ACCESS NOW, INC. v. ALLEN EDMONDS CORPORATION

Filing 66

ORDER denying 55 Motion to Reassign Case. Signed by Judge Arthur J. Schwab on 9/13/2017. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ACCESS NOW, INC. on behalf of its
members; R. DAVID NEW; and LISA
FRAZIER,

17cv0959
LEAD CASE

Plaintiff,
v.
ALLEN EDMONDS CORPORATION,
Defendant.

LISA FRAZIER,
Plaintiff,

17cv1002
MEMBER CASE

v.
VAIL RESORTS, INC.,
Defendant.
________________________________________
MEMORANDUM ORDER
Presently before the Court is Defendant Vail Resorts’ Motion for Reassignment. ECF 55.
Plaintiff filed a Brief in Opposition (ECF 60) making this issue ripe for disposition.
I. Background
Plaintiff is a legally blind person who has to use a “screen reader program” when
attempting to obtain information from websites. According to the Complaint, Defendant is a
premier mountain resort company and a leader in luxury, destination based travel. Defendant
maintains various websites and through these websites, Defendant provides information about its
hotels and hotel services as well as discounts, deals, and vacation packages.

The Complaint indicates that the websites are “largely incompatible” with the screen
reader programs Plaintiff and other visually impaired individuals use. Because of the
incompatibility, Plaintiff claims that Vail Resorts “deprives blind and visually-impaired
individuals the benefits of its online goods, content, and services – all benefits it affords
nondisabled individuals – thereby increasing the sense of isolation and stigma among these
Americans that Title III was meant to redress.” ECF 1.
Defendant’s Motion for Reassignment argues that Plaintiff wrongfully designated this
specific case as “related to” Jahoda v. Foot Locker, Inc., 15-cv-1000-AJS (“Foot Locker”). The
Defendant notes that Plaintiffs’ counsel has filed over eighty lawsuits in this United States
District Court within the past two years on behalf of visually impaired or blind individuals
asserting that various defendants have websites which violate Title III of the Americans with
Disabilities Act. All of the lawsuits have been designated as related to Foot Locker and were,
therefore, assigned the undersigned Judge in accordance with LCivR 40E. Defendant challenges
the “related” designation which was asserted by Plaintiff on the civil cover sheet when the
Complaint in the instant matter was first filed.
II. Analysis
Although a plaintiff in a case has the right to designate a case as related to another case
by so indicating on the civil cover sheet, this Court has discretion to reject an assignment if the
Court determines that a case was not related to a prior filed case, or if the assignment would not
“promote the convenience of the parties or witnesses or the just and efficient conduct of the
action.” LCivR 40 D-E.

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The relevant Local Rule of Civil Procedure for the United States District Court for the
Western District of Pennsylvania which governs the assignment of newly filed cases reads, in
pertinent part, as follows:
C. Assignment of Civil Actions. Each civil action shall be
assigned to a Judge who shall have charge of the case. The assignment
shall be made by the Clerk of Court from a non-sequential list of all
Judges arranged in each of the various categories. Sequences of Judges’
names within each category shall be kept secret and no person shall
directly or indirectly ascertain or divulge or attempt to ascertain or divulge
the name of the Judge to whom any case may be assigned before the
assignment is made by the Clerk of Court.
D. Related Actions. At the time of filing any civil or criminal
action or entry of appearance or filing of the pleading or motion of any
nature by defense counsel, as the case may be, counsel shall indicate on an
appropriate form whether the action is related to any other pending or
previously terminated actions in this Court. Relatedness shall be
determined as follows:
*
*
*
2. civil actions are deemed related when an action filed
relates to property included in another action, or involves
the same issue of fact, or it grows out of the same
transaction as another action, or involves the validity or
infringement of a patent involved in another action;
*

*

*

E. Assignment of Related Actions.
1. If the fact of relatedness is indicated on the appropriate
form at time of filing, the Clerk of Court shall assign the
case to the same Judge to whom the lower numbered
related case is assigned who may reject the assignment if
the Judge determines that the cases are not related or the
assignment does not otherwise promote the convenience of
the parties or witnesses or the just and efficient conduct of
the action.
LCvR 40.
In applying this Rule and its subparts, District Judge Hornak for the Western District of
Pennsylvania in Cerini v. Warrior Energy, noted that although cases in the United States District
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Court for the Western District of Pennsylvania are randomly assigned, “[o]ur Court, like many
others, does make an exception in those cases where good case management takes center stage in
a way that would not prejudice the substantial rights of any party. That occurs in the case of
‘related’ cases.” Cerini, 2014 WL 7015992, *1 (Dec. 11, 2014), citing, Coulter v. Studeny, No.
12–0338, 2012 WL 2829948, *2 (W.D.Pa. July 10, 2012). In Cerini, Judge Hornak denied a
Motion for Reassignment primarily because the case had proceeded for five months, and thus,
the Court could not grant Defendant’s Motion for Reassignment because to do so would create
the “impermissible appearance of authorizing ‘Judge shopping[,]’ ” no matter what Defendant’s
actual motivation was for filing its Motion so late. Id. at *3.
In the instant matter, Vail Resorts cites and relies upon another decision rendered by
Judge Hornak, albeit one in which he found that the cases were unrelated, and thus, he exercised
his discretion to have the matter returned to the Clerk of Court for random reassignment. See
Badger v. Advance Stores Co., Inc., 16-cv-01872-MPK at ECF 26. In Advance Stores, Judge
Hornak was assigned the matter because the plaintiffs’ attorneys – who are the same lawyers
who represent the Plaintiffs in the instant case – marked the Advance Stores case as related to
Heinzl v. Cracker Barrel Old Country Stores, Inc., 14 cv-01455-RCM. In both Advance Stores
and Cracker Barrel, the plaintiffs were mobility challenged individuals who relied upon
wheelchairs to gain access to various business establishments. In both cases, the plaintiffs
claimed that barriers in the parking lots of the defendants’ businesses prevented them from
accessing the businesses. The plaintiffs in both cases also claimed that the defendants’ corporate
policies and practices allowed these barriers to re-emerge after the barriers were removed.
Judge Hornak, held that Advance Stores, “while similar to the Cracker Barrel case in
terms of the legal issues involved,” was not within Rule 40(D)’s definition of “related” in the

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first place, thereby requiring reassignment. Judge Hornak did note that Magistrate Judge
Mitchell’s Report and Recommendation which recommended that the matter be viewed as
related, inadvertently conflated the first step of the process (i.e., determining if the matter before
the court meets the definition of “related”), with second step of the process (i.e., what a Judge is
to do when a case has incorrectly been marked “related,” or a when a related case is not so
marked).
This Court begins its own analysis of the “relatedness” matter by first considering the
purpose of Rule 40. Local Rule 40 was promulgated in compliance with Federal Rule of Civil
Procedure 40 which indicates that “[e]ach court must provide by rule for scheduling of trials.”
Federal Rule of Civil Procedure 40 also requires District Courts to prioritize their trials. As a
result, the United States Court for the Western District of Pennsylvania enacted LCivR 40 which
(in part) allows attorneys to designate cases as “related” to one another to aid the Court in its
administration of the scheduling of trials. Simply put, Fed.R.Civ.P. 40 is an administrative Rule
to which all District Courts must adhere. Thus, the very purpose behind LCivR 40 is to assist the
Western District Court in the administration of the scheduling of trials.
Importantly, what LCivR 40 does not do, is allow counsel for the parties to “judge shop.”
Magistrate Judge Mitchell, who stated in his Report and Recommendation in Advance Stores:
. . . Local Rule 40 is a matter of Court administration. It does not entitle a
party to have a case heard before a particular judge, nor does it give a party
a right to have a judge reject an assignment. The purpose of the rule is not
to encourage “judge shopping,” but to facilitate the just and efficient
management of cases.
See, 2:16-cv-01872-MPK, ECF 11, p. 4. Judge Hornak also commented that Rule 40 precludes
“judge shopping” when he stated in Cerini:
. . . [T]he parties don’t get to pick their Judge. To the extent the Plaintiffs
did that by checking the “related” box on the Civil Cover Sheet, absent
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some showing at this point (five (5) months into the case) that their doing
so was obviously contrary to the Local Rule or that their doing so created
a real and material prejudice to the substantial rights of the Defendants,
the time to do something about that has passed. To grant Defendants’
Motion now, no matter their actual motivation for making it, would in the
Court's judgment create an impermissible appearance of authorizing
“Judge shopping”.
2014 WL 7015992 at *3. Accordingly, at least two of this Court’s well-respected colleagues in
the Western District agree that LCivR 40 prohibits “judge shopping.” This Court concurs.
In addition, it is indisputable that LCivR 40 places the burden on the attorneys for the
parties to carefully consider the cases in which their clients find themselves embroiled; and then,
based on their learned experience as officers of this Court, indicate on a form whether the matter
is genuinely related or unrelated to a previously filed lawsuit. At its core, LCivR 40 requires
attorneys to use good faith to assert when a matter is related, or unrelated, to another. It is only
when an opposing attorney questions the “related” designation (or lack of designation), or when
the Court itself finds the designation (or lack of designation) to be erroneous, that the Court must
“consider the balance” that Local Rule 40 provides.
Although Magistrate Judge Mitchell and District Judge Hornak reached opposite
conclusions as to whether Advance Stores and Cracker Barrel were related cases, under either
Judge’s method of analysis, the result in the instant case is that this matter is related to Foot
Locker. Here, there is parity of not only legal issues, but also factual issues. Thus, this matter
meets the definition of “related” under LCivR 40 and by deeming this case “related,” the just and
efficient conduct of this action is promoted.
Further, this Court has often relied upon Rule 1 of Federal Rules of Civil Procedure in
situations where judicial economy comes into play. Because Fed.R.Civ.P 40 is an administrative

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Rule which requires every District Court in the United States to prioritize cases that they will try,
Rule 1 becomes especially instructive. Rule 1 of the Federal Rules of Civil Procedure states:
These rules govern the procedure in all civil actions and proceedings in the
United States district courts, except as stated in Rule 81. They should be
construed, administered, and employed by the court and the parties to secure
the just, speedy, and inexpensive determination of every action and
proceeding.
F.R.Civ.P. 1.
Rule 1 was amended in 2015, and the Comment regarding this 2015 amendment to
F.R.Civ.P. 1 indicates:
Rule 1 is amended to emphasize that just as the court should construe and
administer these rules to secure the just, speedy, and inexpensive
determination of every action, so the parties share the responsibility to employ
the rules in the same way. Most lawyers and parties cooperate to achieve
these ends. But discussions of ways to improve the administration of civil
justice regularly include pleas to discourage over-use, misuse, and abuse of
procedural tools that increase cost and result in delay. Effective advocacy is
consistent with – and indeed depends upon – cooperative and proportional use
of procedure.
Next, perhaps unbeknownst to Vail Resort’s counsel, this Court has considered – in
accordance with LCivR 40 – whether this case (or any of the other nearly 80 cases filed prior to
instant matter but after Foot Locker) are actually “related” to the Foot Locker case.
Prior to filing the lead case in the instant matter (Access Now, Inc. v. Allen Edmonds
Corp., case no. 17cv959), Plaintiffs’ counsel filed Foot Locker at case no. 15cv1000. The Foot
Locker case was randomly assigned to this Court in 2015, and this Court then consolidated
fourteen other cases with the Foot Locker case.
Like the instant matter, Plaintiffs in Foot Locker and its fourteen consolidated cases
sought relief under the Americans with Disabilities Act (“ADA”), asserting that the corporate
Defendants’ websites therein were not accessible to blind and visually impaired consumers. This

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underlying issue in the Foot Locker cases (i.e., the inaccessibility of certain websites to blind and
visually impaired individuals) is the same as the issue presented in the instant lead matter
(17cv959 or “Access Now v. Allen Edmonds”) and all of the matters consolidated under Allen
Edmonds at 17cv959.
In addition, there are no discernable factual differences among any of these cases.
Plaintiffs’ software is unable to “read” the Defendants’ websites. Plaintiffs inability to read
Defendants’ websites is allegedly due Defendants’ websites incompatibility with Plaintiffs’
screen reader programs. The inability to read the website data places Plaintiffs at a disadvantage
to obtain information, goods, and services, which in turn, allegedly violates the ADA. Defendant
here control their websites Unlike parking lots in the Advance Stores,
All fifteen Foot Locker cases were resolved in about nine months from the date of the
first filed case to the date of the closing of the last case. In each of those cases, Plaintiffs’
counsel and Defendants’ counsels therein worked professionally together, understanding that it
was in the Defendant companies’ interest to provide greater access to their information, products,
and/or services to the blind and visually impaired. In addition, Plaintiffs’ counsel did not overlitigate these cases in order to have the potential of greater fees, but instead, agreed to mediate
these cases early. With the cooperation of the Parties and their counsel, a well-respected
mediator of substantial experience, Arthur J. Stroyd, Esquire, was appointed to mediate all
fifteen Foot Locker cases. Thereafter, all fifteen cases settled – in a just, speedy, and
inexpensive manner.
Since the filing of the Foot Locker case, as noted by Defendant here, numerous other
lawsuits were filed by counsel for Plaintiffs against numerous other Defendants who refused to

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update their websites so that blind and/or visually impaired individuals can have equal access to
information, goods, and /or services provided through Defendants’ corporate websites.
This Court intends to manage the Allen Edmonds consolidated cases – which includes the
instant matter – in precisely the same manner it managed the Foot Locker cases. In so doing, the
Court is hopeful that the Allen Edmonds cases will achieve similar results as the Foot Locker
cases – meaning the just, speedy, and cost-efficient outcomes – all of which comply with
F.R.Civ.P. 1.
III. Conclusion
For all of the reasons set forth above, this Court will deny the Defendant’s Motion for
Reassignment. An appropriate Order is attached below.

ORDER OF COURT
AND NOW this 13th day of September, 2017, Defendant Vail Resort Inc.’s Motion for
Reassignment is DENIED. Defendant is ORDERED to file an Answer to the Complaint on or
before September 20, 2017, and Vail Resort’s Chief Trial Counsel is instructed to review the
Court’s Case Management Order dated August 8, 2017 (ECF 4) so as to be fully prepared to
participate in person at the Case Management Conference on November 1, 2017 at 9:00 a.m.

s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

ECF registered counsel of record

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