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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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MELISSA J. EARLL,
Plaintiff,

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v.
EBAY INC.,

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Defendant.

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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

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Strike Plaintiff Melissa J. Earll’s (“Plaintiff”) Second Amended Complaint (“SAC”) pursuant to

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Federal Rules of Civil Procedure 12(b)(6) and 12(f). The court found this matter suitable for

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decision without oral argument pursuant to Civil Local Rule 7-1(b) and previously vacated the

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hearing. The court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331,

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and personal jurisdiction and venue are proper because Defendant is a corporation headquartered in

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Santa Clara County. Having fully reviewed the parties’ briefing, the court GRANTS Defendant’s

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Motion to Dismiss. Because the court grants dismissal with prejudice, Defendant’s Motion to

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Strike is moot.

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

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I.

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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

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applicable to the present motion. See Dkt. No. 76. Plaintiff, a Missouri resident who is deaf, filed

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this putative class action on March 16, 2010 in the Western District of Missouri alleging violations

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of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”) and the California

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Disabled Persons Act, Cal. Civ. Code §§ 54 et seq. (“DPA”). See Dkt. No. 1. Plaintiff based these

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claims on assertions that she, as a deaf individual, was unable to register as an eBay seller because

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United States District Court
For the Northern District of California

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Defendant failed to provide her with an accommodation to its telephonic identity verification

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policy.
The case was transferred to this district in January 2011 and assigned to Judge Jeremy

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Fogel. See Dkt. Nos. 30, 34. After transfer, Plaintiff moved for leave to file an amended

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complaint. Dkt. No. 47. The proposed amended complaint maintained Plaintiff’s original claims

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and added a claim under the Unruh Civil Rights Act, Cal. Civ. Code §§ 51, et seq. (“Unruh Act”).

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Judge Fogel denied Plaintiff’s motion for leave to amend without prejudice, finding that (1) the

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ADA could not afford a remedy to Plaintiff because eBay.com is not a place of public

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accommodation, but (2) Plaintiff may be able to state an independent claim under the Unruh Act if

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she sufficiently pleaded intentional discrimination, and (3) Plaintiff may be able to state

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

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standards of website accessibility than the ADA. Dkt. No. 61 at 3:18-5:22. Judge Fogel granted

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Plaintiff leave to file an amended complaint consistent with his Order. Id.

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This case was transferred from Judge Fogel to this court on September 27, 2011. See Dkt.

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No. 62. On October 5, 2011, Plaintiff filed her FAC alleging violations of the ADA, the DPA, and

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the Unruh Act. Dkt. No. 63. Defendant moved to dismiss Plaintiff’s FAC on October 19, 2011.

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Dkt. No. 66. This court granted Defendant’s motion, dismissing all of Plaintiff’s claims. Dkt. No.

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76. The ADA and DPA claims were dismissed with prejudice because Plaintiff’s complaint

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exceeded the scope of Judge Fogel’s Order with respect to these claims. In regards to the Unruh

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

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Act claim, this court found that “[Plaintiff’s] allegations describe a facially neutral verification

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process with a disparate impact on the deaf community, but they do not demonstrate intentional

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discrimination. Furthermore, the fact that [Plaintiff] contacted eBay’s customer service and

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unsuccessfully requested to have eBay’s otherwise applicable procedures modified is not sufficient

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to state a plausible claim of intentional discrimination.” Having highlighted the flaws in Plaintiff’s

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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

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preserve a potential appeal,” and modifying her Unruh Act claim. Dkt. No. 77. Defendant filed its

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United States District Court
For the Northern District of California

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Motion to Dismiss the SAC on September 20, 2012. Dkt. No. 80. The court now turns to this

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motion.
II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim in the

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complaint with sufficient specificity to “give the defendant fair notice of what the ... claim is and

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the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

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(internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be

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dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

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Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is “proper only

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where there is no cognizable legal theory or an absence of sufficient facts alleged to support a

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cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 606 F.3d 658, 664 (9th

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Cir. 2010) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). In considering whether

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the complaint is sufficient to state a claim, the court must accept as true all of the factual

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allegations contained in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a

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complaint need not contain detailed factual allegations, it “must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

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U.S. at 570).

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

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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

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provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter

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what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities,

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privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code §

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51(b). To maintain an Unruh Act claim independent of an ADA claim, Plaintiff must allege

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“intentional discrimination in public accommodations in violation of terms of the Act.’” Munson

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United States District Court
For the Northern District of California

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v. Del Taco, Inc., 46 Cal.4th 661, 668 (2009) (quoting Harris v. Capital Growth Investors XIV, 52

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Cal. 3d 1142, 1175 (1991)). To state a claim for intentional discrimination Plaintiff must allege

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“willful, affirmative misconduct,” which constitutes more than a disparate impact of a facially

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neutral policy on a particular group. Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824,

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854 (2005).

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In her SAC, Plaintiff removes certain allegations contained in her FAC that this court found

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offset her intentional discrimination claim. In their place Plaintiff includes new allegations

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regarding an in-person meeting she had with eBay’s counsel after the filing of this lawsuit.

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Particularly, Plaintiff now alleges that after that meeting, in which surely her identity was verified,

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Defendant “still refuses to allow Plaintiff to register as an eBay seller.” Dkt. No. 77 ¶ 93. The

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only “plausible conclusion,” according to Plaintiff, is that Defendant “is intentionally

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discriminating against Plaintiff on account of her disability.” Id. Alternatively, Plaintiff suggests

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that Defendant is “no longer applying its policies to achieve its stated purpose of preventing

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fraud”—because Defendant has now verified Plaintiff’s identity in person, nullifying the possibility

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of fraud—but rather is applying its policies “to discriminate against Plaintiff.” Id.

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Defendant contends that Plaintiff’s SAC fails to state a claim for intentional discrimination

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under the Unruh Act because Plaintiff’s allegations still only describe a facially neutral policy that

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has a disparate impact on her. Taking the SAC on its face, this court agrees. That Defendant has

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failed to register Plaintiff as a seller even after meeting her is not, without more, sufficient to

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

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constitute the “willful, affirmative misconduct” required to state a claim of intentional

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discrimination under the Unruh Act.
In dismissing Plaintiff’s Unruh Act claim in her FAC, this court noted that Plaintiff’s

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complaint lacked facts supporting her potential theories of intentional discrimination. Plaintiff has

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failed to remedy this deficiency in her SAC. The absence of supporting factual allegations is fatal

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to Plaintiff’s claim. Particularly, Plaintiff has not alleged that she affirmatively sought to register

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as a seller after this meeting, nor has she included any allegations that Defendant specifically

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denied any renewed request she may have made. More importantly, Plaintiff has failed to include

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United States District Court
For the Northern District of California

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any allegations suggesting that Defendant’s refusal or failure to register her as a seller after their

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meeting was related to her disability. While Plaintiff alleges that her disability is the “only

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plausible explanation,” the court simply is not persuaded by this conclusory contention. See

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Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996) (“[C]onclusory allegations of law

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and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a

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claim.”); accord Iqbal, 555 U.S. at 677–80. In fact, any number of factors could have contributed

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to Defendant’s failure to register Plaintiff as a seller.

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Plaintiff cannot satisfy Rule 8’s requirements by simply alleging that (1) she is deaf, (2) she

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notified Defendant that its seller verification procedure discriminated against deaf persons, (3)

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Defendant had the opportunity to verify her identity, but (4) Defendant nevertheless failed to

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register her as a seller. Rather, she must include some allegation firmly connecting her disability to

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Defendant’s refusal to register her as a seller. In a similar case in this district, Young v. Facebook,

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Inc., a plaintiff suffering from bipolar disorder claimed that Facebook had intentionally

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discriminated against her by terminating her account and addressing her concerns with automated

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responses instead of with real human interaction, which would have been capable of assisting

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persons with mental disabilities. Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1116 (N.D. Cal.

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2011). The court in that case dismissed the plaintiff’s Unruh Act claim, explaining that despite her

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vivid description of the difficulty she encountered with Facebook’s customer service system as a

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result of her disability, she had not alleged that Facebook had treated her differently because of her

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