem for downloading e-books; and

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various search functions. Complaint ¶¶ 12-18. For the purposes of the pilot program,

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students will receive their textbooks on a Kindle DX rather than purchasing bound text

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books. Complaint ¶ 24. The Kindle DX is not accessible to blind individuals without

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assistance because the menus and screen navigation do not have an audible option.

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Complaint ¶ 19.

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ASU’s Kindle DX pilot program is a one-year program that will commence in the

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Fall of 2009 and continue for two semesters. Declaration of Ted Humphrey ¶ 2

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(Humphrey Declaration) which is attached as Exhibit 1.1 The pilot program involves

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only a single course: the Human Event. Declaration of Adrian Sannier ¶ 4 which is

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attached as Exhibit 2. The Human Event is a course offered only to students in the

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Barrett Honors College at ASU. Humphrey Declaration ¶ 2. There are 47 sections of

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the Human Event offered in the 2009 fall semester. Humphrey Declaration ¶ 3. Of

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those sections, only those three taught by Professor Ted Humphrey are participating in

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the Kindle DX pilot program. Humphrey Declaration ¶ 4. The three sections

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participating in the pilot program have completed enrollment and are full. Humphrey

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Declaration ¶ 4. No blind students enrolled in the pilot sections of the Human Event or

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sought to be enrolled. Humphrey Declaration ¶ 7.

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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).
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Plaintiff Shandrow has no standing to bring a suit over ASU’s participation in the

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Kindle DX pilot program. To establish standing to sue, a plaintiff must demonstrate “a

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sufficient personal stake in the outcome.” Fleck and Assoc., Inc. v. Phoenix, 471 F.3d

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1100, 1103 (9th Cir. 2006). The plaintiff must allege “(1) [he] has suffered an ‘injury in

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fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or

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hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant;

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and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by

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a favorable decision.” Stormans, Inc. v. Selecky, 2009 WL 1941550 * 6 (9th Cir. July 8,

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2009) (internal citation omitted). The first element, “injury in fact,” necessitates a

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showing of “an invasion of a legally protected interest” that “affect[s] the plaintiff in a

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personal and individual way.” Fleck, 471 F.3d at 1103 (internal citation omitted). A

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plaintiff seeking to invoke federal court jurisdiction must plead the he has suffered some

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cognizable injury to make the threshold showing of a case or controversy. See id.

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Plaintiff Shandrow cannot establish an injury in fact. The Kindle DX pilot is

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limited to the Human Event course in the Barrett Honors College. Plaintiff Shandrow,

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like a great number of ASU students, is excluded from the Kindle DX pilot because he is

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not a student in the Barrett Honors College. His disability was not a factor in

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determining eligibility for the Kindle DX pilot – his status as a student in the School of

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Journalism prevents him from being eligible. No class that Plaintiff Shandrow could

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enroll in is participating in the Kindle DX pilot. Plaintiff Shandrow has suffered no

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injury in fact and therefore lacks standing.

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For the foregoing reasons, Defendants respectfully request an order dismissing
Plaintiff Shandrow’s claims.

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Respectfully submitted this 24th day of July, 2009.
Terry Goddard
Attorney General

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s/ Alisa A. Blandford__________
Lisa K. Hudson
Alisa A. Blandford
Assistant Attorney General
Attorney for Defendants

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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:

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Andrew S. Friedman
Guy A. Hansen
BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C.
2901 North Central Avenue, Suite 1000
Phoenix, AZ 85012

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Daniel F. Goldstein
Mehgan Sidhu
BROWN, GOLDSTEIN & LEVY, LLP
120 E. Baltimore St., Suite 1700
Baltimore, MD 21202

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Amy Robertson
FOX & ROBERTSON, P.C.
104 Broadway, Suite 400
Denver, CO 80203

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Eve Hill
1667 K St. NW, Suite 640
Washington, DC 20006

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Attorneys for Plaintiffs

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s/Deb Anderson
Secretary to Lisa K. Hudson
506616

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