Brintley v. Belle River Community Credit Union

Filing 35

ORDER denying 6 Motion to Dismiss; finding as moot 34 Motion for Leave to File. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KARLA BRINTLEY,
Case No. 17-13915
Plaintiff,
v.

SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

BELLE RIVER COMMUNITY CREDIT
UNION,

U.S. MAGISTRATE JUDGE
ANTHONY P. PATTI

Defendant.
/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS [6]; DENYING AS MOOT
PLAINTIFF’S MOTION FOR LEAVE TO FILE RESPONSE [34]
Plaintiff, Karla Brintley, a permanently blind woman, commenced this
action against Defendant Belle River Community Credit Union alleging violations
of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.§ 12181 et
seq., and the Michigan Persons with Disabilities Civil Rights Act (“PWDCRA”),
M.C.L. § 37.110 et seq.
Plaintiff alleges that Defendant’s website contains access barriers which
prevent visually-impaired individuals, like herself, from equal enjoyment of and
access to Defendant’s services.
Before the Court is Defendant’s Motion to Dismiss [6] filed on February 5,
2018. For the reasons stated below, Defendant’s Motion is DENIED.
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FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a Michigan resident who is permanently blind and uses a screen
reader to access the internet. Screen-reading software vocalizes visual information
and is the only method by which a blind person may independently use the
internet. Defendant is a Michigan credit union that operates a website, brccu.com,
which provides information about its locations, services, and amenities. Plaintiff
has tried several times to access Defendant’s website, but has faced barriers which
have hindered her from effectively browsing for locations, amenities, and services
and deterred her from visiting Defendant’s branches.
On December 5, 2017, Plaintiff, through counsel, commenced four separate
actions in the Eastern District of Michigan against different Michigan credit unions
alleging violations of the ADA and the PWDCRA. The cases were assigned to this
Court as companion cases.
On February 5, 2018, Defendant filed this Motion to Dismiss [6] pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Motion is fully briefed.1 The Court held
a hearing on the Motion on May 21, 2018.
LEGAL STANDARDS
Defendant moves to dismiss the Complaint pursuant to Fed. R. Civ. P.
12(b)(1) for lack of standing. “Standing is thought of as a ‘jurisdictional’ matter,

1

The Michigan Credit Union League (“MCUL”) has filed an amicus brief.
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and a plaintiff’s lack of standing is said to deprive a court of jurisdiction.” Ward v.
Alternative Health Delivery Sys., Inc., 261 F.3d 624, 626 (6th Cir. 2001) (internal
citation omitted). “[P]laintiff has the burden of proving jurisdiction in order to
survive the motion.” Mich. S. R.R. Co. v. Branch & St. Joseph Cntys. Rail Users
Ass’n., Inc., 287 F.3d 568, 573 (6th Cir. 2002).
Defendant also moves to dismiss the Complaint pursuant to Fed. R. Civ. P.
12(b)(6). “To survive a motion to dismiss, [plaintiff] must allege ‘enough facts to
state a claim to relief that is plausible on its face.’” Traverse Bay Area
Intermediate Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). On a Rule
12(b)(6) motion to dismiss, the Court must “assume the veracity of [the plaintiff’s]
well-pleaded factual allegations and determine whether the plaintiff is entitled to
legal relief as a matter of law.” McCormick v. Miami Univ., 693 F.3d 654, 658 (6th
Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
ANALYSIS
I. Plaintiff has standing to pursue this action
“Federal courts may exercise jurisdiction only where an actual ‘case or
controversy’ exists.” Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 709–10 (6th
Cir. 2015) (citing U.S. Const. art. III, § 2). “Courts have explained the case or
controversy requirement through a series of justiciability doctrines, including,
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perhaps the most important, that a litigant must have standing to invoke the
jurisdiction of the federal courts.” Id. at 710 (internal citation and quotation marks
omitted).
To establish Article III standing, a plaintiff must allege that: she suffered an
injury in fact; a causal connection exists between the injury and conduct
complained of; and it is likely the injury will be redressed by a favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (internal citations omitted).
“The Supreme Court has instructed [courts] to take a broad view of
constitutional standing in civil rights cases, especially where, as under the ADA,
private enforcement suits ‘are the primary method of obtaining compliance with
the Act.’” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039–40 (9th Cir. 2008) (citing
Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
A. Injury-in-fact
“The injury-in-fact requirement requires a plaintiff to show that he or she
suffered ‘an invasion of a legally protected interest’ that is ‘concrete and
particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1543 (2016) (citing Lujan, 504 U.S. at 560).
Defendant argues that Plaintiff has failed to demonstrate that she suffered
concrete harm because she has not been denied any actual services such as the
ability to deposit money or obtain a loan. According to Defendant, Plaintiff cannot
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make a showing of concrete harm because she is neither a member, nor eligible to
become of a member, of the credit union.
Relying on a series of cases from the Eastern District of Virginia in which
blind plaintiffs have sued credit unions for violating Title III, Defendant argues
that Plaintiff’s ineligibility for membership is fatal to her claim for relief. In
Virginia, the Eastern District has repeatedly dismissed the plaintiffs’ claims for
lack of standing because they were neither members, nor eligible to become
members, of the respective credit unions. See, e.g., Carroll v. N.W. Fed. Credit
Union, No. 17-cv-01205 (E.D. Va. Apr. 16, 2018); Carroll v. Wash. Gas Light
Fed. Credit Union, No. 17-01201 (E.D. Va. Apr. 4, 2018); Carroll v. ABNB Fed.
Credit Union, No. 17-cv-521, 2018 WL 1180317, at *3 (E.D. Va. Mar. 5, 2018)
(“In the absence of allegations that show that Mr. Carroll is or could possibly
become a member of ABNB, he has not suffered a concrete injury from being
unable to access information about the services available to members of ABNB.”);
Griffin v. Dep’t of Labor Fed. Credit Union, No. 17-1419, (E.D. Va. Feb. 21,
2018) (“Without membership or even the ability to become a member, there is no
harm to plaintiff . . . .”).
Contrary to Defendant’s position, eligibility for membership in the credit
union is not a prerequisite for standing. See PGA Tour, Inc. v. Martin, 532 U.S.
661, 679 (2001) (noting that Title III does not contain a “clients or customers”
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limitation). By requiring the plaintiffs to demonstrate membership, or eligibility for
membership, the Eastern District of Virginia essentially imposes an additional
requirement for standing beyond a particularized and concrete injury.
The barriers Plaintiff encountered when she tried to access Defendant’s
website constitute a concrete and particularized injury for purposes of establishing
Article III standing. See Spokeo, 136 S. Ct. at 1543 (“A concrete injury need not be
a tangible injury.”); see also Doran, 524 F.3d at 1042 n. 5 (“[T]he access barriers
that . . . plaintiff actually encountered or about which he had personal knowledge []
‘confer’ standing on him under Article III.”). Because of these barriers, Plaintiff
has been denied the ability to effectively browse for Defendant’s services and
locations, determine eligibility for membership, and compare Defendant’s services
and advantages with its competitors. See Gniewkowski v. Lettuce Entertain You
Enterprises, Inc., 251 F. Supp. 3d 908, 913 (W.D. Pa. 2017) (holding that the
plaintiffs sufficiently pled an injury-in-fact where they alleged inability to conduct
online research or compare financial services and products).
Moreover, such barriers to access “result in exclusion, segregation, and other
differential treatment of persons with disabilities—precisely the types of systemic
discrimination the ADA seeks to erase.” Nanni v. Aberdeen Marketplace, Inc., 878
F.3d 447, 455 (4th Cir. 2017).

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Because Plaintiff seeks injunctive relief, despite having demonstrated that
she suffered a concrete and particularized injury, she must also demonstrate that
she faces a real or immediate threat that she will be wronged again. City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983) (internal citation omitted). The Court
agrees with Defendant that the Complaint does not satisfy this additional
requirement, as it is devoid of allegations concerning Plaintiff’s plans or intent to
use Defendant’s services in the future. Nonetheless, seeing as Plaintiff also seeks
compensatory damages in this action, this technicality is not dispositive. In the
interest of justice, the Court grants Plaintiff’s request for leave to amend the
Complaint, so that she may pursue her claim for injunctive relief in conjunction
with her claim for damages. See Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S.
178, 182 (1962).
B. Redressability
This element of standing requires Plaintiff to show that a favorable decision
by the Court will redress the injury of which she complains. Larsen v. Valente, 456
U.S. 228, 270 (1982). “Redressability thus requires that prospective relief will
remove the harm, and the plaintiff must show that [s]he personally would benefit
in a tangible way from the court’s intervention.” Am. Civil Liberties Union v. Nat’l
Sec. Agency, 493 F.3d 644, 670 (6th Cir. 2007) (internal citations and quotation
marks omitted).
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Defendant argues that a ruling in Plaintiff’s favor would not redress her
alleged injury because, as a non-member of the credit union, Plaintiff would still be
prohibited from utilizing its services notwithstanding any modification to its
website.
Defendant’s argument mistakenly assumes that the harm Plaintiff seeks to
remedy is her inability to use Defendant’s services. But, the harm for which
Plaintiff seeks relief is her inability to access Defendant’s website. As a result of
the barriers on Defendant’s website, Plaintiff is unable to effectively browse for
Defendant’s locations, services, and membership eligibility. An order requiring
Defendant to comply with Title III would provide Plaintiff with the opportunity to
access the website and explore Defendant’s amenities – precisely the same
opportunity Defendant already affords to sighted individuals who are also nonmembers.
II. Plaintiff has stated a claim for relief under the ADA
Title III of the ADA provides:
No individual shall be discriminated against on the basis of disability
in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or
operates a place of public accommodation.
42 U.S.C. § 12182(a).2

“The PWDCRA substantially mirrors the ADA, and resolution of a plaintiff’s
ADA
claim
will
generally,
though
not
always,
resolve
the

2

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“The phrase public accommodation is defined in terms of 12 extensive
categories, which the legislative history indicates ‘should be construed liberally’ to
afford people with disabilities ‘equal access’ to the wide variety of establishments
available to the nondisabled.” PGA Tour, 532 U.S. at 676–77.
It is undisputed that a credit union constitutes a place of public
accommodation. However, the circuits are split on the issue of the applicability of
Title III to websites associated with places of public accommodation. Courts
within the First, Second, and Seventh circuits have held that the ADA may “apply
to a website independent of any connection between the website and a physical
place.” Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1318 (S.D. Fla. 2017)
(internal citations omitted). On the other hand, courts within the Third, Ninth, and
Sixth circuits have held “that goods and services provided by a public
accommodation must have a sufficient nexus to a physical place in order to be
covered by the ADA.” Id. (internal citations omitted).
Defendant argues that Title III does not apply to its website because the
Sixth Circuit has limited the applicability of Title III to physical structures.
Defendant further argues that even if Title III applied to non-physical locations,

plaintiff’s PWDCRA claim.” Donald v. Sybra, Inc., 667 F.3d 757, 764 (6th Cir.
2012) (internal citation and quotation marks omitted). Because neither party asks
the Court to treat Plaintiff’s ADA claim differently than her PWDCRA claim, the
Court analyzes the claims together. See id.
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Plaintiff has failed to allege a nexus between the website and the location to
qualify for relief under the statute.
Defendant relies on Stoutenborough v. Nat’l Football League, Inc., 59 F.3d
580 (6th Cir. 1995) and Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir.
1997). In Stoutenborough, the plaintiff, a hearing impaired individual, argued that
the NFL’s “blackout rule,” which prohibited local broadcasters from televising
home games that were not sold out, violated Title III because it denied him access
to televised football games. 59 F. 3d at 582. The Sixth Circuit rejected this
argument explaining that “the prohibitions of Title III are restricted to ‘places’ of
public accommodation, disqualifying the [NFL], its member clubs, and the media
defendants.” Id. at 583. The Court further observed that the service the plaintiff
sought did not involve a place of public accommodation. Id.
Moreover, in Parker, the Sixth Circuit reaffirmed that Title III applies to
physical places of public accommodation. At issue in Parker was an employer’s
disability benefits plan that afforded longer benefits to employees who became
disabled from physical illness than to employees who became disabled from
mental illness. 121 F.3d 1006. In denying the plaintiff’s claim for relief under the
ADA, the Court explained that Title III was inapplicable to her claim because she
challenged the disparity in a benefits plan offered by her employer, as opposed to a
plan offered by a physical insurance office.
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The Court further explained that the plaintiff was not entitled to relief
because there was “no nexus between the disparity in benefits [offered by the
employer] and the services which MetLife offers to the public from its insurance
office.” Id. at 1011 (internal citation omitted). Ultimately, the Court held that the
disability plan was not a “good offered by a public place of accommodation,”
emphasizing that “a public accommodation is a physical place[.]” Id. at 1014.
Defendant’s interpretation of Stoutenborough and Parker as precluding
relief under Title III for all claims concerning websites is misplaced. Parker does
not stand for the proposition that a “plaintiff must physically enter a place of public
accommodation in order to state a claim under Title III of the ADA.” Castillo v.
Jo-Ann Stores, LLC, 286 F. Supp. 3d 870, 876 (N.D. Ohio 2018). In fact, the Sixth
Circuit “expressed no opinion as to whether a plaintiff must physically enter a
public accommodation to bring suit under Title III as opposed to merely accessing,
by some other means, a service or good provided by a public accommodation.”
Parker, 121 F.3d 1006, 1011 fn.3.
Courts have construed Parker as adopting the “nexus theory.” See, e.g.,
Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 33 n. 3 (2d Cir. 1999), opinion
amended on denial of reh’g, 204 F.3d 392 (2d Cir. 2000); Castillo, 286 F. Supp. 3d
at 876; Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 388 (E.D.N.Y.

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2017); Gil, 242 F. Supp. 3d at 1319; Nat’l Fed’n of the Blind v. Scribd Inc., 97 F.
Supp. 3d 565, 569 (D. Vt. 2015).
Under this theory, discrimination in violation of Title III exists “if the
discriminatory conduct has a ‘nexus’ to the goods and services of a physical
location.” Andrews, 268 F. Supp. 3d at 388. In other words, an “inaccessible
website of a brick-and-mortar retail store could run afoul of the ADA if the
website’s inaccessibility interferes with the ‘full and equal enjoyment’ of the goods
and services offered at the physical store.” Id. at 389.
In Castillo, the Northern District of Ohio, applying Parker, recently held
that a visually-impaired plaintiff had stated a Title III claim against a retailer for
denying her full and equal enjoyment of its website. 286 F. Supp. 3d at 876-77.
The Court ruled that the plaintiff had stated a Title III claim because she alleged a
sufficient nexus between the defendant’s website and its in-person stores. Id. at
877. To support its finding of a sufficient nexus, the Court referred to the following
paragraphs in the complaint:
28. The goods and services offered by Defendant’s website include,
but are not limited to the following: find store locations; learn about
sales, offers and discounts (both in-store and online); the ability to
browse product selections and to find product information; and make
purchases.
36. Similarly, the access barriers Plaintiff encountered on Defendant’s
website have deterred Plaintiff from visiting or locating brick-andmortar stores selling Defendant’s products.
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37. While attempting to navigate Joann.com, Plaintiff encountered
multiple accessibility barriers for blind or visually-impaired people
that include, but are not limited to:
b.

Plaintiff encountered links and buttons that are inactive
or otherwise not accessible by keyboard. Plaintiff visited
Defendant’s website to shop for craft supplies and to
locate a store; however, she encountered cursor traps that
rendered the site inaccessible via screen-reader,
unlabeled links that stymied her search, and forms that
were unintelligible such that she could not place an order.

Id. at 880-81.
In this case, the Complaint sufficiently alleges a nexus between Defendant’s
website and its brick-and-mortar locations. Similar to Castillo, in which the
retailer’s website provided goods and services including information regarding
store locations, sales, and products, here, Defendant’s website provides goods and
services including a store locator, descriptions of amenities, and information about
the services Defendant offers. Compl., ¶ 4. Moreover, like Castillo, in which the
barriers to access deterred the plaintiff from visiting the defendant’s brick-andmortar stores, in this case, the access barriers on Defendant’s website have deterred
Plaintiff from visiting Defendant’s physical locations. Compl., ¶ 15.
In today’s world, accessing the internet is perhaps the most convenient and
efficient way for the public to receive information about businesses and their
services. In light of our tech-dependent reality, Defendant’s argument that its
website is insufficiently linked with its physical locations is simply illogical.
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Because Plaintiff has alleged a nexus between Defendant’s branches and its
website, Title III is applicable to Plaintiff’s claims.3
III.

Plaintiff’s request for injunctive relief does not violate due process

“[D]ue process requires a statute to give adequate notice of its scope.”
Botosan v. Paul McNally Realty, 216 F.3d 827, 836 (9th Cir. 2000) (citing
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
Defendant argues that Plaintiff’s request for injunctive relief violates due
process because neither the ADA itself nor its regulations provide website
accessibility guidelines. Without regulations from the Department of Justice on the
issue of website accessibility, Defendant maintains that it lacks adequate notice of
the modifications necessary for compliance with the ADA.
This argument is without merit. Title III is not “so indefinite in its terms that
it fails to articulate comprehensible standards to which a person’s conduct must
conform.” Id. Moreover, Plaintiff is simply seeking an order requiring Defendant
to comply with Title III; she is not dictating how Defendant must comply with the
statute. Castillo, 286 F. Supp. 3d at 882. Therefore, Plaintiff’s request for relief
does not violate due process.
Plaintiff argues that the plain language of Title III covers goods and services
including websites, citing district courts within the First Circuit to support her
interpretation. But, Parker forecloses such a reading of the ADA in this Circuit.
Because the Court reaches its conclusion through its application of the nexus
theory, it need not address whether the website itself constitutes a place of public
accommodation. See Castillo, 286 F. Supp.3d at 881.

3

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CONCLUSION
The purpose behind the ADA is “to remedy widespread discrimination
against disabled individuals.” PGA Tour, 532 U.S. at 674. Preventing Plaintiff
from pursuing her claims would only serve to thwart this laudable goal. The
barriers to access Plaintiff has faced constitute an injury-in-fact for purposes of
establishing standing. Furthermore, there is a clear nexus between Defendant’s
website and its branch locations for purposes of stating a claim under Title III.
Accordingly,
IT IS ORDERED that Defendant’s Motion to Dismiss [6] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s request for leave to amend
her complaint is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a
Response [34] is DENIED as moot.
SO ORDERED.

Dated: July 20, 2018

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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