Carello v. Aurora Policemen Credit Union

Filing 50

MEMORANDUM Opinion and Order: Defendant's motion to dismiss 15 is granted and the case is dismissed without prejudice. Enter judgment in favor of the defendant Aurora Policemen Credit Union. Signed by the Honorable Thomas M. Durkin on 8/7/2018. Mailed notice. (jjr, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW CARELLO,
Plaintiff,

No. 17 C 9346

v.

Judge Thomas M. Durkin

AURORA POLICEMEN CREDIT UNION,
Defendant.
MEMORANDUM OPINION AND ORDER
Matthew Carello alleges that the website for the Aurora Policemen Credit
Union violates the Americans with Disabilities Act because it is not accessible to
people who are blind. The Credit Union has moved to dismiss for lack of standing. R.
15. For the following reasons, that motion is granted.
Legal Standard
Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to dismiss any
claim over which the Court lacks subject matter jurisdiction “at any time.” See Fed.
R. Civ. P. 12(h)(3). “Facial challenges [to subject matter jurisdiction] require only that
the Court look to the complaint and see if the plaintiff has sufficiently alleged a basis
of subject matter jurisdiction.” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d
440, 443 (7th Cir. 2009) (emphasis in original); see, e.g., Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992) (“At the pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice, for on a motion to dismiss we
presume that general allegations embrace those specific facts that are necessary to

support a claim.”). “The party asserting federal jurisdiction bears the burden of
demonstrating its existence.” Farnik v. F.D.I.C., 707 F.3d 717, 721 (7th Cir. 2013).
Background
Carello is permanently blind and uses screen reading software to access
websites. R. 1 ¶ 2. Unless a website is designed to be read by such software, a person
who is blind cannot fully access the website. Id. ¶ 11. Carello alleges that the Credit
Union’s website cannot be accessed by screen reading software. Id. ¶ 17. Carello also
alleges that he has unsuccessfully tried to access the website several times, and that
the barriers to the website have also deterred him from visiting the Credit Union’s
physical locations. Id. ¶ 19. Carello has not alleged that he cannot access the Credit
Union’s physical locations.
The Credit Union is governed by Illinois law requiring that its membership be
limited to a specific group of individuals. See 205 ILCS 305/1.1. Carello does not allege
that he is eligible to be a member of the Credit Union, see R. 1, and he does not dispute
the Credit Union’s assertion that he is ineligible. See R. 34 at 1.
Analysis
To have standing to bring a claim, a plaintiff must allege that the defendant
caused him to suffer an “injury in fact,” i.e., “an invasion of a legally protected
interest” that is “concrete and particularized,” “actual and imminent,” and “not
conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016).
Carello is ineligible to be a member of the Credit Union. Since he cannot be a member,
even if the website were made accessible to people who are blind, any increased

2

accessibility of the website would not be of any material benefit to Carello. And since
the relief Carello seeks would not benefit him, he has failed to allege an injury. See
Dahlberg v. Avis Rent A Car Sys., Inc., 92 F. Supp. 2d 1091, 1110 (D. Colo. 2000)
(plaintiff did not have standing to seek injunction requiring hand controls in cars
because he would be unable to use the cars even if they were equipped with hand
controls). Several courts have recently dismissed claims nearly identical to Carello’s
for lack of standing. See Mitchell v. Dover-Phila Fed. Credit Union, 2018 WL 3109591
(N.D. Ohio June 25, 2018); Carroll v. Roanoke Valley Cmty. Credit Union, 2018 WL
2921106 (W.D. Va. June 11, 2018); Carroll v. Farmers and Miners Bank, 2018 WL
1659481 (W.D. Va. Apr. 5, 2018); Carroll v. Wash. Gas Light Fed. Credit Union, 2018
WL 2933412 (E.D. Va. Apr., 4, 2018); Carroll v. ABNB Fed. Credit Union, 2018 WL
1180317 (E.D. Va. Mar., 5, 2018); Griffin v. Dep’t of Labor Fed. Credit Union, 293 F.
Supp. 3d 576 (E.D. Va. 2018); Carroll v. Northwest Fed. Credit Union, 2018 WL
2933407 (E.D. Va. Jan. 26, 2018). So too must Carello’s claim be dismissed for lack of
standing.
Carello relies on Gniewkowski v. Lettuce Entertain You Enterprises, in which
the court held that a plaintiff who is blind has standing to bring a claim against a
bank for a website inaccessible to people who are blind. 251 F. Supp. 3d 908 (W.D.
Pa. 2017). Carello’s reliance on Gniewkowski is misplaced, however, because the bank
in that case was not statutorily restricted to a certain membership pool, as is the case
with the Credit Union. Since there was nothing preventing the plaintiff in that case

3

from using the bank’s services, the inaccessibility of the website injured the plaintiff
who was a prospective client of the bank.
Citing a case from the Third Circuit, Carello argues that the fact that he is not
a “client or customer” of the Credit Union does not mean that he lacks standing
because the ADA protects “people” with disabilities and not just “clients or
customers.” See R. 34 at 1-5 (citing Menkowitz v. Pottstown Mem. Med. Ctr., 154 F.3d
113, 118-23 (3d Cir. 1998)). But as Menkowitz shows, this argument is relevant to the
statutory scope of the ADA and has nothing to say about whether Carello has alleged
an injury in fact. True, the ADA applies to more people than just those who can be
described as “customers and clients.” But that does not mean that an inability to be
a customer and client—as is the case with Carello’s relationship to the Credit Union—
is not relevant to analyzing whether Carello has alleged an injury in fact. As
discussed, Carello’s failure to allege that he is eligible to be a member of the Credit
Union is fatal to his claims in this case.
Carello also argues that his inability to access the Credit Union’s website due
to his disability constitutes an injury to his dignity. See R. 34 at 5-6. He cites cases
holding that a “dignitary interest” can be relevant to determining whether a plaintiff
has been injured. See, e.g., Shaver v. Ind. Stave Co., 350 F.3d 716, 724 (8th Cir. 2003)
([T]he mere fact of discrimination offends the dignitary interest that the statutes are
designed to protect, regardless of whether the discrimination worked any direct
economic harm to the plaintiffs.”). The problem with this argument is that all these
cases concern claims under Title I of the ADA, which prohibits discrimination in

4

hiring), see id. at 719 (claim for harassment and retaliation in employment), whereas
Carello brings his claim under Title III for denial of access to a public
accommodation. 1 A plaintiff’s dignity is implicated in discrimination claims to the
extent that the plaintiff is injured by being rejected based on his disability instead of
the merits of his application. Carello can point to no analogous injury here.
In contrast to the role of dignitary interest in Title I claims, courts have
consistently held that a plaintiff bringing a Title III claim must demonstrate that he
has an intent to use the accommodation in question in the future. See Scherr v.
Marriott Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (“While we agree that Scherr
need not engage in the ‘futile gesture’ of traveling to each of the other fifty-six
Courtyard Marriotts to establish that she has actual knowledge of an alleged ongoing
violation at each of the facilities, as we held above she still must assert an intent to
return to the particular place (or places) where the violations are alleged to be
occurring. Scherr shows such intent with respect to the Overland Park Courtyard
Marriott, but she makes no such showing with regard to any of the other fifty-six
Courtyard Marriotts.”). This is in part due to the fact that Title III provides for
injunctive relief only. See id. at 1075. Injunctive relief is not warranted in
circumstances where the plaintiff has no intent to access the accommodation. See id.
at 1074 (“[T]o establish injury in fact when seeking prospective injunctive relief, a

“The ADA is organized into three titles prohibiting discrimination across three
major spheres of public life: employment (Title I); public services, programs, and
activities (Title II); and public accommodations (Title III).” Lacy v. Cook County, 2018
WL 3617603, at *2 (7th Cir. July 30, 2018).
1

5

plaintiff must allege a “real and immediate” threat of future violations of their
rights[.]”).
Here, the fact that Carello is ineligible to be a member of the Credit Union
means he has no plausible material reason for accessing the Credit Union’s website.
All the information on the Credit Union’s website is only useful for people who can
become members of the Credit Union. Since Carello cannot become a member of the
Credit Union, it is simply not plausible that he intends to access the website in the
future. His dignity is not truly implicated absent a plausible intent to access the
website in the future.
Conclusion
For the foregoing reasons, the Credit Union’s motion, R. 15, is granted, and
Carello’s complaint is dismissed without prejudice.
ENTERED:
______________________________
Thomas M. Durkin
United States District Judge

Date: August 7, 2018

6