Colon v. HY Supplies, Inc.

Filing 28

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 11/15/2023: Defendant's motion to dismiss, 19 , is denied. Defendant shall answer the complaint by November 29, 2023. By December 6, 2023, the parties shall file a joint status report with a proposed case schedule for fact discovery, amendment of the pleadings, and briefing defendant's motion for summary judgment. [For further detail see attached order.] Notices mailed. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOCELYN COLON,
Plaintiff,

No. 22 CV 5915

v.

Judge Manish S. Shah

HY SUPPLIES, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff Jocelyn Colon is legally blind. Defendant HY Supplies, Inc. sells salon
and healthcare supplies through its website. Colon alleges that she tried to use the
company’s website but was unable to understand its content because the website
wasn’t configured properly for blind users. Colon seeks injunctive and declaratory
relief for an alleged violation of the Americans with Disabilities Act. HY now moves
to dismiss for lack of standing, failure to state a claim, and lack of subject matter
jurisdiction. For the reasons set forth below, the motion is denied.

I.

Background
To access visual content on the internet, plaintiff Jocelyn Colon uses a screen

reader, which reads text aloud to her. [1] ¶¶ 8, 12. 1 She uses an iPhone with a screenreader application as well as her Microsoft Windows 10 laptop. [1] ¶ 12; [22] at 5. 2
HY is an online retailer of salon and healthcare supplies. [1] ¶ 13. Customers
may purchase HY’s products and access other brand-related content and services at
its website. [1] ¶ 14. Customers may also use HY’s website to contact customer
services by phone, instant messenger, and email; sign up to receive product updates
and special promotions; and review legal notices, such as HY’s Privacy Policy and
Terms and Conditions. [1] ¶ 15.
Colon alleges that she attempted to access HY’s website from her home to shop
for diabetic foot cream, but encountered barriers because HY’s website is allegedly
not compatible with screen access programs. [1] ¶¶ 21, 27. Colon alleges three
examples of accessibility barriers to the website. [1] ¶ 27. First, a “10% off”
promotional banner displayed at the top of the homepage, which included a coupon
code, was inaccessible to screen-reader users as the screen reader read the banner as
saying, “5 list start.” Id. Second, the “Top Trending” carousel on the homepage
displayed several popular products, under which there were several buttons (“Add to

Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings. When a document has
numbered paragraphs, I cite to the paragraph, for example [1] ¶ 1. The facts are taken from
Colon’s complaint, [1].
1

The complaint alleges that Colon uses the screen-reader application JAWS with her iPhone.
[1] ¶ 12. Colon’s opposition states this was a typographical error and that Colon uses
VoiceOver with her iPhone. [22] at 5.
2

2

Compare,” “Add to Wishlist,” “Add to Cart”). Id. None of these buttons received focus
and were not announced by the screen-reader. Id. Third, when updating the quantity
of a product and adding it to the cart on the website, an error message was displayed,
but the screen reader announced “invalid data” with no other information. Id.
Colon alleges that these barriers denied her full and equal access to the
services on HY’s website and deter her from attempting to use the website to buy
HY’s goods and services. [1] ¶ 28. Colon also alleges that she would like to, and
intends to, attempt to access the website in the future. Id.
Colon seeks declaratory and prospective injunctive relief requiring HY to
improve and maintain accessibility of its website. [1] ¶ 17; [1] at 13–14.
II.

Standing
HY argues that Colon does not have standing to bring this suit. [19] at 11. 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, 578 U.S. 330, 338 (2016).
A.

Injury in Fact

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). Colon alleges multiple
injuries in fact from her attempt to access HY’s website. Colon encountered barriers
that denied her full and equal access to HY’s online goods, content, and services. [1]
¶ 21. She was unable to purchase diabetic foot cream from HY’s website and access a
3

10% off promotion because of these barriers. [1] ¶¶ 21, 27. See Lujan v. Defs. 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.”).
Because she seeks prospective injunctive relief, Colon must also allege a “real
and immediate” threat of future ADA violations. See 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, 504 U.S. at 564 (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 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). Colon
alleges both that she intends to return to HY’s website, and that she is deterred 3 from
doing so. [1] ¶ 28.
HY argues that Colon’s desire and intent to access its website in the future
negates any claim of her being “deterred” from going back to the site. [19] at 13. But
Colon can’t follow through on her desire or intent because of the alleged barriers to

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 Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 419 (2013). Colon has plausibly alleged that if she were not deterred and
actually visited HY’s website she would not be able to fully access HY’s goods and services
because of the website’s incompatibility with her screen reader. [1] ¶¶ 21, 29.
3

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access—she is deterred from even trying to return. HY also argues that Colon must
allege a concrete plan of when she intends to try to use its website. [19] at 14. Colon
does not need to allege such detail. Concrete intentions to return to a location of injury
are not required to establish standing. See Laidlaw, 528 U.S. at 184 (holding that
plaintiffs’ “conditional statements—that they would use the nearby North Tyger
River for recreation if [defendant] were not discharging pollutants into it—[cannot]
be equated with the speculative ‘some day intentions’ to visit endangered species
halfway around the world that we held insufficient to show injury in fact.”).
At this stage, Colon’s allegations are enough to establish a “real and
immediate” threat of future ADA violations. See Scherr, 703 F.3d at 1074. Colon has
adequately alleged an injury in fact.
B.

Causation and Redressability

Colon must also allege that her injuries are causally connected to HY’s actions
and that a decision in her favor is likely to redress her injuries. 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 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).
Colon alleges that she was unable to purchase HY’s product and to access a
discount, and that she is now also deterred from using HY’s website because of
accessibility barriers. [1] ¶¶ 21, 27–28. I accept Colon’s allegations as true at this
stage, see Lujan, 504 U.S. at 561, and therefore, she has adequately alleged her
5

injuries were causally connected to HY’s failure to make its website accessible to
screen reader users.
Colon’s allegations also support an inference that a decision in her favor is
likely to redress her injuries. Redressability “examines the causal connection between
the alleged injury and the judicial relief requested.” Lac Du Flambeau Band of Lake
Superior Chippewa Indians v. Norton, 422 F.3d 490, 501 (7th Cir. 2005) (quotation
omitted). On a motion to dismiss, a plaintiff need only plead “that there is a
‘substantial likelihood’ that the relief requested will redress the injury claimed.” Duke
Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n. 20 (1978). Colon’s
requested relief would make HY’s website compatible with screen readers. [1] ¶¶ 17–
18. Colon would have equal access to HY’s goods and services, be able to make
purchases, and would no longer be deterred from using the website. See [1] ¶ 29.
Colon has adequately shown she has standing, therefore, HY’s motion to
dismiss on these grounds is denied.
III.

Failure to State a Claim
When reviewing a 12(b)(6) motion to dismiss, a court accepts all well-pled

allegations as true and draws all reasonable inferences in favor of the plaintiff.
Gociman v. Loyola Univ. of Chi., 41 F.4th 873, 878 (7th Cir. 2022). “To survive a
motion to dismiss, a plaintiff need allege ‘only enough facts to state a claim to relief
that is plausible on its face.’” Barwin v. Vil. of Oak Park, 54 F.4th 443, 453 (7th Cir.
2022) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Colon brings her claim under Title III of the ADA, which provides that “[n]o
individual shall be discriminated against on the basis of disability in the full and
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equal enjoyment of the goods, services, facilities, advantage, or accommodations of
any place of public accommodation.” 42 U.S.C. § 12182(a). This non-discrimination
provision applies to “any person who owns, leases (or leases to), or operates a place of
public accommodation.” Id.
Title III defines “discrimination” as “a failure to take such steps as may be
necessary to ensure that no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals because of the
absence of auxiliary aids and services,” unless the defendant can show that such
accommodation “would fundamentally alter the nature of the good, service, facility,
privilege, advantage, or accommodation being offered or would result in an undue
burden.” § 12182(b)(2)(A)(iii).
To successfully state a claim under Title III, Colon must allege that HY
operates a “place of public accommodation,” and that Colon was discriminated against
because of her disability. See Mohammed v. DuPage Legal Assistance Found., 781 F.
App’x 551, 552 (7th Cir. 2019) (citing A.H. by Holzmueller v. Ill. High Sch. Ass’n, 881
F.3d 587, 592–93 (7th Cir. 2018)).
A.

Place of Public Accommodation

“Public accommodation” is defined by a list of different kinds of entities,
including sales establishments. 42 U.S.C. § 12181(7)(E). HY 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. [19] at 6.

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The Courts of Appeal for the Third, Fifth, Sixth, and Ninth Circuits agree with
HY that a place of public accommodation must be a physical space. 4 See Magee v.
Coca-Cola Refreshments USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016), cert. denied,
583 U.S. 814 (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 Distribution
Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir.
1994). The court reasoned that the terms listed in § 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 noted that “[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

The Eleventh Circuit held the same, but the case was later vacated on other grounds. Gil v.
Winn-Dixie Stores, Inc., 993 F.3d 1266, 1276–77 (11th Cir. 2021), vacated by 21 F.4th 775.

4

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available to those who do not have disabilities.” Id. The Second Circuit has cited
Carparts approvingly, though it has not committed itself to the Carparts position.
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 § 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, 564.
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,

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however, the court held that the retirement plan at issue was not a public
accommodation because it was not offered to the public. Id.
HY offers a “middle ground” between the circuits, suggesting that I distinguish
between the “front-end” v. “back-end” of its website. [19] at 9. HY argues that its
website forms two discrete “spaces”: the “front-end” of the site, which HY compares
to a catalog with information about products, and the “back-end,” the shopping cart
and order-processing portal. Id. According to HY, only the “back-end” of its website
can be considered a public accommodation because that is where the transaction
occurs, like a cashier’s register—a point of sale. Id. In comparison, the “front-end”
cannot be a place of public accommodation because even though it is visible to the
public, it is a feature of the store, not the store itself, like a restaurant’s menu. Id. HY
argues that in order to have a claim, Colon must allege that something discriminatory
is in the back-end of HY’s website that prevents her from buying HY’s goods or
services. [19] at 11.
HY offers no binding case law to support this distinction, citing only to Huzar
v. Groupon, Inc., No. 17-cv-5383, 2018 WL 3619388 (N.D. Ill. July 30, 2018). [19] at
9–10. Huzar held that Groupon was not a place of public accommodation because it
only sold hotel reservations and sports event tickets but did not operate the hotels
and sports stadiums. 2018 WL 3619388 at *3. That is not the case here. HY is not
selling reservations or tickets to other public accommodations but is operating a
website to sell products.

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Ultimately, if there is something discriminatory in the “front-end” of a website,
a disabled user may be unable to make a purchase from the “back-end.” Even
accepting HY’s characterization of the “front-end” of the website as a menu or catalog,
an inaccessible menu or catalog can still prevent a disabled person from equal access
to goods or services. See 28 C.F.R. § Part 36, App. C (explaining while a restaurant
does not have to provide a menu in Braille, it must provide alternative effective
communication to customers with vision disabilities). The front-end/back-end
distinction does not provide a meaningful definition of a place of public
accommodation.
HY similarly argues that, if I find its website to be a place of public
accommodation, I should analyze which portions of HY’s website fall under the ADA
definition of a “place of public accommodation” as a facility “whose operations affect
commerce.” [25] at 4–5. HY argues that the portions of its website that are allegedly
inaccessible do not affect commerce and therefore, the site is not a place of public
accommodation. Id. The issue of whether an accessibility barrier affects commerce
may affect the merits of Colon’s claim. But even if I were to make this distinction,
Colon’s allegations, taken as true, demonstrate that the inaccessible portions of HY’s
website affected her ability to purchase a product, which affects commerce. See [1]
¶¶ 21, 27.
HY also argues, citing 303 Creative, LLC v. Elenis, 600 U.S. 570 (2023), that
its website contains expressive content that is protected under the First Amendment.
[25] at 6. This argument undermines HY’s other arguments that its website is only a

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catalog of products and that HY is simply a broker of products. See [19] at 9–11; [25]
at 2. In any event, 303 Creative was limited to “public accommodations statute[s that]
deny speakers the right to choose the content of their own messages.” 600 U.S. at 592
(quotation omitted). On the current record, Colon is not asking that HY change the
content of its website, but that HY make that content accessible. See [1] ¶ 27. Such
changes would not implicate the forced-speech concerns raised in 303 Creative.
None of HY’s arguments persuade me to veer away from the Seventh Circuit’s
considered dicta that a place of public accommodation is not limited to physical sites.
I am not bound to follow dicta. See Cole Energy Dev. Co. v. Ingersoll-Rand Co., 8 F.3d
607, 609 (7th Cir. 1993). Nevertheless, it carries significant weight. 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 HY’s argument that a “public
accommodation” must be a physical site, made while acknowledging the contrary
holdings of other circuits. 268 F.3d at 459. So, I elect to follow it. A “place of public
accommodation” does not have to be a physical space, and Colon has plausibly alleged
that HY operates a place of public accommodation.
B.

Discrimination because of Disability

Colon is legally blind, [1] ¶ 12, and therefore she is disabled within the
meaning of the ADA. 42 U.S.C. § 12102(2)(A). Colon alleges that she was denied full
and equal access to the services HY offers because HY’s website is not properly
formatted to allow blind users to access its digital content. [1] ¶ 9. She was unable to
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purchase diabetic foot cream from HY’s website and access a promotion because of
these barriers. [1] ¶¶ 21, 27.
HY argues that Colon’s claim should be dismissed because she misidentified
which screen reader she uses in the complaint, she failed to adequately plead that
HY’s website caused the accessibility barriers, and she failed to use the alternative
auxiliary aids that HY provided. [19] at 4–6; [25] at 12–14.
Identity of Screen Reader
Colon alleges that she “uses an iPhone with the screen-reader application
JAWS as well as her Microsoft Windows 10 laptop.” [1] ¶ 12. HY argues that JAWS
is only compatible with Windows operating systems, not the iPhone. [19] at 4. Colon
admits that this is an error in her complaint, 5 and that she uses her iPhone with the
VoiceOver app, as well as her Microsoft Windows 10 laptop. [22] at 5 n. 1. Colon also
notes that it is possible to run Windows applications on an iPhone through remote
access tools. [22] at 9.
HY argues that this error is sufficiently material and an independent basis for
dismissal. [19] at 4. According to HY, identification of which screen reader Colon used

HY argues that Colon is a serial litigant who has, through the same counsel, filed 11 cookiecutter ADA website accessibility lawsuits that all contain the same error. [25] at 9. HY argues
that because Colon has taken this position in other lawsuits, and induced settlement in her
favor, she is judicially estopped from “amending” her “mistake” in this case. Id. HY cites to
Baughman v. Disney World Co., 685 F.3d 1131, 1133–34 (9th Cir. 2012), which judicially
estopped a plaintiff from asserting that she never used or doesn’t need a wheelchair when
she claimed the exact opposite in three prior lawsuits. Id.; see also Commonwealth Ins. Co. v.
Titan Tire Co., 398 F.3d 879, 887 (7th Cir. 2004) (holding “[j]udicial estoppel prevents a party
that has taken one position in litigating a particular set of facts and prevailed under that
position from later reversing its position when it is to its advantage to do so.”). Colon’s
inconsistency here is not so egregious—Colon says she named the wrong screen reader, but
she never disclaimed using one at all.
5

13

when she attempted to purchase foot cream is an important factual detail because
different screen readers have different functionalities and compatibilities. [19] at 5.
HY argues that Colon’s claim fails because she did not claim that she attempted to
use more than one screen reader to access HY’s website, or that she made multiple
attempts on different dates with the same or different readers. Id. HY provides no
authority requiring a plaintiff to allege that she tried several screen reader
applications to ensure that a defendant’s website was inaccessible across all screen
readers to bring a Title III claim.
The identity of Colon’s screen reader may be material at a later stage of the
proceedings when assessing whether HY’s website was accessible, but on a motion to
dismiss, it does not affect the sufficiency of Colon’s complaint. Taking Colon’s
allegations as true, the website was incompatible with her screen reader, whichever
one she used, and therefore Colon was deprived of equal access to HY’s goods and
services, which is discrimination within the meaning of the ADA.
Causation
HY argues that Colon’s claim fails because she did not plausibly plead that the
accessibility barriers are attributable to HY’s website as opposed to Colon’s own “user
error.” [19] at 5. Because Colon did not make allegations of her training, experience,
or ability to use her screen reader, HY argues that it is reasonable to infer that Colon’s
own mistake prevented her from accessing HY’s website. Id.
But at this stage, I must draw all reasonable inferences in Colon’s favor.
Gociman, 41 F.4th at 878. It is reasonable to infer that Colon, who has been blind
since she was sixteen, [1] ¶ 12, was fully capable of using a screen reader and
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troubleshooting any issues she encountered. Taking Colon’s allegations as true, she
was denied services and was unable to purchase the foot cream from HY’s website
“due to Defendant’s failure to build the [website] in a manner that is compatible with
screen access programs.” [1] ¶ 21, 27.
Alternative Auxiliary Aids and Services
HY contends that its website falls under the auxiliary aid provision of Title III,
[25] at 12, which specifies that while public accommodations must communicate
effectively with customers who have vision disabilities, public accommodations can
choose amongst various formats and methods of communication. 42 U.S.C.
§ 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(c); 28 C.F.R. § Pt. 36, App. C. For instance, if
a menu cannot be read by a blind person, the restaurant need not make the menu
available in Braille; the restaurant could ensure that waiters are available to explain
the menu. 28 C.F.R. § Pt. 36, App. C.
Because the auxiliary aid requirement is flexible, id., HY concludes that it need
not modify its website, so long as it provides the information contained therein in
some other format, such as by telephone. [25] at 13. HY argues that Colon’s claim
must be dismissed because she does not allege that she was unable to, or attempted
to, purchase the foot cream or access the website content through alternative means
offered by HY, such as its customer service hotline or chatbot. [19] at 5–6; [25] at 12–
14.
However, the application of the auxiliary aid option is an affirmative defense
and not an appropriate basis to dismiss a complaint under Rule 12(b)(6). See, e.g.,
Access Now, Inc. v. Blue Apron, LLC, No. 17-CV-116-JL, 2017 WL 5186354, at *10
15

(D.N.H. Nov. 8, 2017) (“[T]he question of whether [defendant] provides effective
communication for visually-impaired individuals through an alternative means—
such as by telephone—amounts to an affirmative defense against the plaintiffs’ claim
that [defendant’s] website violates the ADA.”); Nat’l Fed’n of the Blind v. Target
Corp., 452 F. Supp. 2d 946, 956 (N.D. Cal. 2006) (“[D]efendant concludes that [it] need
not modify its website, so long as it provides the information contained therein in
some other format, such as by telephone. However, the flexibility to provide
reasonable accommodation is an affirmative defense and not an appropriate basis
upon which to dismiss the action.”).
“The mere presence of a potential affirmative defense does not render the claim
for relief invalid.” Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 690 (7th
Cir. 2012). A plaintiff need not anticipate and attempt to plead around affirmative
defenses. Hyson USA, Inc. v. Hyson 2U, Ltd., 821 F.3d 935, 939 (7th Cir. 2016).
Affirmative defenses frequently “turn on facts not before the court at [the pleading]
stage.” Brownmark Films, 682 F.3d at 690. Therefore, dismissal is appropriate only
when the factual allegations in the complaint unambiguously establish all the
elements of the defense. Hyson, 821 F.3d at 939.
After Colon states a claim—by alleging that the website is not accessible to the
blind—the burden then shifts to HY to assert, as an affirmative defense, that it
already provides the information on its website in another effective format. While
Colon alleges that customers may use HY’s website to contact customer services by
phone, instant messenger, and email, it is not unambiguously clear that these

16

auxiliary aids effectively communicate with blind users. See [1] ¶ 15. HY’s challenge
is premature, and I decline to dismiss the action on this basis. 6
IV.

Attorney’s Fees and Sanctions
HY requests attorneys’ fees and costs pursuant to 42 U.S.C. § 12205 and for

sanctions against Colon’s attorneys under 28 U.S.C. § 1927. [25] at 14. HY has not
prevailed, so attorneys’ fees and costs are not available to it under § 12205. As for
§ 1927, HY points out that Colon has filed multiple, similar website accessibility cases
against other defendants. Id. HY then questions “whether Plaintiff even knows what
Plaintiff’s counsel has been filing in her name, or if she knows counsel at all.” [25] at
15. HY and its counsel also seem to be making derogatory judgments about Colon’s
life and choices. See id. Colon has standing and has stated a claim, so if anyone—on
the current record—has come close to the line of improper behavior, it’s the defense.
The request for attorney’s fees and sanctions is denied.
V.

Conclusion
Defendant’s motion to dismiss, [19], is denied. Defendant shall answer the

complaint by November 29, 2023. By December 6, 2023, the parties shall file a joint

A court may take judicial notice of facts not subject to reasonable dispute without converting
a 12(b)(6) motion into a motion for summary judgment. Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007); Fed. R. Evid. 201(b). HY asks that I take judicial notice of
three facts: (1) the screen-reader program JAWS is incompatible with the iPhone, [19] at 4
n. 1; (2) changes to HY’s website that allegedly eliminate Colon’s alleged accessibility
barriers, [19] at 14; and (3) the HY website in its entirety shows that it operates as an onlineonly deal broker or platform, [25] at 2. None of these facts are appropriate subjects of judicial
notice. See Gen. Elec. Cap. Corp. v. Lease Resol. Corp., 128 F.3d 1074, 1081 (7th Cir. 1997)
(“Judicial notice is premised on the concept that certain facts or propositions exist which a
court may accept as true without requiring additional proof from the opposing parties.”).
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status report with a proposed case schedule for fact discovery, amendment of the
pleadings, and briefing defendant’s motion for summary judgment.
ENTER:
___________________________
Manish S. Shah
United States District Judge

Date: November 15, 2023

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