Mitchell v. Dover-Phila Federal Credit Union

Filing 28

Memorandum of Opinion and Order For the reasons set forth herein, the Court grants Defendant Dover-Phila Federal Credit Union's Motion to Dismiss. ECF No. 5 . Plaintiff's Complaint is dismissed for lack of standing. Judge Benita Y. Pearson on 6/25/2018. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WALTER MITCHELL,
Plaintiff,
v.
DOVER-PHILA FEDERAL CREDIT
UNION,
Defendant.

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CASE NO. 5:18CV102

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER
[Resolving ECF No. 5]

Pending before the Court is Defendant Dover-Phila Federal Credit Union’s Motion to
Dismiss. ECF No. 5. Plaintiff Walter Mitchell has responded. ECF No. 16. Defendant has
replied. ECF No. 19. Also, Amici Ohio Credit Union League and Credit Union National
Association have filed an amicus brief in support of Defendant’s motion to dismiss. ECF No. 12.
For the following reasons, the Court grants Defendant’s motion.
I. Background
Plaintiff, an Ohio resident, is permanently blind. ECF No. 1 at PageID #: 2. Blind
individuals can access websites by using keyboards and screen-reading software that vocalizes
visual information that appears on a computer screen. Id. at PageID #: 4.

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Defendant is a federal credit union. Id. at PageID #: 3. In addition to having physical
locations, Defendant has a website that allows members to perform online banking services and
potential members to learn of the services Defendant offers to its members. Id.
Plaintiff alleges that he has tried to access Defendant’s website several times in recent
months, but he has been unable to do so. Id. at PageID #: 10. Plaintiff alleges that at least four
barriers preclude his ability to use the site: (1) the site lacks alternative text; (2) the site contains
empty links that do not include text; (3) the site has empty or missing labels; and (4) the site
contains redundant links. Id. at PageID #: 9-10. Plaintiff contends that each of these barriers
prevent or make it difficult to use screen-reading software. Id.
As a result, Plaintiff filed a lawsuit, alleging a violation of Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12181, et seq. ECF No. 1. In his complaint, Plaintiff seeks
injunctive relief, attorney’s fees, and costs. Id. at PageID #: 13-14.
Defendant has filed a motion to dismiss. ECF No. 5. Defendant brings the motion to
dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). Defendant begins by arguing
that Plaintiff lacks standing, because, as a resident of Cincinnati, Ohio, he is ineligible to be a
member of the credit union. Id. at PageID #: 185-89. As to the 12(b)(6) argument, Defendant
argues as follows: (1) Defendant’s website is not a place of public accommodation (id. at PageID
#: 189-94); (2) Plaintiff failed to make a request for auxiliary aids or services (id. at PageID #:
194-98); (3) Title III of the ADA does not require Defendant to create an accessible website (id.

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at PageID #: 198-200); and (4) Defendant offers a staffed phone line to those who cannot access
its website, so it does in fact offer a sufficient auxiliary aid and service (id. at PageID #: 200-01).
As to its standing argument, Defendant states that it is a community credit union existing
under 12 U.S.C. § 1759(b)(3). Id. at PageID #: 188. Section 1759(b)(3) limits members to
“[p]ersons or organizations within a well-defined local community, neighborhood, or rural
district.” Defendant contends that Plaintiff cannot be a member, because he lives more than 200
miles south of the credit union’s southernmost branch. ECF No. 5 at PageID #: 188. Defendant
also argues that Plaintiff has employed a “scattershot approach of suing credit unions throughout
the State” that “essentially forecloses an allegation he could be a member of DoverPhila
consistent with Rule 11 of the Federal Rules of Civil Procedure.”1 Id.
Plaintiff’s response as to membership is two-fold: (1) he is eligible for membership,
because he works and volunteers in Tuscarawas County and that he is the coordinator/director of
the Ohio NFB’s News Line, which services residents of Tuscarawas County; and (2) he is a
member of Kemba Credit Union, whose members may use Defendant’s services through a cooperative sharing network. ECF No. 16 at PageID#: 464-65. He also argues that the ADA
applies to individuals, so he need not be a patron of the credit union to have standing. Id. at
PageID#: 465-68. Next, Plaintiff asserts that he has alleged a likelihood of future harm. Id. at
PageID #: 468-69. He then contends that the number of lawsuits he has filed is irrelevant to the

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The Amici raise similar arguments in their amicus brief. See ECF No. 12 at
PageID #: 399-403.
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matter of standing. Id. at PageID #: 469-70. Plaintiff also argues that case law on physical
barriers is inapplicable to this case. Id. at PageID #: 471-72. Finally, Plaintiff concludes his
standing argument by arguing the Court should apply cases that ruled in his favor, while
attempting to distinguish cases that reach the opposite conclusion. Id. at PageID #: 472-74.
In Defendant’s reply, it argues that Plaintiff’s factual allegations are insufficient to show
standing and that his legal authority is also lacking. First, Defendant points out that Ohio NFB
News Line “is a service, not an employer, and the organization which offers it (NFB of Ohio),
does not have a single chapter or division in Tuscarawas County.” ECF No. 19 at PageID #: 669.
Defendant also argues that its co-op agreement only permits members of cooperating credit
unions to use Defendant’s physical locations, not its website. Id. at PageID #: 670. Defendant
asserts that Plaintiff fails to allege any plans to use Defendant’s banking services, that he ever
visited one of Defendant’s physical locations, or that he has any future intent to visit Defendant’s
website. Id. at PageID #: 371. Defendant then argues Plaintiff’s case law does not apply and any
claim that Plaintiff has suffered an injury to his dignitary interest fails. Id. at PageID #: 672-73.
Defendant also argues that even if Plaintiff is an ADA tester, he still must show standing in this
case. Id. at PageID #: 674-76.
II. Standard of Review
Federal Rule of Civil Procedure 12(b)(1) allows dismissal for “lack of jurisdiction over
the subject matter” of claims asserted in the complaint. Fed. R. Civ. P. 12(b)(1). A motion to
dismiss for lack of subject-matter jurisdiction may involve either facial attacks or factual attacks

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upon a court’s jurisdiction. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A facial
attack on the subject-matter jurisdiction alleged in the complaint questions merely the sufficiency
of the pleading.” Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir.
2007). When resolving a facial attack, the reviewing court assumes the allegations within the
complaint are true. Id. “Where, on the other hand, there is a factual attack on the subject-matter
jurisdiction alleged in the complaint, no presumptive truthfulness applies to the allegations.” Id.
When reviewing a factual attack, the court must weigh the conflicting evidence to determine
whether subject-matter jurisdiction exists. Howard v. Whitbeck, 382 F.3d 633, 636 (6th Cir.
2004). Plaintiffs bear the burden of establishing that jurisdiction exists. Madison Hughes v.
Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Lack of subject-matter jurisdiction is a
non-waivable, fatal defect. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir. 1990).
To survive a Fed. R. Civ. P.12(b)(6) motion to dismiss, a plaintiff’s complaint must
allege enough facts to “raise a right to relief above the speculative level.” Ass’n of Cleveland
Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Fed. R. Civ. P. 8(a)(2) requires only that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” However, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A complaint requires “further factual enhancement,” which “state[s] a claim to relief

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that is plausible on its face.” Id. at 557, 570. A claim has facial plausibility when there is
enough factual content present to allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When a claim lacks “plausibility in th[e] complaint,” that cause of action fails to state a claim
upon which relief can be granted. Twombly, U.S. 550 at 564.
III. Discussion
A. Standing
Plaintiff bears the burden of establishing standing. Lyshe v. Levy, 854 F.3d 855, 857 (6th
Cir. 2017) (citing Summer v. Earth Island Inst., 555 U.S. 488, 493 (2009)). To satisfy the
“irreducible constitutional minimum of standing,” a plaintiff must establish the following: (1) he
has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent
rather than conjectural or hypothetical; (2) that there is a causal connection between the injury
and the defendant’s alleged wrongdoing; and, (3) that the injury can likely be redressed. Id.
(quoting Lujan v. Def. of Wildlife, 504 U.S. 555, 561 (1992)). On a motion to dismiss, “the
standing inquiry must ... be done in light of the factual allegations of the pleadings.” Lujan, 504
U.S. at 561. The determination of whether a party sustained an injury “often turns on the nature
and source of the claim asserted.” Slorp v. Lerner, Sampson & Rothfuss, 587 F.App’x. 249, 253
(6th Cir. 2014). The Supreme Court held that, in addition to showing a particularized injury, a
plaintiff must show that the injury is concrete. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1548
(2016) (citing Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014)).

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To be concrete, an injury need not be tangible. Id. at 1549 (“Although tangible injuries
are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible
injuries can nevertheless be concrete.”) (collecting cases). Indeed, a plaintiff must have a
“personal stake in the outcome.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983)
(quotation omitted). Mere “[a]bstract injury is not enough.” Id. To have standing to seek an
injunction, a plaintiff must be “likely to suffer future injury.” Id. at 105.
In ADA cases seeking injunctive relief, a plaintiff who encounters a barrier at a public
accommodation must show “a plausible intention or desire to return to the place but for the
barriers to access.” Kramer v. Midamco, 656 F.Supp.2d 740, 747 (N.D.Ohio 2009) (Nugent, J.)
(citation omitted). A plaintiff acting as a ‘tester,’ does not preclude standing. Civil Rights
Education and Enforcement Center v. Hospitality Properties Trust, 867 F.3d 1093, 1101-02 (9th
Cir. 2017). In a case involving a physical barrier, the Northern District of Ohio applied four
factors in determining an intent to return: “(1) proximity of the place of public accommodation to
the plaintiff’s residence; (2) the plaintiff’s past patronage of defendant’s business; (3) the
definitiveness of the plaintiff’s plans to return; and (4) the plaintiff’s frequency of travel near the
accommodation in question.” Kramer, 656 F.Supp.2d at 747-48. The Kramer court concluded
that plaintiff lacked standing, in part, because the plaintiff failed to show a plausible intention to
return to the facility in an individual capacity upon removal of the purported barriers. Id. at 750.
Similarly, the Southern District of Ohio held that a married woman lacked standing to seek an

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injunction against a clinic for violation of Title III, because she failed to show an intent to resume
marital counseling at the clinic. Davis v. Flexman, 109 F.Supp.2d 776, 783-84 (S.D.Ohio 1999).
In a case involving accessability of a credit union’s webpage, the Eastern District of
Virginia held that plaintiff did not have standing, because he was ineligible to become a member.
Griffin v. Department of Labor Federal Credit Union, 293 F.Supp.3d 576 (E.D.Va. 2018).
Membership in the credit union in Griffin was only available to employees, retirees, immediate
family members, or spouses of a deceased member of one of the Department of Labor’s eligible
organizations. Id. at 578. Griffin did not fall within any of these categories, so he was ineligible
for membership. Id. Because he was not eligible for membership, he lacked an injury, and thus,
also lacked standing to seek injunctive relief. Id. at 578-79. The Griffin court also held that
Griffin’s failure to allege an intent to become a member
eligibility for membership

or even an intention to investigate

precluded his ability to bring suit. Id. at 580.

In a Southern District of Florida case, the court held that a blind man had standing to
bring a Title III claim, because he intended to patronize the grocery store once he was able to
access the store’s website. Gil v. Winn-Dixie Stores, Inc., 257 F.Supp.3d 1340, 1347-48
(S.D.Fla. 2017), appeal pending No. 17-13467 (11th Cir.). The Gil court concluded that WinnDixie’s website operated as a “gateway” to the physical stores. Id. at 1349. Therefore, WinnDixie’s online offerings were services, privileges, advantages, and accommodations of the store.
Id. For instance, the website provided digital versions of coupons and listed store hours and
locations. Id. Gil had frequented Winn-Dixie in the past, and he indicated he was “100%

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certain” that he would resume using Winn-Dixie stores once the website became accessible to
him. Id. at 1344.
In this case, Plaintiff’s claim fails for lack of standing.
First, he is ineligible to become a member of Dover-Phila. Facially, Plaintiff has not
alleged that he is within Defendant’s field of membership.2 Dover-Phila membership is limited
to those who live, work, worship, or attend school in Tuscarawas County. Plaintiff has not
alleged that he meets any of these criteria.
Plaintiff offers to amend his complaint to say he is eligible to be a member of DoverPhila, but the amendment would not be well-taken. Plaintiff lives over 200 miles away from the
closest Dover-Phila branch. ECF No. 5 at PageID #: 188. He lives in Cincinnati, which sits in
Hamilton County. Plaintiff claims that he is the coordinator/director of NFBNews Line, and he
claims that this service is based in Tuscarawas County. ECF No. 16 at PageID #: 464. In
response, Defendant argues that NFB News Line is not an employer and the employer that offers
it, the National Federation of the Blind Ohio, does not have a chapter or division in Ohio. ECF
No. 19 at PageID #: 669. Based on a review of the NFB Ohio’s website, Plaintiff’s proposed
amendment is not well-taken. Plaintiff also claims that he can avail himself of Defendant’s
facilities through his credit unions’s co-op agreement with Defendant. ECF No. 16 at PageID #:

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Defendants makes both facial and factual attacks. The Court treats Defendant’s
standing argument as a facial attack. The Court only addresses Defendant’s arguments
covering facts outside the record in addressing Plaintiff’s request for leave to amend the
complaint to add in facts to establish standing.
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463-64. This argument is also not well-taken, because the co-op only permits members of other
credit unions to use physical location of co-operating credit unions, not websites.
Second, Plaintiff has failed to allege an intent to use Defendant’s services. Plaintiff has
shown no intent to become a member of Defendant. Plaintiff relies on Menkowitz v. Pottstown
Memorial Medical Center, 154 F.3d 113 (3d Cir. 1998), for the proposition that he need not be a
patron of Defendant to have standing. It is true that Plaintiff does not have to be a patron, but he
has to evince an intent to make use of Defendant’s services. In Menkowitz, the plaintiff was not a
customer, but he was a surgeon with staff privileges at the medical center. Id. at 115-16. Thus,
he was actually making use of the hospital. Conversely, Plaintiff has not suggested that he even
intends to use the banking services Dover-Phila offers. This is in contrast to the plaintiff in Gil
who had made repeated use of Winn-Dixie grocery stores in the past and intended to continue to
use them once Winn-Dixie’s website became accessible to him. This case is more analogous to
Griffin, as Plaintiff, like Griffin, has not alleged that he plans to become a member of DoverPhila, let alone that he has a plausible intention to investigate whether he could become a
member.
Plaintiff also relies on Gniewkoski v. Lettuce Entertain You Enterprises, Inc., 251 F.
Supp.3d 908 (W.D.Pa. 2017), but that reliance is misplaced. Gniewkoski involved a federallychartered bank, which “offer[ed] and advertise[d] a full range of financial solutions and banking
expertise to the general public through its website.” Id. at 911-12 (emphasis added). Defendant

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does not offer its services to the general public. Instead, it only offers its services to a limited
field.
Plaintiff has failed to show standing, and therefore, he cannot maintain this action.
B. Rule 12(b)(6) arguments
Because Plaintiff lacks standing, the Court declines to address the remainder of
Defendant’s arguments.
IV. Conclusion
For the foregoing reasons, the Court grants Defendant’s motion to dismiss. Plaintiff’s
complaint is dismissed for lack of standing.

IT IS SO ORDERED.

June 25, 2018
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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