Earll v. eBay, Inc., a Delaware Corporation

Filing 76

Order by Hon. Edward J. Davila granting 66 Motion to Dismiss. (ejdlc2, COURT STAFF) (Filed on 8/8/2012)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

United States District Court
For the Northern District of California

10
11

MELISSA J. EARLL,
Plaintiff,

12
13
14

v.
EBAY INC.,
Defendant.

15
16

)
)
)
)
)
)
)
)
)
)

Case No.: 5:11-CV-00262-EJD
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS FIRST
AMENDED COMPLAINT
(Re: Docket No. 66)

Presently before the court is Defendant eBay Inc.’s (“eBay”) Motion to Dismiss the First

17

Amended Complaint (“FAC”) filed by Plaintiff Melissa J. Earll (“Earll”), on behalf of herself and

18

all others similarly situated. See Docket No. 66. Earll filed written opposition to the motion. See

19

Docket No. 68. The court found this matter suitable for decision without oral argument pursuant to

20

Civil Local Rule 7-1(b) and previously vacated the hearing date. Subject matter jurisdiction in this

21

court arises pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are proper because eBay

22

is a corporation headquartered in Santa Clara County. Having fully reviewed the moving, opposing

23

and reply papers filed by the parties, the court has determined eBay’s motion should be

24

GRANTED for the reasons described below.

25

I. FACTUAL AND PROCEDURAL BACKGROUND

26

The allegations contained in this section are taken largely from the FAC. Earll, a Missouri

27

resident who is deaf, attempted to use eBay’s selling services on June 23, 2008. FAC, Docket No.

28

1
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT

1

63, ¶¶ 24-25. Earll alleges she was unable to register as an eBay seller because eBay’s seller

2

registration process includes a telephone verification component. Id. ¶¶ 26-27. For over six weeks,

3

Earll repeatedly told eBay that she was deaf and that the procedures employed by eBay prevented

4

her from registering as a seller. Id. ¶¶ 25-37. Earll participated in several “live chat” sessions and

5

exchanged many emails with eBay representatives where she communicated with eBay

6

representatives over the Internet, but none accommodated her request to register as a seller using an

7

alternate means of verification. Id. ¶¶ 28, 31. Earll alleges eBay intentionally discriminated against

8

hearing-impaired persons by creating a verification system they cannot use. Id. ¶ 40.
Earll filed the putative class action on March 16, 2010 in the Western District of Missouri.

10
United States District Court
For the Northern District of California

9

In her original complaint, Earll asserted claims pursuant to the Americans with Disabilities Act, 42

11

U.S.C. §§ 12101, et seq. (“ADA”) and the California Disabled Persons Act, Cal. Civ. Code §§ 54,

12

et seq. (“DPA”).1 See Docket No. 1. While the case was pending in Missouri, eBay moved to

13

dismiss the case, or alternatively sought to transfer venue to the Northern District of California. See

14

Docket Nos. 14-17. On January 4, 2011, the court in Missouri granted eBay’s motion to transfer

15

venue, denied eBay’s motion to dismiss as moot, and ordered the case transferred to the Northern

16

District of California. See Docket No. 28. After transfer to this court, eBay moved again to dismiss

17

the case on April 8, 2011. See Docket No. 45.

18

Thereafter, Earll moved for leave to file an amended complaint, which advanced claims

19

under the ADA and DPA, and also sought to add a claim under the Unruh Civil Rights Act, Cal.

20

Civ. Code §§ 51, et seq. (“Unruh Act”). See Docket No. 47. Judge Fogel denied Earll’s motion for

21

leave to amend without prejudice, and dismissed eBay’s then-pending motion to dismiss as moot.

22

Order, Docket No. 61, at 6:4-7. In denying Earll’s motion to file an amended complaint, Judge

23

Fogel held that (1) the ADA could not afford a remedy to Earll in this case because eBay.com is

24

not a place of public accommodation, but (2) Earll may be able to state an independent claim under

25

the Unruh Act if she sufficiently pleaded intentional discrimination and (3) Earll may be able to

26
27
28

1

Earll also filed a claim under the Unfair Competition Law, Cal. Bus. & Prof. Code §§17200, et
seq., which she later withdrew in her FAC.
2
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT

1

state independent claims under the DPA if she alleged a violation of a California law that requires

2

higher standards of website accessibility than the ADA. Order at 3:18-5:22. Earll had not done so

3

in her proposed amended complaint, but Judge Fogel granted Earll leave to file an amended

4

complaint consistent with his order.

5
6

On October 5, 2011, Earll filed her FAC alleging violations of the ADA, the DPA, and the
Unruh Act.

7

II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient

9

specificity to “give the defendant fair notice of what the . . . claim is and the grounds upon which it

10
United States District Court
For the Northern District of California

8

rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A

11

complaint which falls short of the Rule 8(a) standard may therefore be dismissed if it fails to state a

12

claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is

13

appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a

14

cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.

15

2008).

16

When deciding whether to grant a motion to dismiss, the court must accept as true all “well-

17

pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must also

18

construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915

19

F.2d 1242, 1245 (9th Cir. 1988). However, “courts are not bound to accept as true a legal

20

conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. Moreover, anything

21

beyond the pleadings generally may not be examined. Hal Roach Studios, Inc. v. Richard Feiner &

22

Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). But “material which is properly submitted as part of

23

the complaint may be considered.” Twombly, 550 U.S. at 555.

24

“Dismissal with prejudice and without leave to amend is not appropriate unless it is clear

25

that the complaint could not be saved by amendment.” Eminence Capital, LLC v. Aspeon, Inc.,

26

316 F.3d 1048, 1052 (9th Cir. 2003). “A district court's failure to consider the relevant factors and

27
28

3
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT

1

articulate why dismissal should be with prejudice instead of without prejudice may constitute an

2

abuse of discretion.” Id.

3
4
5

III. DISCUSSION
A.

Violation of the ADA
To prevail on a discrimination claim under Title III of the ADA, a plaintiff must show that:

6

(1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns,

7

leases, or operates a place of public accommodation; and (3) the plaintiff was denied a public

8

accommodation by the defendant because of her disability. Ariz. ex. rel. Goddard v. Harkins

9

Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010).

United States District Court
For the Northern District of California

10

In denying Earll’s motion to amend, Judge Fogel found that, “[u]nder controlling Ninth

11

Circuit authority, ‘places of public accommodation’ under the ADA are limited to actual physical

12

spaces. Weyer v. Twentieth Century Fox Film Corp., 198 2 F.3d 1104, 1114 (9th Cir. 2000). Thus,

13

eBay is correct in arguing that the ADA cannot afford a remedy to Earll in this case.” Order at

14

3:28-4:3. Judge Fogel granted Earll leave to file an amended complaint consistent with his Order.

15

Despite Judge Fogel’s Order, Earll alleged an ADA violation in the FAC. In opposing this

16

motion to dismiss, Earll argues that Judge Fogel misinterpreted Weyer, or, alternatively, Weyer

17

was incorrectly decided.

18

The ADA claim in the FAC is inconsistent with Judge Fogel’s Order and therefore

19

exceeded the scope of Earll’s leave to amend the complaint. Additionally, Earll’s attempt to re-

20

litigate whether eBay.com is a place of public accommodation is, in effect, a motion for

21

reconsideration, which is not properly before the Court. See Civil L.R. 7–9; Wehlage v. EmpRes

22

Healthcare Inc., 821 F. Supp. 2d 1122, 1134 (N.D. Cal. 2011) (observing that “attempts to re-

23

litigate . . . the merits . . . are, in effect, motions for reconsideration . . . .” and rejecting arguments

24

on grounds that movant had failed to seek leave under Civ. L.R. 7-9(a)). Therefore, eBay’s motion

25

to dismiss the ADA claim is GRANTED. Because Earll will not be able to overcome the fact that

26

the ADA does not apply to eBay.com by amending her complaint, leave to amend is not

27

appropriate.

28

4
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT

1
2

B.

Violation of the DPA
The DPA provides that “[i]ndividuals with disabilities shall be entitled to full and equal

3

access, as other members of the general public, to accommodations, advantages, facilities, . . . and

4

privileges of all common carriers, . . . modes of transportation . . . , places of public

5

accommodation, . . . and other places to which the general public is invited . . . .” Cal. Civ. Code §§

6

54, 54.1(a)(1).

7

Judge Fogel recognized that Earll could still assert a DPA claim independent of her ADA
claim, but to do so she “would need to allege in effect a particular provision or regulation under

9

California law that requires higher standards of website accessibility than the ADA.” Order at 5:4-6

10
United States District Court
For the Northern District of California

8

(internal citation and quotations omitted). “The DPA is not a freestanding statute. To succeed on a

11

DPA claim, a plaintiff must point to separate California state regulations that prescribe higher

12

accessibility standards than the ADA.” Id. at 4:27-5:1

13

Contrary to Judge Fogel’s Order, Earll did not allege a particular California provision or

14

regulation requiring higher standards of website accessibility than the ADA in the FAC. Rather,

15

Earll argues that Judge Fogel misinterpreted the DPA and that the DPA is a freestanding statute,

16

which does not require a DPA claim be based on a separate California statute.

17

The DPA claim in the FAC is inconsistent with Judge Fogel’s Order and therefore exceeded

18

the scope of Earll’s leave to amend the complaint. Additionally, Earll’s attempt to re-litigate

19

whether the DPA requires that a plaintiff point to separate California state regulations that

20

prescribe higher accessibility standards than the ADA is, in effect, a motion for reconsideration,

21

which is not properly before the Court. See Civil L.R. 7–9(a); Wehlage, 821 F. Supp. 2d at 1134. If

22

Earll seeks reconsideration Judge Fogel’s Order regarding this issue, she must comply with Civil

23

Local Rule 7-9. Therefore, eBay’s motion to dismiss the DPA claim is GRANTED. Because Earll

24

also alleges that “there are no other statutes or regulations on which the DPA may rely in this

25

case,” leave to amend would be futile.

26
27
28

5
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT

1
2

D.

Violation of the Unruh Act
The Unruh Civil Rights Act provides that “[a]ll person within the jurisdiction of this state

3

are free and equal, and no matter what their . . . disability . . . are entitled to the full and equal

4

accommodations, advantages, facilities, privileges, or services in all business establishments of

5

every kind whatsoever.” Cal. Civ. Code § 51(b). To plead an Unruh Act violation independent of

6

an ADA claim, a plaintiff must allege “intentional discrimination in public accommodations in

7

violation of terms of the Act.’ ” Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009) (quoting

8

Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (1991)). The California Supreme

9

Court has concluded that the Act requires allegations of “willful, affirmative misconduct,” and that

United States District Court
For the Northern District of California

10

a plaintiff must allege more than the disparate impact of a facially neutral policy on a particular

11

group. See Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 854–54 (2005).

12

First, Earll argues that intentional discrimination may not be required to plead an

13

independent Unruh Act violation. Judge Fogel previously held that “[a] violation of the Unruh Act

14

may be maintained independent of an ADA claim where a plaintiff pleads ‘intentional

15

discrimination in public accommodations in violation of the terms of the Act.’ ” Order at 4:13-15.

16

Judge Fogel denied Earll’s motion to amend because Earll had not sufficiently pleaded facts

17

showing intentional discrimination. Id. at 5:7-22. Earll’s attempt to re-litigate whether intent is a

18

necessary element of an independent Unruh Act violation is essentially a motion for

19

reconsideration, which is not properly before the Court, and therefore this argument fails.

20

Additionally, Earll argues that she has sufficiently pleaded intentional discrimination. Judge

21

Fogel rejected Earll’s previous attempt to plead an Unruh Act claim because Earll’s allegations that

22

“eBay has gone out of its way to design a system that deaf and hard of hearing persons cannot use”

23

and refused to implement “easy and inexpensive” solutions “being used by thousands of companies

24

online” were “[c]onclusory and lack[ed] the requisite factual support to make out a plausible claim

25

for intentional discrimination.” Id. at 5:7-13. Judge Fogel further observed that Earll’s allegations

26

that she was told by eBay representatives to “enlist the help of a hearing person” were offset by

27

“other alleged communications in which eBay representatives informed her that she ‘would be able

28

6
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT

1

to verify her identify through the Live help function [on eBay’s website]’ ” Id. at 5:13-17. Judge

2

Fogel concluded: “That Earll did not succeed in verifying her identity through these alternative

3

means does not reasonably imply that eBay was unwilling or unable to remedy the situation” and

4

that “[a]s described in [Earll’s] proposed pleading, eBay’s actions did not necessarily amount to an

5

intentional denial of access to a public accommodation.” Id. at 5:18-21.

6

Similar to Earll’s proposed complaint, the FAC acknowledges that eBay generally

7

“requires sellers to verify their identities in order to sell items on eBay.com” by “plac[ing] an

8

automated phone call to the would-be seller” and “requir[ing] the would-be seller to verify her

9

identify by listening to a spoken PIN code or password and then inputting that PIN code or

United States District Court
For the Northern District of California

10

password online.” FAC ¶ 2. According to the FAC, eBay intentionally discriminated against Earll

11

based on her disability by “construct[ing] a website that is inaccessible to [Earll] and Class

12

members; maintain[ing] the website in this inaccessible form; and [failing] to take actions to

13

correct these barriers even after being notified of the discrimination that such barriers cause.” 1 Id. ¶

14

96.

15

Earll’s allegations describe a facially neutral verification process with a disparate impact on

16

the deaf community, but they do not demonstrate intentional discrimination. Furthermore, the fact

17

that Earll contacted eBay’s customer service and unsuccessfully requested to have eBay’s

18

otherwise applicable procedures modified is not sufficient to state a plausible claim of intentional

19

discrimination. FAC ¶¶ 27-35; Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1116 (N.D. Cal.

20

2011) (dismissing Unruh Act claim where plaintiff alleged that Facebook customer service was

21

difficult to use but did not allege that “Facebook treated her differently because of her disability,

22

nor . . . that Facebook applies its policies in a way that targets individuals with disabilities.”). In

23
24
25
26
27
28

eBay argues that even if Earll pleads intentional discrimination, Earll’s Unruh Act claim still must
be dismissed because no modification can be required of its website. Specifically, eBay argues that
the Unruh Act applies to websites as a kind of business establishment and neither section 51 nor
51.5 of the Unruh Act shall be construed to “require any . . . modification of any sort . . . beyond
[those] that [are] otherwise required by other provisions of law, to any new or existing
establishment . . . .” Cal Civ Code §§ 51(d) and 51.5(c). Assuming arguendo that Sections 51(d)
and 51.5(c) applies to websites, eBay has not demonstrated that correcting the alleged barriers to
accessing its website would require that eBay.com be modified. Thus, eBay’s argument that the
FAC be dismissed on this basis fails.
7
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT
1

1

opposition to this motion, Earll argues that eBay designed and maintained its verification process

2

in this manner in order to accomplish its goal of discrimination and that she also has a viable Unruh

3

Act claim for discriminatory application. The FAC, however, does not allege facts supporting these

4

potential theories of intentional discrimination.

5
6

Thus, Earll does not sufficiently plead intentional discrimination. Therefore, eBay’s motion
to dismiss Earll’s Unruh Act claim is GRANTED WITH LEAVE TO AMEND.

7
8
9

IV. ORDER
Based on the foregoing, eBay’s Motion to Dismiss the FAC is GRANTED WITHOUT
LEAVE TO AMEND as to Earll’s ADA and DPA claims. eBay’s Motion to Dismiss is

United States District Court
For the Northern District of California

10

GRANTED WITH LEAVE TO AMEND as to Earll’s Unruh Act claim. Any amended complaint

11

must be filed no later than 30 days from the filing of this order.

12

IT IS SO ORDERED.

13

Dated: August 8, 2012

14

_________________________________
EDWARD J. DAVILA
United States District Judge

15
16
17
18
19
20
21
22
23
24
25
26
27
28

8
Case No. 5:11-cv-00262-EJD
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FIRST AMENDED
COMPLAINT