Access Living of Metropolitan Chicago et al v. Uber Technologies, Inc. et al
Filing
157
MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 12/17/2018: Uber's motion to dismiss 117 is granted in part, denied in part, and its motion for judgment on the pleadings 119 is granted in part, denied in part. Acces s Living and Patrick's claims are dismissed without prejudice, but Garcia and Cooper may pursue claims for injunctive relief under sections 12182 and 12184. [For further detail see attached order.] A status hearing is set for January 15, 2019 at 9:30 a.m. Notices mailed. (psm, )
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ACCESS LIVING OF METROPOLITAN
CHICAGO, et al.,
Plaintiffs,
No. 16 CV 9690
Judge Manish S. Shah
v.
UBER TECHNOLOGIES, INC. and RASIER,
LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs are people with disabilities who use motorized wheelchairs and
Access Living of Metropolitan Chicago, a non-profit organization that advocates for
people with disabilities. They claim Uber is violating the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq., by not providing people who use motorized wheelchairs
with access to its services that is equal to the access it provides to people who do not.
Uber moves to dismiss the complaint based on a lack of standing or, in the alternative,
for judgment on the pleadings.
I.
Legal Standards
Uber moves to dismiss the complaint under Rule 12(b)(1) for a lack of subject-
matter jurisdiction.1 Plaintiffs bear the burden of establishing the court’s jurisdiction.
Technically, the motion is untimely, see Fed. R. Civ. P. 12(b) (requiring Rule 12(b) motions
to be made before a responsive pleading), and better understood as a “suggestion” that the
court lacks jurisdiction. See S.J. v. Hamilton Cty., Ohio, 374 F.3d 416, 418 n.1 (6th Cir. 2004)
(“The district court properly construed this late-filed motion as a ‘suggestion’ that it lacked
subject-matter jurisdiction.”); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss the action.”).
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Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 589 (7th Cir.
2014). To survive Uber’s facial challenge to jurisdiction, the complaint must plausibly
allege standing. See Silha v. ACT, Inc., 807 F.3d 169, 173–74 (7th Cir. 2015). Uber’s
motion for judgment on the pleadings under Rule 12(c) is subject to the same standard
as a Rule 12(b)(6) motion to dismiss, meaning that it must be granted “only if it
appears beyond doubt that the plaintiff cannot prove any facts that would support
his claim for relief.” Hayes v. City of Chicago, 670 F.3d 810, 813 (7th Cir. 2012)
(citation omitted). In resolving both motions, I consider only the pleadings, documents
incorporated by reference in the pleadings, and matters subject to judicial notice,
accepting the well-pleaded facts as true and drawing all reasonable inferences in
plaintiffs’ favor. Milwaukee Police Ass’n v. Flynn, 863 F.3d 636, 640 (7th Cir. 2017);
Silha, 807 F.3d at 173.2
II.
Facts
Uber operates a rideshare app that allows users to request transportation and
then connects them with a vehicle and a driver. [1] ¶ 5.3 Uber’s services are available
to people who download the app on their smartphones and open an account with a
credit card. [1] ¶ 21. Uber users can request specific kinds of rides, including some
that vary in the type of vehicle that arrives. [1] ¶¶ 21–23. UberWAV is one of these
Uber’s motion presents a facial challenge to jurisdiction, not a factual one, [112] at 10
(“Plaintiffs fail to plausibly allege standing.”), confining my review to the pleadings. See Apex
Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (“In the context of
facial challenges . . . the court does not look beyond the allegations in the complaint.”).
2
Bracketed numbers refer to entries on the district court docket. Page numbers are taken
from the CM/ECF header at the top of filings. Facts are taken from the complaint, [1].
3
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special requests, which allows users to request a wheelchair-accessible vehicle. [1]
¶ 21.
Uber does not own the vehicles used for its rides, but it controls all aspects of
the rides. [1] ¶¶ 5, 24.4 Uber sets requirements for the type and age of vehicles,
conducts mandatory vehicle inspections, and helps drivers arrange leases for Uberapproved vehicles. [1] ¶¶ 25, 28. Uber regulates its drivers by conducting background
checks and setting requirements for drivers’ age, experience, licensing, and driving
records. [1] ¶ 26. Uber instructs the drivers on the expected quality of the rides—
issuing community guidelines, making recommendations about the amenities to
stock in the vehicles and the radio station choice, and imposing cleanliness
requirements. [1] ¶ 28. Uber can deactivate drivers who break its rules. [1] ¶¶ 27–28.
Uber drivers and passengers do not negotiate the ride’s fare; instead, Uber sets the
cost of the trip using a certain formula. [1] ¶ 24.
Access Living of Metropolitan Chicago is a non-profit organization that
advocates for people with disabilities, seeking to advance their civil rights and help
them live more independently. [1] ¶ 9. It offers independent living services, public
education programs, and individualized and systemic advocacy, and it enforces civil
rights on behalf of those with disabilities. [1] ¶ 9. Fourteen percent of Access Living’s
employees and 20 percent of its board members either use a motorized wheelchair or
cannot transfer to a standard vehicle from their manual wheelchairs. [1] ¶ 10.
UberTAXI refers users to Chicago’s taxi dispatch service to request a licensed taxi, and it is
different from all of Uber’s other services. [1] ¶ 23. For that reason, the references to Uber’s
services in this opinion do not include UberTAXI.
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Motorized wheelchairs are heavy and cannot fit into the trunk of a car, so they require
ramps and lifts to be put inside vehicles. [1] ¶ 8. Uber is “virtually unavailable” to
people who use motorized wheelchairs—it provided them just 14 rides from
September 2011 to August 2015. [1] ¶¶ 29, 56. The lack of accessible Uber rides
requires Access Living to incur increased costs to transport its staff and board
members who require accessible rides. [1] ¶ 59. In August 2016, Access Living took
this issue to Uber. [1] ¶ 58. Access Living showed Uber the app, which at the time
had no available accessible vehicles, and asked it to provide motorized-wheelchair
users with services equivalent to those it offers others. [1] ¶ 58. Uber responded that
it had no intention of providing equivalent response times. [1] ¶ 58.
Michelle Garcia, Justin Cooper, and Rahnee Patrick are all Chicago residents
who work or volunteer at Access Living, and they all have disabilities that require
use of a motorized wheelchair. [1] ¶¶ 14–16, 32–33, 38–39, 45. Patrick can usually
transfer from her wheelchair to a standard vehicle, but her husband, who also uses a
motorized wheelchair, cannot. [1] ¶ 39. Garcia, Cooper, and Patrick want to use Uber
(Patrick with her husband), and they have the smartphones and credit cards they
need to do it. [1] ¶¶ 34, 44, 49. But none of them have downloaded the Uber app,
because they believe that Uber does not provide equivalent services to people who use
motorized wheelchairs. [1] ¶¶ 37, 44, 49. They each found out about the lack of
accessible services in different ways.
Garcia heard from other motorized-wheelchair users at Access Living that they
cannot use Uber because it does not have accessible vehicles, and Access Living
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colleagues showed Garcia the Uber app in September 2016, which at the time had
just one accessible vehicle available in Chicago. [1] ¶¶ 35–36. Cooper once wanted to
take an Uber ride to the mall, but he believed he could not because he had heard that
Uber does not offer equivalent services to motorized-wheelchair users. [1] ¶ 46. He
believed that because he knew about an unsuccessful effort to pass an ordinance
requiring equivalent service and that Uber was lobbying to be free of such a
requirement. [1] ¶ 47. In October 2016, Cooper saw the Uber app on someone else’s
phone, and the app showed no available accessible vehicles. [1] ¶ 48. Patrick’s
husband downloaded Uber to take advantage of a promotion Uber offered for a
theater event, but he did not complete registration because his colleagues from the
theater told him that Uber does not accommodate motorized-wheelchair users. [1]
¶ 40–42. In October 2016, Patrick’s husband saw a screenshot of the Uber app,
showing that there were no available accessible vehicles. [1] ¶ 43.
Plaintiffs allege violations of the ADA and request declaratory and injunctive
relief against Uber and its subsidiary.
III.
Standing
Uber argues that none of the plaintiffs have standing to bring this suit. The
constitution limits federal-court jurisdiction to controversies brought by plaintiffs
who “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).
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A.
Injury-in-Fact
1.
Individual Plaintiffs
Plaintiffs must allege an injury in fact that is “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Because they seek
prospective injunctive relief, plaintiffs must allege a “real and immediate” threat of
future ADA violations. Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1074 (7th Cir.
2013). “Past exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992) (citation
omitted). So on top of a past injury, a plaintiff must also allege that the discrimination
will continue and injure her in the future. Scherr, 703 F.3d at 1074. This threat of
future injury can be shown by an intent to return to or use the public accommodation,
id., but it can also be shown by establishing that the plaintiff is reasonably deterred
from the accommodation because of the discrimination. See Chapman v. Pier 1
Imports (U.S.) Inc., 631 F.3d 939, 949 (9th Cir. 2011) (en banc); Scherr v. Marriot
Int’l, Inc., 833 F.Supp.2d 945, 951 (N.D. Ill. 2011), aff’d, 703 F.3d 1069 (7th Cir. 2013).
That is because if a plaintiff alleges that she is presently deterred and that the
discrimination will continue, the threat of future discrimination is both real and
immediate.
The individual plaintiffs want to use the Uber app but are deterred from doing
so because Uber does not provide them with equal access to its services, in violation
of the ADA. See [1] ¶¶ 11, 84. Deterrence can be an injury in fact. See Pickern v.
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Holiday Quality Foods Inc., 293 F.3d 1133, 1137–38 (9th Cir. 2002) (“We hold that in
stating that he is currently deterred from attempting to gain access to the Paradise
store, Doran has stated sufficient facts to show concrete, particularized injury.”). See
also Laidlaw, 528 U.S. at 181–85 (finding allegations that defendant’s pollution
deterred plaintiffs from enjoying a nearby river sufficient to establish an injury-infact).
For a deterrence injury to be sufficiently concrete and non-speculative, the
deterrence must be reasonable. See Laidlaw, 528 U.S. at 184–85.5 It is reasonable
that Garcia’s and Cooper’s observations of the lack of accessible vehicles available on
the Uber app, [1] ¶¶ 36, 48, combined with the fact that they heard about the
accessibility problem from others, [1] ¶¶ 35, 46–47, cause them to refrain from using
Uber’s services. But Patrick does not allege that she ever knew about Uber’s alleged
ADA violations or the lack of accessible vehicles—she only alleges what her husband
knew—and it is not reasonable for someone to be deterred by conduct she never knew
about. Patrick’s claims are dismissed without prejudice for lack of standing. See
Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (ADA plaintiffs “must at least
prove knowledge of the barriers”).
Garcia and Cooper did not have to download the app and request an Uber ride
to be injured. They saw the app, learned of the lack of wheelchair-accessible rides,
A plaintiff pleading a deterrence injury must also establish that she would have been subject
to the defendant’s unlawful conduct. Laidlaw, 528 U.S. at 184. See also Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 419 (2013). Plaintiffs have plausibly alleged that if they were not
deterred and actually went forward with requesting an Uber ride, they would be subjected to
discrimination because of an inadequate supply of wheelchair-accessible rides on the app.
5
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and want to use the app in the future but reasonably believe they cannot. That is
sufficient.6 Their allegations that they are currently deterred from using Uber and
that Uber has no intention of making modifications establish the “real and
immediate” threat of future violations required to seek prospective injunctive relief.
See also Chapman, 631 F.3d at 950 (“Just as a disabled individual who intends to
return to a noncompliant facility suffers an imminent injury from the facility’s
‘existing or imminently threatened noncompliance with the ADA,’ a plaintiff who is
deterred from patronizing a store suffers the ongoing ‘actual injury’ of lack of access
to the store.” (citation omitted)). And though “‘some day’ intentions” do not establish
an actual or immediate injury, Lujan, 504 U.S. at 564, plaintiffs allege their desire to
use the Uber app in the present tense, meaning now, not “some day.” See Laidlaw,
528 U.S. at 184.7 Uber points to Scherr, where the court found the plaintiff did not
sufficiently allege that she intended to visit certain hotels in the future, 703 F.3d at
1075, but plaintiffs’ desires to use Uber’s services, which are currently available and
alleged to be widely used in the city in which they live, are not speculative. And Uber
said “it had no intention of providing equivalent response times,” [1] ¶ 58, which is
Perhaps they intentionally avoided the arbitration agreement that would have accompanied
their download and acceptance of the terms of service so that they could seek redress in the
court system, but that does not mean they were not injured.
6
Uber argues that the individual plaintiffs “do not even assert that they would use the Uber
App but for the allegedly deficient numbers of Drivers” with accessible vehicles. [112] at 12.
The individual plaintiffs each allege that they “want” to use Uber and that they have not
downloaded Uber because it does not provide equivalent services to people with motorized
wheelchairs. [1] ¶¶ 34, 37, 44, 49. The reasonable inference from those combined allegations
is that they would download and use Uber but for the alleged discrimination.
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sufficient to establish that the discrimination will continue.8 Combined, these
allegations are sufficient to plausibly establish Garcia and Cooper’s injuries in fact.
2.
Access Living
Access Living bases its organizational standing in part on the injury it suffered
to its mission because of Uber’s alleged actions. An organization suffers an injury-infact when the defendant’s actions “perceptively impair[ ]” its ability to carry out its
usual activities and cause a “consequent drain on the organization’s resources.”
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). See also Vill. of Bellwood
v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990). It is not enough for an organization
to allege “simply a setback to the organization’s abstract social interests.” Havens,
455 U.S. at 379. Access Living’s mission is to advance the civil rights of people with
disabilities and to foster their ability to live independently. [1] ¶ 80. Because of Uber’s
alleged discrimination, Access Living has had to “incur increased costs” to transport
its employees who use motorized wheelchairs, diverting those resources that would
otherwise be spent in pursuit of its mission. [1] ¶¶ 59, 78.9
In Scherr, the plaintiff did not have standing to sue certain hotels because she did not allege
an intent to return to them. “[A]t no point [did Scherr] claim that she would visit a particular
Courtyard Marriott but for the alleged ADA violations.” 703 F.3d at 1075. This is consistent
with the notion that being deterred from a specific accommodation is a sufficiently concrete
and particularized injury for constitutional purposes. In Faircloth v. McDonald’s Corp. &
McDonald’s USA LLC, No. 18 C 1831, 2018 WL 5921230, at *3 (N.D. Ill. Nov. 13, 2018), the
plaintiff did not visit the public accommodation during the hours when the discrimination
occurred and did not allege a reasonable prospect of encountering the barriers in the future.
The plaintiff lacked both a past injury and a prospect of future discrimination. Garcia and
Cooper are different—they know about the accessibility problem with Uber in Chicago, saw
it for themselves, want to use the service, and cannot because of Uber’s decision to stay the
course. This is an actual controversy between litigants.
8
Uber argues that plaintiffs cannot plausibly allege “that the availability of the uberWAV
option somehow decreased the transportation options for riders who require WAVs for
9
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Uber argues that Access Living’s injury only amounts to a setback to an
abstract social interest, particularly because the complaint does not allege that the
diverted money would go to specific services. But that part of the injury is reasonably
inferred—if Access Living did not spend extra money on employee transportation due
to Uber’s discrimination, that money would go to the services it provides in support
of its mission. Uber cites nothing to suggest that Access Living must allege the
specific activities from which its resources have been diverted. Access Living alleges
more than an abstract injury to its mission of civil rights for those with disabilities—
it alleges that Access Living must pay increased transportation costs for its
employees who are unable to use Uber because of discrimination. That is enough for
Article III.
B.
Causation and Redressability
Plaintiffs must also allege that their injuries are causally connected to Uber’s
actions and that a decision in their favor is likely to redress their injuries. These two
requirements “overlap as two sides of a causation coin” because “if a [defendant’s]
action causes an injury, enjoining the action usually will redress that injury.”
Carpenters Indus. Council v. Zinke, 854 F.3d 1, 6 n.1 (D.C. Cir. 2017) (citation
omitted). Causation requires plaintiffs’ injuries to be “fairly traceable to the
challenged action of the defendant, and not the result of the independent action of
some third party before the court,” Lujan, 504 U.S. at 560 (citations and alterations
transportation and forced Access Living to increase the transportation services it provides.”
[112] at 15 (emphasis in original). But the complaint alleges that Uber has been replacing
more traditional forms of transportation, like taxis. [1] ¶ 55. So it is plausible that Uber has
increased Access Living’s transportation costs for its motorized-wheelchair-bound employees.
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removed), but the defendant’s actions do not have to be “the very last step in the chain
of causation.” Bennett v. Spear, 520 U.S. 154, 169 (1997). Injuries may be “fairly
traceable” to a defendant when the injury is “produced by determinative or coercive
effect upon the action of someone else.” Id. at 169.
Uber’s main argument against causation and redressability is that its drivers
are independent third-parties who caused plaintiffs’ alleged injuries. Its reasoning is
that the number of accessible vehicles available on the Uber app at any given moment
is up to the drivers, since they control what vehicles they choose to drive and when.
So, Uber argues, an injunction against Uber could not increase the number of
accessible rides, because Uber does not control drivers’ choices. But Uber’s argument
hinges on a fact not alleged in the complaint—that Uber drivers control which
vehicles they use. Uber says that it is “common knowledge” that its drivers
“determine whether, when, where, how frequently, and with which vehicles to seek
and accept ride requests via the Uber app.” [112] at 16 (emphasis removed). It does
not cite to allegations in the complaint for that factual assertion, and in making a
facial challenge to standing, Uber cannot insert a factual allegation that contradicts
plaintiffs’ allegations by labeling it “common knowledge.” The complaint alleges that
Uber does not own its drivers’ cars, [1] ¶ 5, but it also alleges that Uber “maintains
control over . . . the vehicle.” [1] ¶ 5. See also [1] ¶¶ 24 (“Uber controls all aspects of
its travel service.”), 25 (“Uber decides the type and maximum age of car for each of
its services.”).
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But even if Uber drivers’ own choices of vehicle are what cause plaintiffs’
injuries, the cause can be attributed to Uber if its policies or actions have a
determinative or coercive effect on the drivers’ choices. The complaint alleges several
ways Uber controls its drivers. See [1] ¶¶ 24–28. These allegations suggest that Uber
drivers are not independent of Uber and, as a result, their choices do not break the
chain of causation traceable to Uber. And if Uber caused plaintiffs’ injuries, then an
injunction against Uber—one that directs Uber to use its alleged control over drivers
to cure the inadequate supply of wheelchair-accessible rides—is plausibly likely to
redress the injuries.
Nor is Access Living’s injury “self-inflicted,” even if it is not required to pay for
its employees’ transportation. “Standing is defeated only if it is concluded that the
injury is so completely due to the plaintiff’s own fault as to break the causal chain.”
13A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 3531.5 (3d ed.). The complaint alleges that Access Living incurs “increased costs” to
transport its employees due to Uber’s discrimination, [1] ¶ 59, suggesting that it paid
transportation costs before Uber’s discrimination and did not take up the practice
only to self-inflict an injury. Access Living’s alleged injuries are not completely its
own fault.
IV.
Merits
The ADA’s “sweeping purpose” is to “remedy widespread discrimination
against disabled individuals.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 674–75 (2001).
It “forbids discrimination against disabled individuals in major areas of public life,
among them employment (Title I of the Act), public services (Title II), and public
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accommodations (Title III).” Id. Plaintiffs bring their claims under two sections of
Title III. Section 12182 prohibits discrimination against people with disabilities in
public accommodations, and section 12184 prohibits the same in certain public
transportation services. See 42 U.S.C. §§ 12182, 12184.
A.
Private Right of Action
Title III authorizes “any person who is being subjected to discrimination on the
basis of disability in violation” of Title III to bring a civil action. 42 U.S.C.
§ 12188(a)(1). Uber argues that Title III does not authorize Access Living to bring
suit, because the complaint does not allege that it is being “subjected to
discrimination.”10 Access Living responds only that its “claim stems from economic
harm and frustration of mission,” as argued in response to Uber’s standing motion.
[129] at 19. Whether Access Living has constitutional standing is a separate question
from whether Title III allows it to bring a suit. The former questions whether the
constitution grants federal courts the power to hear the case, and the latter questions
whether the statute allows a particular plaintiff to enforce it. See Bank of America
Corp. v. City of Miami, Fla., 137 S.Ct. 1296, 1302 (2017). A plaintiff might meet the
requirements of one and not the other, but its lawsuit can only proceed with both.
Courts have held that Title II confers a private right of action on everyone
who meets constitutional standing requirements. See A Helping Hand, LLC v.
I do not reach the arguments about Patrick’s ability to bring a Title III claim because she
has not alleged enough to give her constitutional standing. But, I note that section 12184,
unlike section 12182, does not contain a discrimination-by-association provision, and
Patrick’s claim is based entirely on her husband’s disability. [1] ¶ 44. And for her section
12182 claim, Patrick does not allege that Uber knew of either her husband’s disability or her
association to him. See 42 U.S.C. § 12182(b)(1)(E).
10
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Baltimore Cty., MD, 515 F.3d 356, 363 (4th Cir. 2008); MX Grp., Inc. v. City of
Covington, 293 F.3d 326, 334 (6th Cir. 2002); Innovative Health Sys., Inc. v. City of
White Plains, 117 F.3d 37, 47 (2d Cir. 1997). See also Discovery House, Inc. v. Consol.
City of Indianapolis, 319 F.3d 277, 279 (7th Cir. 2003) (declining to “agree or disagree
with those courts”). Some courts seem to find the same true of Title III. See, e.g.,
Equal Rights Ctr. v. Equity Residential, 483 F.Supp.2d 482, 487 n.7 (D. Md. 2007).
But Uber points to cases holding that Title III is different from Title II and
that its private-right-of-action requirements are not co-extensive with those of
constitutional standing. See Small v. Gen. Nutrition Companies, Inc., 388 F.Supp.2d
83, 92–93 (E.D.N.Y. 2005). See also Equal Rights Ctr. v. Equity Residential, 798
F.Supp.2d 707, 728–30 (D. Md. 2012); Clark v. McDonald’s Corp., 213 F.R.D. 198, 210
(D.N.J. 2003). These courts primarily base their holdings on the statutory differences
between Title II and Title III. Title II’s enforcement provision provides a right of
action to “any person alleging discrimination on the basis of disability,” 42 U.S.C.
§ 12133, but Title III’s enforcement provision is narrower, providing a right of action
to “any person who is being subjected to discrimination on the basis of disability.” 42
U.S.C. § 12188(a)(1). This difference in wording shows that Title III “does more than
limit the class of persons entitled to sue to those who can trace their injury to
proscribed discrimination; it limits the class to those who are being, or are under
threat of being, subjected to proscribed discrimination.” Clark, 213 F.R.D. at 211
(emphasis in original). I find this reasoning persuasive. Title III requires a plaintiff
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to have been herself “subjected to discrimination on the basis of disability” to bring
suit.
Access Living has not alleged that it was subjected to discrimination by Uber.
As Uber points out, Access Living alleges only that its injuries flowed from Uber’s
alleged discrimination against others.11 Because Title III does not allow private rights
of action for second-hand harm from discrimination, Access Living cannot bring its
claim.
B.
Equality under Title III
In response to the complaint’s request for “equivalent services,” Uber asserts
that “[t]he plain language of Sections 12182 and 12184, the applicable regulations,
and relevant case law all show that Title III requires ‘equivalent service’ only in two
narrow, mutually-exclusive circumstances.” [138] at 6–7 (emphasis in original).
Those exceptions, it goes on to say, are when an entity operates a fixed-route or
demand-responsive transportation service but is not primarily a transportation
business, 42 U.S.C. § 12182(b)(2)(B)–(C), and when an entity that is primarily a
transportation business purchases or leases a new van that is not wheelchairaccessible, 42 U.S.C. § 12184(b)(3), (5).
The ADA’s requirements are not as black and white as Uber contends. See
Andrews v. Blick Art Materials, LLC, 268 F.Supp.3d 381, 403 (E.D.N.Y. 2017) (ADA’s
anti-discrimination provisions are “not simple checklists of clear-cut rules” but rather
People without disabilities can bring claims under Title III if they are discriminated
against because of their association with someone who does have a disability, 42 U.S.C.
§ 12182(b)(1)(E), but Access Living does not allege that kind of discrimination.
11
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“standards that are meant to be applied contextually and flexibly”). The ADA tries to
provide people with equal access when its achievement is reasonable. See 42 U.S.C.
§§ 12182, 12184 (providing that people with disabilities must not be robbed of “full
and equal enjoyment” of certain goods and services on the basis of their disabilities);
Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37
F.3d 12, 19 (1st Cir. 1994) (“In drafting Title III, Congress intended that people with
disabilities have equal access to the array of goods and services offered by private
establishments and made available to those who do not have disabilities.”). This
access “does not encompass the notion that persons with disabilities must achieve the
identical result or level of achievement of nondisabled persons, but does mean that
persons with disabilities must be afforded equal opportunity to obtain the same
result.” S. Rep. No. 101-116, 1989 WL 1176422, at *57 (1989). See also Toomer v. City
Cab, 443 F.3d 1191, 1195 (10th Cir. 2006) (“[T]he ADA does not seek to equalize
without exception. The ADA does not require all accommodation at any cost for all
disabilities.” (emphasis in original)). So I agree with Uber that Title III does not
always require equality, but it does require entities to provide equal access to people
with disabilities when reasonable.
C.
Section 12182 – Public Accommodation
1.
Whether Uber Operates a Place of Public Accommodation
Section 12182 prohibits discrimination by “any person who owns, leases (or
leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). “Public
accommodation” is defined by a list of different kinds of entities, including
restaurants, zoos, stadiums, and, most applicable here, travel services. 42 U.S.C.
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§ 12181(7). Uber argues that it does not operate a place of public accommodation, and
its argument depends on the assertion that such places must be real, physical spaces.
The Third, Fifth, Sixth, and Ninth Circuits agree with Uber that a place of
public accommodation must be a physical space. See Magee v. Coca-Cola
Refreshments USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016), cert. denied, 138 S.Ct. 55
(2017); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114–15 (9th Cir.
2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 613–14 (3d Cir. 1998); Parker v.
Metro. Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (en banc). They reason that
“[e]very term listed in § 12181(7) . . . is a physical place open to public access.” Parker,
121 F.3d at 1014. Applying the canon of noscitur a sociis—meaning, “[i]t is known
from its associates”—these courts held that non-physical establishments or entities
are not places of public accommodation within the meaning of Title III. Id.
The First Circuit, however, has concluded otherwise. See Carparts, 37 F.3d at
19. Its reasoning is that the terms listed in section 12181(7) are not all only physical
places—for example, a “travel service” can conduct its business by telephone or
correspondence—and “[i]t would be irrational to conclude that persons who enter an
office to purchase services are protected by the ADA, but persons who purchase the
same services over the telephone or by mail are not.” Id. The court found its holding
supported by the ADA’s legislative history, because “[i]n drafting Title III, Congress
intended that people with disabilities have equal access to the array of goods and
services offered by private establishments and made available to those who do not
have disabilities.” Id. The Second Circuit has cited Carparts approvingly, though it
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has not committed itself to the Carparts position. See Pallozzi v. Allstate Life Ins. Co.,
198 F.3d 28, 32 (2d Cir. 1999).
The Seventh Circuit has twice suggested that it agrees with the First Circuit.
In Doe v. Mutual of Omaha Insurance Co., 179 F.3d 557, 559 (7th Cir. 1999), the court
explained that section 12182’s meaning is “that the owner or operator of a store, hotel,
restaurant, dentist’s office, travel agency, theater, Web site, or other facility (whether
in physical space or in electronic space) that is open to the public cannot exclude
disabled persons from entering the facility and, once in, from using the facility in the
same way that the nondisabled do.” (citing Carparts, 37 F.3d at 19) (emphasis added).
The court treated the defendant insurance company as a place of public
accommodation but reversed the lower court’s judgment in favor of plaintiffs on other
grounds. Id. at 558–59, 64.
In Morgan v. Joint Administration Board, 268 F.3d 456, 459 (7th Cir. 2001),
the court said:
The defendant asks us to interpret “public accommodation” literally, as
denoting a physical site, such as a store or a hotel, but we have already
rejected that interpretation. An insurance company can no more refuse
to sell a policy to a disabled person over the Internet than a furniture
store can refuse to sell furniture to a disabled person who enters the
store. The site of the sale is irrelevant to Congress’s goal of granting the
disabled equal access to sellers of goods and services. What matters is
that the good or service be offered to the public.
Id. (citations omitted). In doing so, the court cited to both Doe and Carparts, as well
as the other circuits’ conflicting decisions in Weyer, Ford, and Parker. Id. Ultimately,
however, the court held that the retirement plan at issue was not a public
accommodation because it was not offered to the public. Id.
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Uber is right that the Seventh Circuit’s statements on this point are dicta, and
I am not bound to follow dicta. See Cole Energy Dev. Co. v. Ingersoll-Rand Co., 8 F.3d
607, 609 (7th Cir. 1993).12 Nevertheless, I choose to follow it. See Reich v. Cont’l Cas.
Co., 33 F.3d 754, 757 (7th Cir. 1994) (considered dictum “provides the best, though
not an infallible, guide to what the law is, and it will ordinarily be the duty of a lower
court to be guided by it”). The court’s Morgan dictum was not a passing thought, but
rather an explicit rejection of Uber’s argument that a “public accommodation” must
be a physical site, made while acknowledging the contrary holdings of other circuits.13
So though I not bound by Morgan’s considered dictum, I elect to follow it. A “place of
public accommodation” does not have to be a physical space, and plaintiffs have
plausibly alleged that Uber operates a place of public accommodation.14
As a side note, although I read the Seventh Circuit’s comments to be dicta, others
understand the court to have picked the Carparts side of the circuit split. See, e.g., Peoples v.
Discover Fin. Servs., Inc., 387 Fed.App’x 179, 183 (3d Cir. 2010); Brief for the United States
as Amicus Curiae on Petition for Writ of Certiorari, Magee v. Coca-Cola Refreshments USA,
Inc., 138 S.Ct. 55 (2017) (No. 16-668), 2017 WL 3085074, at *18.
12
Uber points to Welsh v. Boy Scouts of America, 993 F.2d 1267, 1269 (7th Cir. 1993), which
holds that “membership organizations that do not maintain a close connection to a structural
facility” are not places of public accommodation under Title II of the Civil Rights Act. The
court briefly addressed Title III of the ADA, noting that “Congress listed over fifty specific
facilities subject to regulation, but did not include membership organizations lacking a close
connection to a physical facility.” Id. at 1270. I find the Morgan dictum more considered and
persuasive than that in Welsh, where the court was principally concerned with another
statute altogether.
13
Uber presents a new argument in its notice of supplemental authority, [141], arguing that
Uber does not “operate” a travel service. Uber could have raised this argument, premised
mostly on Village of Bedford Park v. Expedia, Inc., 876 F.3d 296 (7th Cir. 2017), in its motion,
but it did not. Anyway, it is not persuasive. See Crawford v. Uber Techs., Inc., No. 17-CV02664-RS, 2018 WL 1116725, at *4 (N.D. Cal. Mar. 1, 2018). (“While Expedia does not
exercise control over how hotels listed on its website price their rooms or deal with hotel
guests, whether the same can be said of Uber’s relationship to its drivers is not clear from
the pleadings alone.”). Plaintiffs have sufficiently alleged facts that meet Expedia’s
definitions of “operate,” including “exerts power or influence,” has a role in “day-to-day
14
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2.
Access-Content Distinction
Uber argues that the ADA’s anti-discrimination provisions only require
entities to provide access to their goods or services to people with disabilities and that
the ADA does not regulate the content of the goods or services. See Doe, 179 F.3d at
560 (“The common sense of the statute is that the content of the goods or services
offered by a place of public accommodation is not regulated.”). For example, “[a]
camera store may not refuse to sell cameras to a disabled person, but it is not required
to stock cameras specially designed for such persons,” and a bookstore may not refuse
to sell books to a person with a vision-related disability, but it is not required to stock
Braille books. Id. at 559–560. Put another way, an entity does not have to “configure
a service to make it as valuable to a disabled as to a nondisabled customer.” Id. at
560.15
The complaint does not allege that Uber refuses to sell its services to plaintiffs.
Plaintiffs could be saying that Uber’s services are not as useful for them as they are
for others due to a lack of available accessible vehicles—a challenge to the content of
Uber’s service. But the complaint could also be read to allege that Uber has denied
plaintiffs meaningful access to Uber’s transportation services by providing so few
accessible vehicles. Without accessible vehicles that can actually transport them,
plaintiffs are shut out of the service, effectively turned away due to their disabilities.
management,” and “someone who generally oversees the business of running a [service].” 876
F.3d at 304.
Plaintiffs argue this access-content distinction only applies to goods and not services. That
is not correct. See Doe, 179 F.3d at 560 (referring to “goods or services” (emphasis added)).
15
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Whether plaintiffs challenge access or content depends on how one describes Uber’s
services. Does Uber offer the service of providing a forum for requesting rides or the
service of providing rides?16 At this stage, plaintiffs have sufficiently alleged that
Uber is a transportation provider, and it is equal access to that service (not a
particular type of transportation) that Uber has blocked. See, e.g., [1] ¶¶ 3, 6, 73. If
plaintiffs establish liability, it will still remain to be seen whether the requested
remedy—that Uber provide service to those who require wheelchair-accessible
vehicles—is appropriate under the statute.
3.
Reasonable Modification
Discrimination under section 12182 includes “a failure to make reasonable
modifications in policies, practices, or procedures, when such modifications are
necessary to afford . . . services . . . to individuals with disabilities, unless the entity
can demonstrate that making such modifications would fundamentally alter the
nature of such . . . services.” 42 U.S.C. § 12182(b)(2)(A)(ii). Uber argues that the
complaint does not allege that plaintiffs “actually ‘requested a reasonable
modification’ to a specific policy.” [115] at 19. Some courts have interpreted the
provision to “require[ ] a person with a disability to request a reasonable and
necessary modification, thereby informing the operator of a public accommodation
about the disability.” Dudley v. Hannaford Bros. Co., 333 F.3d 299, 309 (1st Cir.
The access-content analysis turns on the level of generality with which one describes the
relevant service or benefit. See, e.g., Samuel R. Bagenstos, The Future of Disability Law, 114
Yale L.J. 1, 45–50 (2004). The distinction can be unclear in some contexts. See, e.g., PGA
Tour, 532 U.S. at 698–99 (Scalia, J., dissenting) (disagreeing with the majority’s view that a
complaint about the PGA’s walking rule related to plaintiff’s access to the PGA tour and not
its content). Here, clarity should follow from more factual development about Uber’s business.
16
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2003). This requirement makes sense, to prevent liability and a coercive remedy
without notice and an opportunity to address the problem. Cf. Beck v. Univ. of
Wisconsin Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996) (request requirement for
Title I reasonable accommodation “dictated by common sense lest a disabled
employee keep his disability a secret and sue later for failure to accommodate”).17
But such a request is not necessary when an entity is already on notice about
the need for a modification. Courts interpreting similar provisions in Titles I and II
have held as much. See Greer v. Richardson Indep. Sch. Dist., 472 Fed.App’x 287, 296
(5th Cir. 2012) (“[A] disabled person’s failure to expressly ‘request’ an accommodation
is not fatal to an ADA claim where the defendant otherwise had knowledge of the
individual’s disability and needs but took no action.”); McCoy v. Texas Dep’t of
Criminal Justice, No. C.A.C 05 370, 2006 WL 2331055, at *7 (S.D. Tex. Aug. 9, 2006)
(collecting cites). If Uber already knew that a reasonable modification was necessary
to make its services accessible to plaintiffs and chose not to do so, requiring an express
request from plaintiffs would serve no purpose. The complaint alleges that Access
Living met with members of Uber’s staff, showed them that the app offered no
accessible vehicles in Chicago, and requested that they “provide people requiring
wheelchair accessible vehicles with equivalent service.” [1] ¶ 58. “Uber responded
that it had no intention of providing equivalent response times.” [1] ¶ 58. That
Though plaintiffs do not argue it, some courts have rejected the request requirement for
Title III claims altogether. See Aguirre v. California Sch. of Court Reporting (CSCR)Riverside, No. CV051601042GHKGJS, 2016 WL 7635957, at *3 (C.D. Cal. Dec. 2, 2016)
(“Nothing in the text of Title III requires a disabled individual to request an accommodation
before bringing suit.”).
17
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meeting was sufficient to put Uber on notice that people like plaintiffs who need
accessible vehicles required a modification to access their services—namely, more
available accessible vehicles.18 Uber has cited no authority requiring plaintiffs to
themselves each approach Uber to have the same conversation.
Whether the requested modification is reasonable is a “highly fact-specific
inquiry.” A.H. by Holzmueller v. Illinois High Sch. Ass’n, 881 F.3d 587, 594 (7th Cir.
2018). Without knowing more about Uber’s business, and, as a result, the costs of any
possible modifications that could result in more accessible vehicles for people with
motorized wheelchairs, I cannot determine reasonableness on this motion. It is at
least plausible that more accessible vehicles could be made available through
reasonable measures. In fact, Uber provides some examples of its “efforts to promote
a sustainable WAV marketplace” (though they are not alleged in the complaint),
including working with third-party vendors to help drivers get accessible vehicles,
marketing those opportunities to its drivers, and “enhancing earning opportunities”
for drivers who provide accessible rides. [115] at 7. It is too early to say how
reasonable it would be to require Uber to increase or continue any of these practices,
but they demonstrate that plaintiffs’ request for more accessible rides is at least
plausibly reasonable.
Though the complaint often expressly refers to “equivalent services,” the allegations as a
whole make it clear that plaintiffs’ more specific request is for more accessible rides. The
same is true of the alleged meeting between Access Living and Uber. The complaint alleges
that Access Living requested “equivalent service” for people who need accessible rides but
also that Access Living showed Uber that no accessible vehicles were available on the Uber
app at the time, [1] ¶ 58, the implication being that the “service” problem was the availability
problem. Uber argues that the request was not for a modification to a specific policy, practice,
or procedure, but an increase of accessible rides would be a modification to Uber’s practices.
18
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4.
Other Section 12182 Discrimination Theories
Plaintiffs claim that Uber discriminated against them in ways other than by
failing to make reasonable modifications, including denying them the opportunity to
participate in its services and to participate in its services with equal benefit and
using
discriminatory
administrative
methods.
[1]
¶¶ 61–64;
42
U.S.C.
§ 12182(b)(1)(A)(i)–(ii), (D). Uber makes no argument about these claims, so they
survive. But plaintiffs’ claim for a violation of section 12182(b)(2)(C), which applies
to demand responsive systems that are not subject to section 12184, does not survive,
because Uber is subject to section 12184.
D.
Section 12184 – Public Transportation
Section 12184 applies to private entities “primarily engaged in the business of
transporting people and whose operations affect commerce.” 42 U.S.C. § 12184(a).
Uber argues that an entity meets that definition if its “principal business is actually
conveying passengers from place to place for money” and that since Uber does not
“actually provide transportation,” section 12184 does not apply to it. [115] at 18–19.
Even if I accept Uber’s definition, plaintiffs’ allegations meet its terms. The complaint
alleges that Uber “operate[s] a travel service”—it “arranges rides between passengers
and a fleet of drivers” and “maintains control over the cost, the vehicle, the driver
qualifications, and the general ride experience for each trip.” [1] ¶¶ 5, 72. These
allegations are sufficient to raise a plausible inference that Uber is “primarily
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engaged in the business of transporting people,” and Uber’s factual disagreement
with this characterization of its business is immaterial at this stage.19
Uber points out the complaint’s allegation that Uber does not itself own or
lease the vehicles, [1] ¶ 5, but it has not pointed to anything suggesting that an entity
must own or lease vehicles to be subject to section 12184. Uber’s citation to Village of
Bedford Park v. Expedia, Inc., 876 F.3d 296 (7th Cir. 2017), is not persuasive. In
Expedia, the court interpreted ordinances that imposed taxes on entities “engaged in
the business of renting hotel rooms.” Id. at 305. Uber points in particular to the court’s
reasoning that that the ordinances do not apply to online travel agencies, like
Expedia, because “renting implies ownership and granting possession of property,”
and the online agencies do not own hotel rooms and thus cannot rent them. Id. That
analysis hinged on what it means to “rent”—a term not present in section 12184—
and the complaint’s allegations paint Uber’s role in the transportation business as
being more than the mere facilitator of rentals that Expedia was.
The basis of plaintiffs’ section 12184 claim is that Uber failed “to make
reasonable modifications,” which imposes the same obligations as the “reasonable
modification” provision in section 12182. 42 U.S.C. § 12184(b)(2)(A). Plaintiffs have
Uber argues that “an entity’s ‘control’ over third-parties who are subject to Section 12184
. . . does not make the entity responsible for the controlled third-parties’ compliance,” [138]
at 11 & n.3, relying on Noel v. New York City Taxi & Limousine Commission, 687 F.3d 63,
71–72 (2d Cir. 2012). But in Noel, the court was deciding whether a New York City agency’s
control over taxis made the private taxi authority a program or activity of a public entity
under Title II. Id.
19
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stated a claim for Uber’s failure to modify under section 12184 for the same reasons
they have under section 12182.20
V.
Conclusion
Uber’s motion to dismiss [117] is granted in part, denied in part, and its motion
for judgment on the pleadings [119] is granted in part, denied in part. Access Living
and Patrick’s claims are dismissed without prejudice, but Garcia and Cooper may
pursue claims for injunctive relief under sections 12182 and 12184.
ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: December 17, 2018
Plaintiffs do not allege a violation of section 12184(b)(3), which requires transportation
entities buying or leasing a new vehicle to get one that is accessible to people with disabilities,
with some exceptions. As Uber points out, “[p]roviders of taxi service are not required to
purchase or lease accessible automobiles.” 49 C.F.R. § 37.29(b). But plaintiffs do not ask that
Uber purchase or lease accessible vehicles.
20
26
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