Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al

Filing 20

MINUTES (IN CHAMBERS) ORDER RE: MOTION TO REMAND TO LOS ANGELES SUPERIOR COURT 12 by Judge Michael W. Fitzgerald. The Motion is DENIED. (iv)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
Present: The Honorable MICHAEL W. FITZGERALD, U.S. District Judge
Deputy Clerk:
Rita Sanchez

Court Reporter:
Not Reported

Attorneys Present for Plaintiff:
None Present

Attorneys Present for Defendant:
None Present

Proceedings (In Chambers): ORDER RE: MOTION TO REMAND TO LOS
ANGELES SUPERIOR COURT [12]
Before the Court is Plaintiff Rosario Rodriguez’s Motion to Remand Case to Los
Angeles County Superior Court (the “Remand Motion”), filed on October 16, 2020.
(Docket No. 12). Defendant Foot Locker Corporate Services, Inc. (“Foot Locker”)
filed an opposition on October 26, 2020. (Docket No. 13). Plaintiff filed a reply on
November 2, 2020. (Docket No. 16).
The Court has read and considered the papers filed in connection with the
motions and held a telephonic hearing on November 16, 2020, pursuant to General
Order 20-09 arising from the COVID-19 pandemic.
For the reasons discussed below, the Remand Motion is DENIED. Defendant
has demonstrated that the amount in controversy exceeds $75,000.
I.

BACKGROUND

On February 18, 2020, Plaintiff commenced this putative class action against
Defendant in the Los Angeles County Superior Court. (Notice of Removal (“NoR”),
Ex. A (“Complaint”) (Docket No. 1)).
The Complaint alleges as follows:

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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
Plaintiff is a visually-impaired and legally blind person who requires screenreading software to access and read website content using her computer. (Complaint ¶
2). Plaintiff uses the terms “blind” or “visually-impaired” herein to refer to all people
with visual impairments who meet the legal definition of blindness in that they fall
within the meaning of California’s Unruh Civil Rights Act (“UCRA”), Cal. Civ. Code
section 51, et seq. and have a visual acuity with correction of less than or equal to 20 x
200. (Id.).
Plaintiff, and all other visually impaired individuals, are unnecessarily denied
equal access to the same online information and goods and services offered to others
because Defendant’s website, www.footlocker.com (the “Website”), and all subgroups
of webpages contained in the Website, are not fully accessible to screen-reading
technology used by blind individuals. (Id. ¶ 3). This relegates visually impaired
customers of Defendant to a second-class experience. (Id.). If Defendant’s Website
was accessible, then visually impaired individuals could independently access
information relating to the pricing, description, and details of Defendant’s goods and
services, with the same convenience available to others. (Id.).
Upon information and belief, Plaintiff alleges that Defendant produces, markets,
offers for sale, sells, and/or monetizes designer retail products and goods, including
sportswear, personal goods and/or accessories, in various retailers including one(s)
located within the County of Los Angeles, California. (Id. ¶ 4). The retail store(s)
that offer Defendant’s products are commercial stores that offer for sale sportswear,
accessories and other goods to the public. (Id.). The retail store(s) that offer
Defendant’s products, including the one(s) within the County of Los Angeles,
California, are places of public accommodation open to the public. (Id.).
Upon information and belief, Plaintiff alleges that Defendant owns, operates,
manages, updates and/or monetizes its Website, which provides to the public a wide
array of goods, services, discounts, gift cards, and/or information concerning the brickand-mortar retail store(s) that offer Defendant’s products, including the one(s) located
in the County of Los Angeles. (Id. ¶ 5). The Website also offers the public online
features that allow the sale of Defendant’s goods and services. (Id.).
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
The Website contains significant access barriers that make it impossible for
visually impaired customers to utilize the Website properly and fully. (Id. ¶ 6).
Specifically, these barriers make it impossible for Plaintiff to have full access to the
Website and to independently purchase goods and services online and access
information concerning discounts, brick-and-mortar stores, and other goods and
services offered by Defendant online. (Id.).
Defendant thus excludes the visually impaired from full and equal participation
in the growing Internet economy that is increasingly a fundamental part of the common
marketplace and daily living. (Id. ¶ 7). In the wave of technological advances in
recent years, assistive computer technology is becoming an increasingly prominent part
of everyday life for visually impaired individuals, allowing them to fully and
independently access a variety of goods and services, including making online
purchase of consumer products. (Id.).
Despite readily available methods to render websites fully accessible to all, such
as the methods in use by other businesses, which make correct and proper use of
alternative text, accessible forms, descriptive links, resizable text, and labels,
Defendant has failed to design, construct, maintain, and operate its Website to be fully
accessible to and independently usable by Plaintiff and other visually-impaired
individuals. (Id. ¶ 8).
Defendant’s denial of full and equal access to its Website, and therefore denial
of its products and services offered thereby and in conjunction with the physical
location(s) that offer for sale Defendant’s products, is a violation of Plaintiff’s rights
under the UCRA. (Id. ¶ 9).
Unless Defendant remedies the numerous access barriers on its Website,
Plaintiff will continue to be unable to independently navigate, browse, use, access and
complete a transaction on the Website. (Id. ¶ 11). Because Defendant’s Website is not
equally accessible to blind and visually-impaired consumers in violation of the UCRA,
Plaintiff seeks declaratory, injunctive, and monetary relief. (Id.).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
Plaintiff expressly limits damages to a total of $34,999.00 in statutory damages
and $15,000.00 in costs for complying with injunctive relief. (Declaration of Azar
Mouzari (“Mouzari Decl.”) ¶ 4; Complaint (Docket No. 1-1)).
On September 17, 2020, Defendant removed the action, invoking diversity
jurisdiction under 28 U.S.C. § 1332(c). (NoR ¶ 6).
II.

DISCUSSION

As a preliminary matter, the Court notes that there is no dispute as to whether
the parties are diverse for the purpose of determining citizenship under 28 U.S.C. §
1332. The parties’ only point of disagreement with respect to removal is whether the
amount in controversy exceeds $75,000. Defendant argues that the nonmonetary relief
alone exceeds $75,000. (Opposition at 6). The Court agrees.
Plaintiff seeks “a preliminary and permanent injunction requiring Defendant to
take the steps necessary to make the Website readily and fully accessible to and usable
by blind and visually-impaired individuals.” (Complaint, Prayer for Relief ¶ B). As
explained in detail in the Declaration of Mehul Doshi (“Doshi Decl.”), improving and
maintaining the accessibility of a commercial website such as www.footlocker.com for
blind and visually-impaired consumers who use screen-reader software is a complex
endeavor that requires ongoing efforts. (Doshi Decl. ¶ 6).
Ninth Circuit law expressly contemplates the amount in controversy is “the
potential cost to the defendant of complying with the injunction.” In re Ford Motor
Co./Citibank (South Dakota), NA, 264 F.3d 952, 958 (9th Cir. 2001) (emphasis added);
Corral v. Select Portfolio Servicing, Inc., 878 F.3d 770, 775 (9th Cir. 2017). Foot
Locker has presented evidence indicating that the cost of complying with the
injunction would exceed $100,000. (Doshi Decl. ¶ 14).
Specifically, Foot Locker has presented evidence that it would need to engage a
third-party consultant that specializes in commercial website accessibility to conduct
an audit and assessment of its website and to provide recommendations regarding what
steps are necessary to further improve website accessibility for consumers who utilize
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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
screen-reader software. (Id. ¶ 14(a)). According to the Doshi Declaration, Foot
Locker has engaged such a consultant in the past for similar work at an out-of-pocket
cost in excess of $75,000. (Id.)
Additionally, Foot Locker has presented persuasive evidence that Foot Locker
would need to hire at least one additional web architect or web developer to work on a
dedicated, full-time basis on website accessibility issues at a cost of more than
$100,000 annually based on the salary Foot Locker currently pays to similar IT/IS
professionals. (Id. ¶ 14(b)). Foot Locker also would need to increase its utilization
and reliance on IT/IS professionals for website accessibility quality assurance at a cost
that would exceed $100,000. (Id. ¶ 14(c)). The Court agrees with Defendants that it
would not be possible for Foot Locker to comply with the injunction while limiting its
costs to $15,000, and that the cost of complying with the injunction alone would
exceed $75,000. (Id. ¶¶ 5, 14).
At the hearing, Plaintiff argued that the Doshi Declaration is insufficient to
establish the amount-in-controversy because it does not specify how much money
would be spent on the precise barriers identified in the Complaint. Plaintiff made the
same argument in the Motion, citing to Baracco v. Brooks Brothers Group, Inc. and
Martinez v. Epic Games, Inc., for the proposition that a precise accounting is required
to establish the cost of complying with an injunction. (See Reply at 9) (citing Baracco
v. Brooks Brothers Group, Inc., CV 18-9208 PSG (JPRx), 2019 U.S. Dist. LEXIS
10201, at *7-8 (C.D. Cal. Jan. 22, 2019) (the defendant failed to meet its burden of
proof because the declaration did not indicate how much of the $150,000 would go
towards fixing the specific access barriers alleged by plaintiff)); (Martinez v. Epic
Games, Inc., CV 19-10878-CJC (PJWx), 2020 U.S. Dist. LEXIS 42469, at *3 (C.D.
Cal. Mar. 10, 2020) (holding that the “[d]eclaration fails to sufficiently explain why the
burdens of compliance would be of such magnitude to necessitate an additional fulltime employee.”)).
Although the Complaint identifies numerous barriers on Foot Locker’s website,
the relief sought in the Complaint is not limited to remedying only those barriers. The
Complaint seeks to enjoin Defendant from violating any provision of UCRA through
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
their website. (See Complaint, Prayer for Relief at A). Specifically, Plaintiff seeks the
following relief:
A. A preliminary and permanent injunction enjoining Defendants from
further violations of the UCRA, Civil Code §§ 51, et seq., with respect
to their Website, https://www.footlocker.com/ and all of the webpages
and urls contained therein;
B. A preliminary and permanent injunction requiring Defendants to take
the steps necessary to make their Website readily and fully accessible
to and usable by blind and visually impaired individuals.
(Id. at A-B).
Because the relief requested in the Complaint is not limited to remedying the
specific barriers listed in the Complaint, Defendant’s declaration explaining the cost of
bringing the entire website into compliance with the UCRA is sufficient to establish
the overall cost of complying with the injunction.
The Court is also satisfied that the amount-in-controversy requirement is met by
including future attorneys’ fees. The Ninth Circuit has held that “‘a court must include
future attorneys’ fees recoverable by statute . . . when assessing whether the amountin-controversy requirement is met.’” Arias v. Residence Inn by Marriott, 936 F.3d
920, 927 (9th Cir. 2019) (quoting Fritsch v. Swift Transp. Co. of Ariz. LLC, 899 F.3d
785, 794 (9th Cir. 2018)). The Court notes that litigating an individual Unruh Act
claim has led to a recovery of more than $75,000 in attorneys’ fees. See, e.g., Engel v.
Worthington, 60 Cal. App. 4th 628, 635-636, 70 Cal. Rptr. 2d 526 (1997) (finding
$80,875 in attorneys’ fees for recovering $250 in Unruh damages to be reasonable in
1997); Antoninetti v. Chipotle Mexican Grill, Inc., 49 F. Supp. 3d 710, 714, 725 (S.D.
Cal. 2014) (awarding $317,927.50 in attorneys’ fees in Unruh Act disability case
predicated on ADA violations, in addition to $898,549 already awarded to counsel in
related cases).

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CIVIL MINUTES—GENERAL
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No. CV 20-8536-MWF (KSx)
Date: November 20, 2020
Title: Rosario Rodriguez v. Foot Locker Corporate Services, Inc. et al
Because the Court determines that the cost of complying with the injunction
would likely exceed $75,000, and that the inclusion of attorneys’ fees has the potential
to exceed $75,000, the Court concludes that the amount-in-controversy requirement is
satisfied.
Accordingly, for the reasons set forth above, the Motion is DENIED.
IT IS SO ORDERED.

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CIVIL MINUTES—GENERAL
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