Lowell v. Lyft, Inc.
Filing
49
OPINION & ORDER re: 31 MOTION to Dismiss the Amended Complaint. filed by Lyft, Inc.., For the foregoing reasons, Defendant's Motion to Dismiss the Amended Complaint is GRANTED in part and DENIED in part. Defendant's moti on to dismiss Plaintiffs' NYCHRL claim is GRANTED and Defendant's motion to dismiss Plaintiff WDOMI's NYSHRL claim is GRANTED. Defendant's motion to dismiss Plaintiffs' ADA claims and Plaintiff Lowell's NYSHRL claim is DENIED. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 31. Defendant shall file its answer on or before December 20, 2018. The parties are directed to appear before this Court for an initial pre-trial conferenc e on January 4, 2019 at 10:00 AM. The parties are also directed to confer, complete, and submit to the Court the attached amended case management plan before the initial pre-trial conference. This constitutes the Court's Opinion and Order. SO ORDERED., Lyft, Inc. answer due 12/20/2018., Initial Conference set for 1/4/2019 at 10:00 AM before Judge Nelson Stephen Roman. (Signed by Judge Nelson Stephen Roman on 11/29/2018) (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HARRIET LOWELL and WESTCHESTER
DISABLED ON THE MOVE, INC., individually and
on behalf of all others similarly situated,
No. 17-cv-6251 (NSR)
OPINION & ORDER
Plaintiffs,
-againstLYFT, INC.,
Defendant.
NELSON S. ROMAN, United States District Judge
Plaintiffs Harriet Lowell and Westchester Disabled on the Move, Inc. ("WDOMI"), on
behalf of themselves and all others similarly situated, bring this putative class action against
Defendant Lyft, Inc. in their amended complaint filed on December 6, 2017 ("Amended
Complaint," ECF No. 20). Plaintiffs assert claims under Title III of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12184; New York State Human Rights Law
("NYSHRL"), N.Y. Exec. Law §§ 290 - 97; and New York City Human Rights Law
("NYCHRL"), N. Y. City Admin. Code §§ 8-101
31. 1 Presently before the Court is
Defendant's Motion to Dismiss the Amended Complaint pursuant to Federal Rules of Civil
Procedure Rules 12(b)(1) and 12(b)(6) ("Defendant's Motion," ECF No. 31 ). For the following
reasons, Defendant's motion is GRANTED in part and DENIED in part.
1
Plaintiffs also submitted a motion for the appointment of interim lead counsel, but on March 23, 2018,
Plaintiffs withdrew this request without prejudice (ECF No. 30).
BACKGROUND
I.
Factual Background
The following facts are derived from the Amended Complaint and the documents
appended thereto, and are assumed to be true for the purposes of this motion.
Plaintiff Lowell resides in White Plains, New York and typically uses a motorized
scooter to travel. (Am. Compl.
,r,r 12 -
13.) To assist her in travel throughout Westchester
County and in her bi-monthly trips to New York City, Plaintiff Lowell would like to use
Defendant's transportation services. (Id.
,r,r 14, 102.)
PlaintiffWDOMI is a Yonkers, New York
nonprofit, run largely by individuals with disabilities, and operates as an independent living
center for individuals with disabilities. (Id.
,r,r 18 -
19.) WDOMI's mission includes the
"empower[ing] people with disabilities to control their own lives, advoca[ting] for civil rights
and a society free of barriers to people with disabilities" and "ensuring that people with mobility
disabilities are able to effectively use the transportation services they require." (Id.
,r,r 20 -
21.)
Members of WDOMI "have been and will be injured" as a result of Defendant's actions,
described below. (Id.
,r 22.)
By downloading Defendant's ride-hailing application, a customer can remotely hail a
nearby vehicle, select her destination, and pay through a payment method saved in the
application. (Id.
,r,r 24, 29.)
,r 33.)
Defendant operates both in White Plains and in Westchester County. (Id.
Unlike New York's Boro Taxi services, or "for hire" livery services, Defendant is
not subject to the Taxi and Limousine Commission's ("TLC") rules and regulations of
accessibility for disabled individuals. (Id.
,r 35.)
While Defendant requires that its New York
City drivers register with the TLC, Defendant is not subject to the TLC's 2014 agreement to
2
make fifty percent of all taxis operating in New York City wheelchair accessible by 2020. (Id.
,r
36.)
Plaintiffs allege that Defendant "pervasively and systematically" excludes people with
mobility disabilities from its convenient transportation services. (Id.
,r 38.)
To support this
allegation, Plaintiffs note that Defendant does not make wheelchair accessible vehicles
("WAVs") available in Westchester County; individuals who attempt to hail wheelchair
accessible rides in that county receive a text message with alternative transportation services.
(Id.
,r,r 46, 48.)
In areas where WAVs are available, users with mobility disabilities must toggle
to the "Access Mode" function in Defendant's smartphone application to be matched with a
WAV, and those individuals often experience long wait times. (Id.
,r,r 47, 49.)
While there are
transportation alternatives to the service offered by Defendant, none are replacements for
Defendant's services. New York City's subway is largely impossible for people with disabilities
to use and its bus system is limited and "largely inefficient." (Id.
,r,r 41 -
42.) Taxicabs do not
offer the same convenience provided by Defendant's service, which includes the ability to pay
without using cash or presenting a credit card to the driver. 2 (Id.
,r,r 87 -
88.) Trips around
Westchester County are difficult for Plaintiff Lowell because there is limited local paratransit.
(Id. ,I 105.)
Plaintiff Lowell learned of Defendant's ongoing discrimination from "friends and
acquaintances who have mobility disabilities and have witnessed [Defendant]'s failure to provide
equivalent, non-discriminatory service." (Id.
,r 100.)
A friend from White Plains told Plaintiff
he tried to order an accessible Lyft, was informed that none were available, and received a text
2
New York City taxicabs now offer the Curb application, which enables users to hail and pay for a taxi
from their smartphones, much like the service offered by Defendant. Curb: The Taxi App,
https://mobileapp.gocurb.com/ (last visited Nov. 21, 2018).
3
message from Defendant telling him to obtain an alternate method of transit. (Id.) Because
Defendant does not provide WAVs, Plaintiff Lowell and members of the putative class have
been deterred from downloading Defendant's application or trying to access Defendant's
services as any attempt would be futile even though access to Defendant's services would
improve their lives. (Id. ,i,r 101, 116.) If Plaintiff Lowell had equal access to Defendant's
services, she would be able to travel about Westchester County more often. (Id. ,i 105.)
Additionally, Plaintiff Lowell would be able to visit New York City on a more frequent basis.
(Id. ,i 104.) Currently, she goes to and from New York City approximately twice a month and,
because she cannot use Defendant's services, she must rely on her husband to transport her in
their WAV. (Id. ,r 102.)
Due to Defendant's failure to provide equal, accessible transportation, Plaintiffs cannot
benefit from Defendant's services. Plaintiffs allege that Defendant's actions are in violation of
the ADA, NYSHRL and NYCHRL. Plaintiffs request declaratory and injunctive relief under the
ADA and compensatory damages in addition to declaratory and injunctive relief under the
NYSHRL and NYCHRL. Specifically, Plaintiffs request that the Court require Defendant to
develop and implement a remedial plan to ensure full and equal access to its services.
Defendant moves to dismiss Plaintiffs' Amended Complaint due to lack of standing, the
existence of an arbitration agreement in Defendant's terms of Service, and Plaintiffs' failure to
state a claim.
LEGAL STANDARD
When a court lacks the statutory or constitutional power to adjudicate a case, it should
dismiss the case for lack of subject matter jurisdiction under Rule 12(b)(1 ). Nike, Inc. v.
Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011 ). "A plaintiff asserting subject matter jurisdiction
4
has the burden of proving by a preponderance of the evidence that it exists." Morrison v. Nat'!
Aust!. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000)). In assessing whether there is subject matter jurisdiction, the Court
must accept as true all material facts alleged in the complaint, Conyers v. Rossides, 558 F.3d
137, 143 (2d Cir. 2009), but "the court may resolve [any] disputed jurisdictional fact issues by
referring to evidence outside of the pleadings." Zappia Middle E. Const. Co. v. Emirate ofAbu
Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). Lack of standing may be grounds for dismissal under
Rule 12(b)(l). See Buonasera v. Honest Co., 208 F. Supp. 3d 555, 560 (S.D.N.Y. 2016).
To survive a Rule 12(b)(6) motion, a complaint must plead "enough facts to state a claim
to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
claim is facially plausible when the factual content pleaded allows a court "to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). "While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations." Id. at 679. A complaint must supply "factual
allegations sufficient 'to raise a right to relief above the speculative level' "to move beyond a
motion to dismiss. ATS] Commc 'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(quoting Twombly, 550 U.S. at 555). In deciding a motion to dismiss, a court must take all
material factual allegations as true and draw reasonable inferences in the non-moving party's
favor. Iqbal, 556 U.S. at 678. However, the court is" 'not bound to accept as true a legal
conclusion couched as a factual allegation,' " or to credit "mere conclusory statements" or
"[t]hreadbare recitals of the elements of a cause of action." Id. (quoting Twombly, 550 U.S. at
555).
5
Further, a court is generally confined to the facts alleged in the complaint for the
purposes of considering a motion to dismiss pursuant to 12(b)(6). Cartee Indus. v. Sum Holding
L.P., 949 F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the
complaint, statements or documents incorporated into the complaint by reference, matters of
which judicial notice may be taken, public records, and documents that the plaintiff either
possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706
F.3d 145, 152 (2d Cir. 2013).
DISCUSSION
I.
Standing
The Court must first address whether Plaintiffs have standing to bring their Amended
Complaint before dete1mining whether Plaintiffs have stated a plausible claim for relief. See
Buonasera v. Honest Co., 208 F. Supp. 3d 555,560 (S.D.N.Y. 2016) (noting that comis should
consider jurisdictional issues such as standing first in a motion to dismiss analysis). A1iicle III
requires federal comis to adjudicate actual cases and controversies. U.S. Const. art. III, § 2, cl. 1.
To ensure that there is a case or controversy, the Supreme Comi has held that paiiies before
federal courts must have standing to bring their claims. Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992). A plaintiff has standing if she has suffered "(1) an injury that is (2) 'fairly
traceable to a defendant's allegedly unlawful conduct' and that is (3) 'likely to be redressed by
the requested relief.'" Id. 560-61 (quotingA!lenv. Wright, 468U.S. 737,751 (1984)). Forthe
purposes of standing, an injury must be an injury in fact, meaning "an invasion of a legally
6
protected interest which is (a) concrete and patiicularized ... and (b) actual or imminent, not
'conjectural' or 'hypothetical.'" Id. at 560 (citations and quotation marks omitted).
Where, as here, standing is challenged at the pleadings stage, a court must "accept as true
all material allegations of the complaint, and must construe the complaint in favor of the
complaining patiy." United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998) (internal quotation
marks omitted). "To survive the motion to dismiss, the pleadings must only 'allege facts that
affirmatively and plausibly suggest that [Plaintiffs have] standing to sue.' "Boelter v. Hearst
Commc'n, Inc., 192 F. Supp. 3d 427,437 (S.D.N.Y. 2016) (quotingAmidax Trading Grp. v.
S. WIF. T., 671 F.3d 140, 145 (2d Cir. 2011)). A plaintiffs "standing allegations need not be
crafted with precise detail." Baur v. Veneman, 352 F.3d 625, 631 (2d Cir. 2003).
When a claim arises from a civil rights statute, such as the ADA, comis must exercise
special care in conducting a standing analysis. "The Supreme Court has instructed courts to take
a broad view of constitutional standing in civil rights cases, especially where, as under the ADA,
'complaints by private persons are the primary method of obtaining compliance with the Act.' "
Fiedler v. Ocean Prop., Ltd., 683 F. Supp. 2d 57, 65 (D. Me. 2010) (quoting Trafficante v.
Metro. Life Ins., Co., 409 U.S. 205,209 (1972)); see also Harty v. Spring Valley Marketplace
LLC, No. 15-CV-8190(NSR), 2017 WL 108062, at *6 (S.D.N.Y. Jan. 9, 2017); Baker v. NY
State Dep't ofEnvtl. Conservation, No. 10-CV-1016 (GLS)(RFT), 2012 WL 2374699, at *2
(N.D.N.Y. June 22, 2012).
A. Plaintiff Lowell
Defendant argues that Plaintiff Lowell lacks standing to bring this action because she
failed to identify a concrete injury as she did not sign up for Defendant's application or otherwise
attempt to obtain a ride from Defendant. (Def.'s Mot. p. 12.) To plausibly demonstrate the first
7
element of standing, injury, an individual with a disability is not required to "engage in a futile
gesture if such person has actual notice that a person or organization covered by this subchapter
does not intend to comply with its provisions." 42 U.S.C. § 12188(a)(l). This Circuit has not
settled upon a clear definition of"actual notice."3 Kreisler v. Second Ave. Diner Corp., No. 10CV-7592(RJS), 2011 WL 4686500, at *2 (S.D.N.Y. Oct. 5, 2011). The majority of cases suggest
that "actual knowledge" under the futile gesture analysis comes from the plaintiff personally
witnessing the alleged accessibility issue. See Pickem v. Holiday Quality Foods, Inc., 293 F.3d
1133 (9th Cir. 2002); Perdum v. Forest City Ratner Cos., 174 F. Supp. 3d 706, 715 (E.D.N.Y.
2016); Shariffv. Radamar Meat Corp., No. 1 l-CV-6369(NGG)(RML), 2014 WL 1311563, at *2
(E.D.N.Y. Feb. 14, 2014); Small v. Gen. Nutrition Cos., 388 F. Supp. 2d 83, 88 - 89 (E.D.N.Y.
2005).
In cases where a plaintiff did not personally observe the accessibility issue in the
building, comis have generally held that the plaintiff lacked standing. The Eighth Circuit has
held that one plaintiff had standing because he entered the relevant building and observed the
facility before bringing the lawsuit and that other plaintiffs who did not enter or observe the
facility did not have standing. Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000). A New
York comi held that a list of ADA violations prepared after the inspection of a building was not
sufficient to establish actual knowledge. Access 4 All, Inc. v. Trump Int 'l Hotel and Tower
Condo., 458 F. Supp. 2d 160, 174- 75 (S.D.N.Y. 2006). Similarly, a Florida court held that
3
Actual notice is also referred to in case law as "actual knowledge." See, e.g., Perdum v. Forest City
Ratner Cos., 174 F. Supp. 3d 706, 714-15 (E.D.N.Y. 2016); Shariffv. Radamar Meat Corp., No. ll-CV6369(NGG)(RML), 2014 WL 1311563, at *2 (E.D.N.Y. Feb. 14, 2014); Access 4 All, Inc. v. Trump Int'! Hotel and
Tower Condo., 458 F. Supp. 2d 160. 173 (S.D.N.Y. 2006).
8
knowledge of accessibility conditions at a building derived from a website was not actual
knowledge. Resnick v. Magical Cruise Co., Ltd., 148 F. Supp. 2d 1298 (M.D. Fla. 2001).
The case before the Court is distinct from the cases discussed above in that Plaintiffs'
claims are not about access to a building, but access to transpmiation facilitated through a digital
application. "Congress clearly contemplated that 'service establishments' include providers of
services which do not require a person to physically enter an actual physical structure." Nat'!
Fed'n of the Blind of Cal. v. Uber Tech., Inc., 103 F. Supp. 3d 1073, 1083 (N.D. Cal. 2015)
(quoting Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, Inc., 37 F.3d
12, 13 (1st Cir. 1994)). Unlike accessibility conditions in a building, an individual cannot
personally observe the objectionable conditions in Defendant's service without downloading the
application, requesting a ride, and being refused. This would require Plaintiffs to engage in a
futile gesture, as they had actual knowledge that Lyft did not offer sufficient accessible
transpmiation for those with mobility disabilities. Plaintiffs plausibly allege that they had actual
knowledge of the accessibility issues with Defendant's service. Contrary to the Defendant's
statement that Plaintiff Lowell's knowledge of Defendant's accessibility issues was based on a
conversation with one person, the Amended Complaint alleges that Plaintiff Lowell had heard
from multiple people that requesting a ride through Defendant's application was futile for
individuals in need of WAVs. (Compl. ,i 100) (Def.'s Mot. p. 12.) Accordingly, taking a broad
view of constitutional standing and drawing all reasonable inferences in favor of Plaintiff
Lowell, as required at the motion to dismiss stage, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
Plaintiff Lowell plausibly claimed an injury for the purposes of standing.
Plaintiffs' Amended Complaint also plausibly establishes the second and third elements
of standing with respect to Plaintiff Lowell. Her injury, not having equal access to Defendant's
9
services, is fairly traceable to Defendant and the Court would likely be able to redress this injury
by requiring Defendant to comply with accessibility laws. (Compl. p. 28); See Reed v. 1-800
Flowers.com, 327 F. Supp. 3d 539, 550 (E.D.N.Y. 2018) (citing cases stating that courts may
require defendants to comply with the ADA).
Because Plaintiff Lowell meets each of the requirements for standing, Defendant's
motion to dismiss Plaintiff Lowell's claim for lack of standing is denied.
B. Plaintiff WDOMI
According to Defendant, Plaintiff WDOMI lacks associational or organizational standing
to file this action. (Def.' s Mot. pp. 13 - 18.)
l.
Associational Standing
An organization has associational standing if it can show that (1) its members would have
standing to sue in their own right; (2) the interests it seeks to protect relate to the organization's
purpose; and (3) neither the asserted claim nor the requested relief require the participation of
individual members of the lawsuit. Hunt v. Wash. State Apple Advert. Comm 'n, 432 U.S. 333,
343 (1977).
Plaintiffs' Amended Complaint establishes the first element; its members would have
standing to sue in their own right. Members of Plaintiff WDOMI, like Plaintiff Lowell, "rely on
compliance by public accommodations, including transportation services, with local, state, and
federal [accessibility] disability laws" and have been deterred from using Defendant's
transportation services because of Defendant's failure to comply with these laws. (Comp1. ,r,r 31,
116, 120 & 127.) Requiring Defendant to comply with accessibility laws would redress this
injury. (Id. p. 28); See Reedv. 1-800-Flowers.com, 327 F. Supp. 3d 539,550 (E.D.N.Y. 2018).
Thus, because the Amended Complaint contains sufficient facts to support a plausible claim that
10
members of Plaintiff WDOMI suffered an concrete and particularized injury, fairly traceable to
Defendant's conduct and able to be redressed by the Comi, the Court is satisfied that they
WDOMI members would independently have standing.
Plaintiff WDOMI easily satisfies the second element of associational standing. The
interests it seeks to protect through this lawsuit, equal and accessible access to transp01iation
public accommodations, fall squarely within its purpose. "A key component of WDOMI's
mission is ensuring that people with mobility disabilities are able to effectively use the
transportation services they require." (Compl. ,i 21.)
However, PlaintiffWDOMI does not establish the third element for its NYSHRL and
NYCHRL claims; it fails to plausibly show that neither Plaintiff WDOMI' s claim nor the relief
requested requires the participation ofWDOMI's members. "[W]here the organization seeks a
purely legal ruling without requesting that the federal comi award individualized relief to its
members, the Hunt test may be satisfied." Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d
Cir. 2004). In Hunt, the Supreme Court found that neither the interstate commerce claim nor the
requests for declaratory or injunctive relief required individualized proof and held that both
claims were properly resolved "in a group context." Hunt, 432 U.S. at 344. Here, unlike the
Plaintiffs in Hunt, Plaintiffs request compensatory damages in addition to declaratory and
injunctive relief for their NYSHRL and NYCHRL claims. (Compl. ,i 25.) A request for
compensatory damages, such as the request in Plaintiffs' Amended Complaint, requires the
participation of a group's individual members. Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d
638,651 (2d Cir. 1998).
11
Accordingly, Plaintiff WDOMI does not have associational standing for its NYSHRL and
NYCHRL claims because it fails to satisfy the third prong of the associational standing analysis
for those claims.
2.
Organizational Standing
To have organizational standing, an organization must establish that there is (1) an
imminent injury "to itself as an organization (rather than to its members) that is 'distinct and
palpable' "; (2) the injury is fairly traceable to the defendant's actions; and (3) the court can
redress the injury. Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay,
868 F.3d 104, 109 (2d Cir. 2017). For organizational standing, an organization is "just another
person-albeit a legal person-seeking to vindicate a right." NY. Civil Liberties Union v. NY.
City Transit Auth., 684 F.3d 286,294 (2d Cir. 2012).
Here, Plaintiff WDOMI fails to satisfy the first element, an injury to itself as an
organization. Plaintiff WDOMI states that it is injured because it must divert resources to
advocate "for its constituents who are harmed by Lyft's discriminatory policies and practices."
(Compl.
,r 22.)
This injury is not distinct from the matter before the Court. Rather, Plaintiff
WDOMI's stated injury results from WDOMI's efforts to pursue this very lawsuit. In Havens
Realty Corp. v. Coleman, the Supreme Court held that "concrete and demonstrable injury to an
organization's activities-with the consequent drain on the organization's resources-constitutes
far more than simply a setback to the organization's abstract social interests" and that such an
injury could be sufficient to establish organizational standing. 455 U.S. 363, 379 (1982).
However, lower courts disagree about how broadly Havens should be applied.
The circuit courts are split on whether litigation expenses alone is an injury sufficient to
support organizational standing. See Citizens for Responsibility and Ethics in Wash. v. Trump,
12
276 F. Supp. 3d 174, 192 (S.D.N.Y. 2017). Some circuit courts hold that the expenditure of
resources for litigation is insufficient to confer standing. People for the Ethical Treatment of
Animals v. US. Dept. ofAgric., 797 F.3d 1087, 1093 (D.C. Cir. 2015) ("[A]n organization's
diversion of resources to litigation or to investigation in anticipation of litigation is considered a
'self-inflicted' budgetary choice that cannot qualify as an injury in fact for purposes of
standing."); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247,285 (3d Cir. 2014) (holding that
organizations do not satisfy the injury-in-fact requirement of standing by "making expenditures
solely for the purpose of litigation"). Other circuit courts adopt a broader interpretation of
Havens and hold that diversion of resources from core organizational activities to litigation
challenging a defendant's conduct is a sufficient injury for organizational standing so long as the
injury is concrete. See N.A.A.C.P. v. City of Kyle, 626 F.3d 233,239 (5th Cir. 2010) (holding
that an organization's alleged injury, examining developments in local zoning ordinances, was
"simply a setback to the organization's abstract social interests" and not a diversion ofresources
sufficient to show a concrete injury); Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 905
(2d Cir. 1993). In Ragin, an organization challenged the use of only white models in
advertisements for housing and alleged that it sustained an injury because the defendant's actions
forced the organization to identify and counteract the defendant's advertising practices. Ragin, 6
F .3d at 901. The Second Circuit agreed and held that the organization had an injury sufficient to
supp01i organizational standing. Id. at 905.
After Ragin, some courts in this Circuit have found standing where a defendant's conduct
interferes with or otherwise burdens an organization's ability to pursue its usual activities. See
Centro de la Comunidad Hispana de Locust Valley, 868 F.3d at 110; N. Y Civil Liberties Union,
684 F.3d at 295. Other courts have extended Havens further and held that an organization has
13
standing when it is forced to "expend resources to prevent some adverse or harmful consequence
on a well-defined and particularized class of individuals." See Olsen v. Stark Homes, Inc., 759
F.3d 140, 158 (2d Cir. 2014); Citizens for Responsibility and Ethics in Wash., 276 F. Supp. 3d at
190 (holding that the organization, interested in protecting citizens' rights to be informed of
government activity, did not have standing because it made the choice to challenge the
defendant's actions and was not attempting to prevent or reverse adverse effects). In Olsen,
Long Island Housing Services ("LIHS"), along with other plaintiffs, claimed that the defendant
discriminated against individuals based on their disabilities in violation of the Fair Housing Act.
Olsen, 759 F.3d at 143. To determine whether the defendant's actions were discriminatory in
violation of the Fair Housing Act, LIHS sent testers to the defendant's facility. Id. at 143 - 44.
LIHS then submitted administrative complaints, based on information from the testers, to the
Department of Housing and Urban Development. Id. at 144. These complaints were submitted
before the plaintiffs commenced their suit against the defendant in federal court. Id. The court
held that LIHS' s allegations that it expended resources by sending testers to the defendant was a
concrete and particularized injury. Id. at 158.
Here, Plaintiff WDOMI fails to plausibly allege that it sustained an injury sufficient to
support organizational standing. Unlike LIHS in Olsen, PlaintiffWDOMI does not allege that
Defendant's conduct caused it to expend any resources separate from this litigation or that it was
·otherwise impeded in its ability to pursue its mission. There is no indication in the Amended
Complaint that Defendant WDOMI conducted any sort of investigation or otherwise expended
resources because of Defendant's conduct at issue before this action. Plaintiff WDOMI claims
that it suffered injury "in the form of diversion of [its] resources and frustration of its mission,"
but this allegation is conclusory and unsupported by any facts in the Amended Complaint.
14
(Compl. ,i 22.) The Amended Complaint does not include any facts, beyond the aforementioned
conclusory allegation, to plausibly support that Defendant's conduct interfered WDOMI's ability
to pursue its mission or that it was forced to divert resources to prevent an adverse consequence,
like LIHS in Olsen. Thus, PlaintiffWDOMI fails to establish an injury to itself as an
organization, the first element of organizational standing.
Thus, because Plaintiff WDOMI cannot satisfy all of the elements for organizational
standing and cannot satisfy all of the elements for associational standing specifically for its
NYCHRL and NYSHRL claims, WDOMI only has standing to pursue its ADA claim.
II.
Enforcement of Arbitration Clause
Defendant next argues that the arbitration waiver in its terms of Service ("TOS") applies
to Plaintiffs' claims under the direct benefits estoppel doctrine, even though Plaintiffs did not
sign up for Defendant's application or agree to the TOS. (Def.'s Mot. p. 8.) Defendant's TOS
"explicitly states that the claims subject to arbitration include claims alleging discrimination and
claims under the ADA." (Id. p. 9.) Non-signatories can be bound to arbitration agreements under
five distinct theories: "(1) incorporation by reference; (2) assumption; (3) agency; (4) veilpiercing/alter ego; and (5) estoppel." Am. Bureau ofShipping v. Tencara Shipyard S.P.A., 170
F.3d 349, 352 (2d Cir. 1999). Defendant moves to dismiss under the estoppel theory, which
states, "A party is estopped from denying its obligation to arbitrate when it receives a
'direct benefit' from a contract containing an arbitration clause." Am. Bureau of Shipping, 170
F.3d at 353. 4 Benefits may be direct, meaning coming directly from the agreement, or they may
4
Defendant cites to Robinson Brog Leinwand Greene Genovese & Gluck P. C. v. John M O 'Quinn &
Associates, L.L.P., which describes the doctrine as follows: "When a non-signatory plaintiff seeks the benefits ofa
contract that contains an arbitration provision, it is estopped from 'denying its obligation to arbitrate.' " 523 F.
App'x 761,763 (2d Cir. 2013); (Def.'s Mot. p. 9.) However, the majority of Second Circuit opinions, as well as
opinions from other circuit courts, describe the requisite benefit under this doctrine as something that the plaintiff
has already received, not something she seeks. Compare Hirsch v. Citibank, NA., 542 F. App'x 35, 37 (2d Cir.
2013); AICO Int'!, E.C. v. Merrill Lynch & Co., 98 F. App'x 44, 46 (2d Cir. 2004); Spechtv. Netscape Commc'ns
15
be indirect in that the non-signatory "exploits the contractual relation of parties to the agreement,
but does not ... [assume] the agreement itself." Boroditskiy v. European Specialties LLC, 314 F.
Supp. 3d 487,495 (S.D.N.Y. 2018) (quoting MAG Portfolio Consultant, GMBH v. Merlin
Biomed Grp. LLC, 268 F.3d 58, 61 (2d Cir. 2001)).
However, Plaintiffs here have not received a benefit from Defendant's TOS; that is the
whole problem. Plaintiffs' entire claim is that they are unable to benefit from Defendant's
services due to Defendant's failure to accommodate their disabilities. (Compl.
,r,r 103, 107 &
109.) It seems supremely unjust to hold individuals to an arbitration clause buried in the
verbiage of a terms of service of agreement for a service that they did not sign up for,
particularly when those individuals have not received any benefits from the agreement, direct or
indirect. Courts have upheld arbitration agreements in terms of service contracts because the
plaintiffs were presented with the opportunity to review the terms in the form of a hyperlink
before signing up for the service. See Bassett v. Elec. Arts Inc., 13-CV-4208(MKB)(SMG), 2015
WL 1298644, at *4 (E.D.N.Y. Feb. 9, 2015); Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 839
40 (S.D.N.Y. 2012). Unlike the plaintiffs in those cases, Plaintiffs here did not sign up for
Defendant's service and do not allege that they were ever presented with the TOS to review.
Requiring Plaintiffs to arbitrate under the TOS would hold them to an arbitration clause in an
agreement they neither signed up for nor benefited from, and therefore direct benefits estoppel
does not apply.
Corp., 206 F.3d 17, 39 (2d Cir. 2002); MAG Portfolio Consultant, GMBH v. Merlin Biomed Grp. LLC, 268 F.3d 58,
61 (2d Cir. 2001); Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d Cir. 1999); Ried v.
Doe Run Res. C01p., 701 F.3d 840,846 (8th Cir. 2012); Pacific Unidata Ltd. v. Avon Prod. Inc., 107 F. App'x 754,
755 (9th Cir. 2004); Bridas S.A.P.I.C. v. Turkmenistan, 345 F.3d 347, 361- 62 (5th Cir. 2003); Int'! Paper Co. v.
Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411,418 (4th Cir. 2000), with Robinson Brog Leinwand
Greene Genovese & Gluck P.C., 523 F. App'x at 763; World Omni Fin. C01p. v. Ace Capital Re Inc., 64 F. App'x
809, 812 (2d Cir. 2003). Because the majority of Second Circuit opinions support the latter definition and have not
been overruled, the Court will proceed under that definition.
16
Because Plaintiffs have not agreed to Defendant's TOS and are not otherwise estopped
from avoiding the arbitration agreement in the TOS, the Court will analyze whether Plaintiffs
plausibly establish violations under the ADA, NYSHRL, and NYCHRL.
III.
Plaintiffs' Civil Rights Claims
A. Title III ADA
According to Defendant, Plaintiffs fail to state a plausible claim for relief because "the
only relief they seek-that the Court order Lyft to provide WAVs-is not available as a matter of
law." (Def.'s Mot. p. 20.) However, as Plaintiffs acknowledge, the Amended Complaint does
not include a specific request that Defendant be required to provide WAVs but does request that
the Defendant be required to "develop and implement a remedial plan to ensure full and equal
access to its services." (Compl. p. 28) (Pls.' Opp'n pp. 17 - 18.)
Whether the Court has the authority to require Defendant to provide WAVs is irrelevant
at this stage. On a motion to dismiss, the Court must only determine whether Plaintiffs stated a
claim for relief that is plausible on its face and is obligated to draw all reasonable inferences in
Plaintiffs' favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Amended Complaint contains
numerous factual allegations surrounding Defendant's failure to provide WAVs. However,
Plaintiffs' request for relief is not that the Court require Defendant to provide WAVs but that the
Court (1) declare that Defendant's policies and practices violate the ADA; (2) enjoin Defendant
from further violations of the ADA; and (3) require that Defendant develop and implement a
plan to ensure equal access to its services. (Compl. p. 28.) Drawing all reasonable inferences is
Plaintiffs' favor, the Court interprets the allegations surrounding Defendant's deficient WAV
offerings as supp01i for Plaintiffs' claim that Defendant violates the ADA by discriminating
against people with mobility disabilities and not as a request for relief. A request for injunctive
17
reliefrequiring compliance with the ADA, such as Plaintiffs' request for relief, is sufficient to
withstand a motion to dismiss. See Reedv. 1-800-Flowers.com, 327 F. Supp. 3d 539, 550-51
(E.D.N.Y. 2018). Accordingly, the Court finds that Plaintiffs' have requested a form ofrelief
which can be granted.
Defendant does not raise other grounds to dismiss Plaintiffs' Amended Complaint under
Rule 12(b)(6). Assuming Defendant also moves to dismiss Plaintiffs' ADA claim for failure to
plausibly allege each of the elements of the claim, the Court would still deny the motion to
dismiss. Under Title III of the ADA, "[n]o 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). To
state a claim for relief under Title III, a plaintiff must allege that (1) she is disabled within the
meaning of the ADA; (2) the defendants own, lease, or operate a place of public accommodation;
and (3) the defendants discriminated against her by denying her a full and equal opportunity to
enjoy the defendant's services. Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191, 198
- 99 (S.D.N.Y. 2016) (citing Camarillo v. Carrots Corp., 518 F.3d 153, 156 (2d Cir. 2008)).
Plaintiffs satisfy each element of an ADA claim based on the face of the Amended
Complaint. First, they meet the first element of an ADA claim by plausibly alleging that they are
individuals with disabilities within the meaning of the ADA. (Compl.
,r 127.)
Plaintiffs also
satisfy the second element for the purposes of this motion to dismiss, that Defendant operates a
public accommodation. Defendant disputes that it is a public accommodation in the business of
transportation and a covered entity under Title III of the ADA, but Defendant aclmowledges that
Plaintiffs allege it is a transportation company and that the Court is required to accept Plaintiffs'
18
allegations as true for the purpose of the motion to dismiss. (Def.'s Mot. p. 2); See
42 U.S.C. § 12181(7). The Amended Complaint states that Defendant operates a public
accommodation. (Compl., 132.) If Plaintiffs' statements on the face of the Amended
Complaint were not sufficient, the Court would still be unable to grant Defendant's motion to
dismiss on the issue of whether Defendant is a public accommodation. It is premature to decide
the question of whether a defendant is a public accommodation at the motion to dismiss phase.
Nat'! Fed'n of the Blind of Cal. v. Uber Tech., Inc., 103 F. Supp. 3d 1073, 1083 (N.D. Cal. 2015)
(denying the defendant's motion to dismiss because more factual development was required to
determine whether the defendant, Uber, was a public accommodation under the ADA); see
Ramos v. Uber Tech., Inc., No. 14-CA-502(XR), 2015 WL 758087, at *6 (W.D. Tex. Feb. 20,
2015) (denying the defendant's motion to dismiss and holding that the plaintiffs had not failed to
prove that Lyft and Uber offer public accommodations under the ADA). Therefore, the Court
will consider Defendant to be a covered entity under Title III of the ADA for the purposes of this
motion and finds that Plaintiffs have satisfied the second prong of the ADA analysis.
Finally, Plaintiffs state a facially plausible claim that Defendant discriminated against
Plaintiffs by denying them a full and equal opp01iunity to enjoy Defendant's services based on
their disabilities. In Lincoln Cercpac v. Health and Hospital Corp., the court granted the
defendant's motion to dismiss because the plaintiffs failed to allege that there was a service they
were being denied or that they were being denied equal access to a service. 977 F. Supp. 274,
280 (S.D.N.Y. 1997). Unlike the plaintiffs in Lincoln Cercpac, Plaintiffs in this case allege that
Defendant is denying them equal access to a service, specifically Defendant's transp01iation
services, because of their disabilities. (Compl. ,, 109- 10, 136, 137.)
19
Thus, Plaintiffs' ADA claim survives Defendant's motion to dismiss, assuming
Defendant also argues that Plaintiffs failed to plead a plausible ADA claim, because the
Amended Complaint contains sufficient facts to plausibly support each element of that claim.
B. NYSHRL
Claims under the NYSHRL are analyzed using the same standards that apply to the ADA.
Kemp v. Metro-North R.R., 316 F. App'x 25, 26 (2d Cir. 2009). Accordingly, the three element
test articulated in the Court's ADA analysis applies here. See Rosa, 175 F. Supp. 3d at 198 - 99.
As stated supra, for the purposes of this motion, there is no dispute that Plaintiffs are disabled
within the meaning of the ADA or that Plaintiffs have plausibly alleged that Defendant is a
public accommodation. Additionally, the Amended Complaint contains sufficient facts to
plausibly support Plaintiffs' claim that Defendant discriminated against them by denying them a
full and equal opportunity to enjoy its ridesharing services. (Compl.
,r,r 109 -
10, 136, 137.)
"Defendant denies individual [sic] who use motorized and other non-folding wheelchairs,
including Plaintiff Lowell [and] WDOMI members ... full and equal enjoyment of Defendant's
services." (Id.
,r 137.)
Because Plaintiffs have stated a facially plausible claim for each of the required elements,
Defendant's motion to dismiss the NYSHRL claim is denied.
C. NYCHRL
Comis "must analyze NYCHRL claims separately and independently from any federal
and state law claims" and must construe NYCHRL provisions broadly and in favor of the
plaintiff. Mihalikv. Credit Agricole Cheuvreux N Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013).
20
In Snowden v. Trustees of Columbia University, the Second Circuit held that the district court
properly dismissed a plaintiffs NYCHRL claim after conducting a separate analysis and
focusing on the "broad and remedial" aspects of the NYCHRL. 612 F. App'x 7, 10 (2d Cir.
2015).
Under NYCHRL, it is unlawful for any owner of a place or provider of public
accommodation to deny an individual full and equal enjoyment, on equal terms and conditions,
of accommodations or services based on an individual's disability. N.Y. City Admin Code§§ 8107(4). Unlike in Westchester County, Defendant offers WAVs in New York City. 5 (Compl.
,r,r
46- 49). The issue is, according to Plaintiffs, that there are long wait times for WAVs in New
York City for those individuals requiring WAVs because Defendant does not provide enough
such vehicles. (Id.
,r 49.)
There is no case law to indicate that extended wait times for a public
accommodation is a NYCHRL violation. While it is a NYCHRL violation to entirely exclude a
person with a disability from accessing a public accommodation, see All Island Airport Serv.,
Inc. v. NY State Div. of Human Rights, 127 A.D.3d 967,968 (N.Y. App. Div. 2015), that is not
the situation before the Court. Defendant offers, albeit in a small number, WAVs in New York
City. Analyzing Plaintiffs' NYCHRL claims separately, and construing the provisions broadly,
the Court finds that Plaintiffs failed to state a facially plausible claim under the NYCHRL
because they did not plausibly allege a NYCHRL violation.
5
By enabling access mode in the Lyft application, users seeking rides in New York City have the option to
hail a WAY. Lyft, https://help.lyft.com/hc/en-us/articles/115013081668-Accessible-vehicle-dispatch (last visited
Nov. 21, 2018). Courts may take judicial notice ofpublically available websites when the authenticity is not in
dispute. See Wells Fargo Bank, NA. v. Wrights Mill Holdings, LLC, 127 F. Supp. 3d 156, 167 (S.D.N.Y. 2015); In
re Bayer Co,p. Combination Aspirin Prod. Mktg. & Sales Practices Litig., 701 F. Supp. 2d 356, 367-68 (E.D.N.Y.
2010). Parties do not dispute the authenticity of the Lyft application or website. (Def.'s Mot. p. 7); (Compl. ,i 48
n.2.)
21
CONCLUSION
For the foregoing reasons, Defendant's Motion to Dismiss the Amended Complaint is
GRANTED in part and DENIED in part. Defendant's motion to dismiss Plaintiffs' NYCHRL
claim is GRANTED and Defendant's motion to dismiss PlaintiffWDOMI's NYSHRL claim is
GRANTED. Defendant's motion to dismiss Plaintiffs' ADA claims and Plaintiff Lowell's
NYSHRL claim is DENIED. The Clerk of the Court is respectfully directed to terminate the
motion at ECF No. 31. Defendant shall file its answer on or before December 20, 2018. The
parties are directed to appear before this Court for an initial pre-trial conference on January 4,
2019 at 10:00 AM. The parties are also directed to confer, complete, and submit to the Court the
attached amended case management plan before the initial pre-trial conference. This constitutes
the Comi' s Opinion and Order.
Dated:
November 29, 2018
White Plains, New York
/
,/
~~ON S. ROMAN
(_~ited States District Judge
22
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORI(
Rev. Jan. 2012
-------------------------------------------------------------x
Plaintiff(s),
CIVIL CASE DISCOVERY PLAN
AND SCHEDULING ORDER
Defendant(s).
_ _ CV _ _ _ _ (NSR)
- against -
-------------------------------------------------------------x
This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with
counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):
1.
All parties [consent] [do not consent] to conducting all further proceedings before
a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).
The parties are free to withhold consent without adverse substantive consequences.
(If all patties consent, the remaining paragraphs of this form need not be
completed.)
2.
This case [is] [is not] to be tried to a jury.
3.
Joinder of additional parties must be accomplished by
4.
Amended pleadings may be filed until _ _ _ _ _ _ _ __
5.
Interrogatories shall be served no later than _ _ _ _ _ _ _ _ _ , and responses
thereto shall be served within thiity (30) days thereafter. The provisions of Local
Civil Rule 33.3 [shall] [shall not] apply to this case.
6.
First request for production of documents, if any, shall be served no later than
7.
Non-expert depositions shall be completed by _ _ _ _ _ _ _ _ _ _ _ __
a.
Unless counsel agree otherwise or the Court so orders, depositions shall not
be held until all parties have responded to any first requests for production
of documents.
b.
Depositions shall proceed concurrently.
c.
Whenever possible, unless counsel agree otherwise or the Court so orders,
non-paity depositions shall follow paity depositions.
8.
Any further interrogatories, including expert interrogatories, shall be served no
later than - - - - - - - - - -
9.
Requests to Admit, if any, shall be served no later than
10.
Expert reports shall be served no later than - - - - - - - - - -
11.
Rebuttal expert repmis shall be served no later than - - - - - - - - - -
12.
Expert depositions shall be completed by _ _ _ _ _ _ _ _ __
13.
Additional provisions agreed upon by counsel are attached hereto and made a part
hereof.
14.
ALL DISCOVERY SHALL BE COMPLETED BY
15.
Any motions shall be filed in accordance with the Court's Individual Practices.
16.
This Civil Case Discovery Plan and Scheduling Order may not be changed without
leave of Comi ( or the assigned Magistrate Judge acting under a specific order of
reference).
17.
The Magistrate Judge assigned to this case is the Hon. _ _ _ _ _ _ _ _ __
18.
If, after entry of this Order, the parties consent to trial before a Magistrate Judge,
the Magistrate Judge will schedule a date ce1iain for trial and will, if necessary,
amend this Order consistent therewith.
19.
The next case management conference is scheduled for _ _ _ _ _ _ _ __
at _ _ _ _ _ . (The Court will set this date at the initial conference.)
SO ORDERED.
Dated: White Plains, New York
Nelson S. Roman, U.S. District Judge
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