Earll v. eBay, Inc., a Delaware Corporation

Filing 86

ORDER granting 80 Motion to Dismiss. All of the causes of action are DISMISSED WITHOUT LEAVE TO AMEND. Since this order effectively resolves the case, judgment will be entered in favor of Defendant. The Clerk shall close this file. Signed by Judge Edward J. Davila on 12/20/12. (ejdlc4, COURT STAFF) (Filed on 12/20/2012)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 9 SAN JOSE DIVISION 10 11 MELISSA J. EARLL, Plaintiff, 12 13 14 v. EBAY INC., 15 Defendant. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 5:11-CV-00262-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT [Re: Docket No. 80] Presently before the court is Defendant eBay Inc.’s (“Defendant”) Motion to Dismiss and 19 Strike Plaintiff Melissa J. Earll’s (“Plaintiff”) Second Amended Complaint (“SAC”) pursuant to 20 Federal Rules of Civil Procedure 12(b)(6) and 12(f). The court found this matter suitable for 21 decision without oral argument pursuant to Civil Local Rule 7-1(b) and previously vacated the 22 hearing. The court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 23 and personal jurisdiction and venue are proper because Defendant is a corporation headquartered in 24 Santa Clara County. Having fully reviewed the parties’ briefing, the court GRANTS Defendant’s 25 Motion to Dismiss. Because the court grants dismissal with prejudice, Defendant’s Motion to 26 Strike is moot. 27 28 1 Case No.: 5:11-CV-00262-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 I. 2 BACKGROUND The background of this case was thoroughly presented in this court’s Order granting Defendant’s Motion to Dismiss First Amended Complaint, and is repeated only to the extent it is 4 applicable to the present motion. See Dkt. No. 76. Plaintiff, a Missouri resident who is deaf, filed 5 this putative class action on March 16, 2010 in the Western District of Missouri alleging violations 6 of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”) and the California 7 Disabled Persons Act, Cal. Civ. Code §§ 54 et seq. (“DPA”). See Dkt. No. 1. Plaintiff based these 8 claims on assertions that she, as a deaf individual, was unable to register as an eBay seller because 9 United States District Court For the Northern District of California 3 Defendant failed to provide her with an accommodation to its telephonic identity verification 10 11 policy. The case was transferred to this district in January 2011 and assigned to Judge Jeremy 12 Fogel. See Dkt. Nos. 30, 34. After transfer, Plaintiff moved for leave to file an amended 13 complaint. Dkt. No. 47. The proposed amended complaint maintained Plaintiff’s original claims 14 and added a claim under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51, et seq. (“Unruh Act”). 15 Judge Fogel denied Plaintiff’s motion for leave to amend without prejudice, finding that (1) the 16 ADA could not afford a remedy to Plaintiff because eBay.com is not a place of public 17 accommodation, but (2) Plaintiff may be able to state an independent claim under the Unruh Act if 18 she sufficiently pleaded intentional discrimination, and (3) Plaintiff may be able to state 19 independent claims under the DPA if she alleged a violation of a California law that requires higher 20 standards of website accessibility than the ADA. Dkt. No. 61 at 3:18-5:22. Judge Fogel granted 21 Plaintiff leave to file an amended complaint consistent with his Order. Id. 22 This case was transferred from Judge Fogel to this court on September 27, 2011. See Dkt. 23 No. 62. On October 5, 2011, Plaintiff filed her FAC alleging violations of the ADA, the DPA, and 24 the Unruh Act. Dkt. No. 63. Defendant moved to dismiss Plaintiff’s FAC on October 19, 2011. 25 Dkt. No. 66. This court granted Defendant’s motion, dismissing all of Plaintiff’s claims. Dkt. No. 26 76. The ADA and DPA claims were dismissed with prejudice because Plaintiff’s complaint 27 exceeded the scope of Judge Fogel’s Order with respect to these claims. In regards to the Unruh 28 2 Case No.: 5:11-CV-00262-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 Act claim, this court found that “[Plaintiff’s] allegations describe a facially neutral verification 2 process with a disparate impact on the deaf community, but they do not demonstrate intentional 3 discrimination. Furthermore, the fact that [Plaintiff] contacted eBay’s customer service and 4 unsuccessfully requested to have eBay’s otherwise applicable procedures modified is not sufficient 5 to state a plausible claim of intentional discrimination.” Having highlighted the flaws in Plaintiff’s 6 Unruh Act claim, this court dismissed it with leave to amend. Plaintiff filed her SAC on September 6, 2012, leaving her ADA and DPA claims “to 8 preserve a potential appeal,” and modifying her Unruh Act claim. Dkt. No. 77. Defendant filed its 9 United States District Court For the Northern District of California 7 Motion to Dismiss the SAC on September 20, 2012. Dkt. No. 80. The court now turns to this 10 11 motion. II. LEGAL STANDARD 12 Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim in the 13 complaint with sufficient specificity to “give the defendant fair notice of what the ... claim is and 14 the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 15 (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be 16 dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 17 Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is “proper only 18 where there is no cognizable legal theory or an absence of sufficient facts alleged to support a 19 cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 606 F.3d 658, 664 (9th 20 Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In considering whether 21 the complaint is sufficient to state a claim, the court must accept as true all of the factual 22 allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a 23 complaint need not contain detailed factual allegations, it “must contain sufficient factual matter, 24 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 25 U.S. at 570). 26 27 28 3 Case No.: 5:11-CV-00262-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 2 III. DISCUSSION Because the court previously dismissed Plaintiff’s ADA and DPA claims with prejudice, the Unruh Act claim is the only remaining cause of action susceptible to dismissal. The Unruh Act 4 provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter 5 what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, 6 privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 7 51(b). To maintain an Unruh Act claim independent of an ADA claim, Plaintiff must allege 8 “intentional discrimination in public accommodations in violation of terms of the Act.’” Munson 9 United States District Court For the Northern District of California 3 v. Del Taco, Inc., 46 Cal.4th 661, 668 (2009) (quoting Harris v. Capital Growth Investors XIV, 52 10 Cal. 3d 1142, 1175 (1991)). To state a claim for intentional discrimination Plaintiff must allege 11 “willful, affirmative misconduct,” which constitutes more than a disparate impact of a facially 12 neutral policy on a particular group. Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 13 854 (2005). 14 In her SAC, Plaintiff removes certain allegations contained in her FAC that this court found 15 offset her intentional discrimination claim. In their place Plaintiff includes new allegations 16 regarding an in-person meeting she had with eBay’s counsel after the filing of this lawsuit. 17 Particularly, Plaintiff now alleges that after that meeting, in which surely her identity was verified, 18 Defendant “still refuses to allow Plaintiff to register as an eBay seller.” Dkt. No. 77 ¶ 93. The 19 only “plausible conclusion,” according to Plaintiff, is that Defendant “is intentionally 20 discriminating against Plaintiff on account of her disability.” Id. Alternatively, Plaintiff suggests 21 that Defendant is “no longer applying its policies to achieve its stated purpose of preventing 22 fraud”—because Defendant has now verified Plaintiff’s identity in person, nullifying the possibility 23 of fraud—but rather is applying its policies “to discriminate against Plaintiff.” Id. 24 Defendant contends that Plaintiff’s SAC fails to state a claim for intentional discrimination 25 under the Unruh Act because Plaintiff’s allegations still only describe a facially neutral policy that 26 has a disparate impact on her. Taking the SAC on its face, this court agrees. That Defendant has 27 failed to register Plaintiff as a seller even after meeting her is not, without more, sufficient to 28 4 Case No.: 5:11-CV-00262-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT 1 constitute the “willful, affirmative misconduct” required to state a claim of intentional 2 discrimination under the Unruh Act. In dismissing Plaintiff’s Unruh Act claim in her FAC, this court noted that Plaintiff’s 4 complaint lacked facts supporting her potential theories of intentional discrimination. Plaintiff has 5 failed to remedy this deficiency in her SAC. The absence of supporting factual allegations is fatal 6 to Plaintiff’s claim. Particularly, Plaintiff has not alleged that she affirmatively sought to register 7 as a seller after this meeting, nor has she included any allegations that Defendant specifically 8 denied any renewed request she may have made. More importantly, Plaintiff has failed to include 9 United States District Court For the Northern District of California 3 any allegations suggesting that Defendant’s refusal or failure to register her as a seller after their 10 meeting was related to her disability. While Plaintiff alleges that her disability is the “only 11 plausible explanation,” the court simply is not persuaded by this conclusory contention. See 12 Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“[C]onclusory allegations of law 13 and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a 14 claim.”); accord Iqbal, 555 U.S. at 677–80. In fact, any number of factors could have contributed 15 to Defendant’s failure to register Plaintiff as a seller. 16 Plaintiff cannot satisfy Rule 8’s requirements by simply alleging that (1) she is deaf, (2) she 17 notified Defendant that its seller verification procedure discriminated against deaf persons, (3) 18 Defendant had the opportunity to verify her identity, but (4) Defendant nevertheless failed to 19 register her as a seller. Rather, she must include some allegation firmly connecting her disability to 20 Defendant’s refusal to register her as a seller. In a similar case in this district, Young v. Facebook, 21 Inc., a plaintiff suffering from bipolar disorder claimed that Facebook had intentionally 22 discriminated against her by terminating her account and addressing her concerns with automated 23 responses instead of with real human interaction, which would have been capable of assisting 24 persons with mental disabilities. Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1116 (N.D. Cal. 25 2011). The court in that case dismissed the plaintiff’s Unruh Act claim, explaining that despite her 26 vivid description of the difficulty she encountered with Facebook’s customer service system as a 27 result of her disability, she had not alleged that Facebook had treated her differently because of her 28 5 Case No.: 5:11-CV-00262-EJD ORDER GRANTING DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT

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