SUCHENKO, ET. AL. v. ECCO USA, INC., ET. AL.

Filing 129

ORDER denying[] Motion to Dismiss for Failure to State a Claim. Signed by Judge Arthur J. Schwab on 8/16/2018. (lmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ANTOINETTE SUCHENKO,
Plaintiff,

18cv0562
Lead Case

v.
ECCO USA, INC.,
Defendant.

ANTOINETTE SUCHENKO and
LISA GATHERS, et. al.
18cv0962
Consolidated Case
Plaintiffs,
v.
PURPLE INNOVATION, LLC. doing
business as PURPLE
Defendant.

MEMORANDUM ORDER
Before the Court is a Motion to Dismiss and Brief in Support filed by Defendant Purple
Innovation, LLC d/b/a Purple. Doc. no. 122 and doc. no. 123. The Motion to Dismiss primarily
argues that the “First-Filed Rule” prevents the instant case from going forward. Plaintiffs filed a
Brief in Opposition to this Motion to Dismiss (doc. no. 128), making this matter ripe for
disposition. Defendant’s Motion will be denied for the reasons that follow.
I. Standard of Review
In considering a Rule 12(b)(6) motion, Federal Courts require notice pleading, as
opposed to the heightened standard of fact pleading. Fed. R. Civ. P. 8(a)(2) requires only “‘a

short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds on which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Building upon the landmark United States Supreme Court decisions in Twombly and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit
explained that a District Court must undertake the following three steps to determine the
sufficiency of a complaint:
First, the court must take note of the elements a plaintiff must plead to state a
claim. Second, the court should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of truth. Finally, where there
are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).
The third step requires this Court to consider the specific nature of the claims presented
and to determine whether the facts pled to substantiate the claims are sufficient to show a
“plausible claim for relief.” Covington v. Int’l Ass’n of Approved Basketball Officials, 710 F.3d
114, 118 (3d Cir. 2013). “While legal conclusions can provide the framework of a Complaint,
they must be supported by factual allegations.” Iqbal, 556 U.S. at 664.
This Court may not dismiss a Complaint merely because it appears unlikely or
improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits.
Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a
reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556.
Generally speaking, a Complaint that provides adequate facts to establish “how, when, and

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where” will survive a Motion to Dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 212 (3d
Cir. 2009).
In short, a Motion to Dismiss should not be granted if a party alleges facts, which could,
if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.
II. Discussion
A. First-Filed Rule
Defendant makes several arguments in support of dismissal. Each will be addressed
below, seriatim.
The first argument is the “First-Filed Rule.” This Court has previously considered this
argument in other similar cases. In Sipe v. American Casino & Entertainment Properties, LLC,
this Court was presented with the same “first-filed” argument and in deciding the issue, this
Court reviewed a United States Court of Appeals for the Third Circuit case, E.E.O.C. v.
University of Pennsylvania, 850 F.2d 969 (3d Cir. 1988).
In the E.E.O.C. case, the Court of Appeals summarized the “first-filed” law as follows:
The first-filed rule encourages sound judicial administration and promotes
comity among federal courts of equal rank. It gives a court “the power” to
enjoin the subsequent prosecution of proceedings involving the same
parties and the same issues already before another district court. See
Triangle Conduit & Cable Co. v. National Elec. Products Corp., 125 F.2d
1008, 1009 (3d Cir.), cert. denied, 316 U.S. 676, 62 S.Ct. 1046, 86 L.Ed.
1750 (1942). That authority, however, is not a mandate directing wooden
application of the rule without regard to rare or extraordinary
circumstances, inequitable conduct, bad faith, or forum shopping. District
courts have always had discretion to retain jurisdiction given appropriate
circumstances justifying departure from the first-filed rule. See Crosley
Corp. v. Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 475–76 (3d Cir.),
cert. denied, 317 U.S. 681, 63 S.Ct. 202, 87 L.Ed. 546 (1942); accord
Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th
Cir.1982); Mattel, Inc. v. Louis Marx & Co., 353 F.2d 421, 423–24 & n. 4
(2d Cir.1965); cf. Colorado River Water Conserv. Dist. v. United States,
424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (no
precise rule governs relations between federal district courts possessing
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jurisdiction, but general principle is to avoid duplicative litigation); Kline
v. Burke Constr. Co., 260 U.S. 226, 229, 43 S.Ct. 79, 81, 67 L.Ed. 226
(1922) (forbearance exercised by coordinate federal courts is
discretionary) (quoting Covell v. Heyman, 111 U.S. 176, 182, 4 S.Ct. 355,
358, 28 L.Ed. 390 (1884)).
850 F.2d at 971-72 (emphasis added).
This Court may disregard the First-Filed Rule in this case given that: (1) rare or
extraordinary circumstances are present; and (2) it appears that Attorney Hurley may have, once
again, acted in bad faith or engaged in forum shopping given his decision to file a lawsuit in
Utah.
According to the Complaint filed in this case, and as detailed by Plaintiffs in their Brief
in Opposition to this Motion to Dismiss, Defendant received a pre-litigation letter from
Plaintiffs’ attorney dated May 18, 2018. See doc. no. 1, at ¶ 44. Per Plaintiffs, the pre-litigation
letter explained that Defendant’s website contained failures which prevented Plaintiffs and other
visually impaired consumers from accessing Defendant’s online content. Thereafter, Defendant
retained Attorney Hurley (who also represented a defendant in Sipe v. American Casino &
Entertainment Properties, LLC). On July 9, 2018, Attorney Hurley filed a lawsuit against
Plaintiffs in Utah in an effort to invoke the First-Filed Rule to thwart Plaintiffs from asserting
their claims in the instant case.
Importantly, given Attorney Hurley’s familiarity with this Court’s position in cases such
as the instant matter, both with respect to the First-Filed Rule and the Court’s overall position on
Motions to Dismiss these sort of matters, the Court finds that there is ample evidence of bad
faith. As such the court declines to impose the First-Filed Rule, and accordingly will deny the
Motion to Dismiss.1

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This Court notes that Plaintiffs have cited cases from numerous courts throughout the United States that
have admonished Attorney Hurley for his frivolous filings. To date, this Court has not sanctioned

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B. Place of Public Accommodation
Next, Defendant contends that because a website is not a physical place it does not meet
the definition of “public place of accommodation” as defined by case law and the Americans
with Disabilities Act. This Court has rejected this precise argument before in nearly identical
cases where visually impaired Plaintiffs have sued companies with websites that were made
available to the public. See, Gniewkowski v. Lettuce Entertain You Enterprises, Inc., 251 F.
Supp 908 (W.D. Pa. 2017); and Suchenko v. ECCO USA, Inc., 2018 WL 3660117 (W.D. Pa.
Aug. 2, 2018). Simply put, Defendant in the instant case, like other corporate defendants in
Gniewkowski and Suchenko, purportedly owns, operates, and/or controls the property upon
which the alleged discrimination has taken place – i.e., its website. Therefore, Plaintiff in this
case has a nexus to the place of public accommodation and thus may claim the protections of
Title III. As a result, Defendant’s Motion to Dismiss is denied.
C. Due Process
Defendant further argues that because its website cannot be considered a public place of
accommodation under the ADA – a statement with which this Court disagrees, as noted
immediately above – any attempt by this Court to allow this lawsuit to proceed would violate
Defendant’s Constitutional due process rights. Given that the very purpose of the ADA is to
bring individuals with disabilities in to the economic and social mainstream of American life,
and considering that Defendant’s commerce is conducted online, the only way for individuals
with disabilities to access Defendant’s products is through a computer. Therefore, this Court
finds that Defendant had notice that if its for-profit products – which are sold through the internet

Attorney Hurley for the actions he has taken in bad faith. However, in light of the fact that this Court has
now been made aware of these unscrupulous practices by Mr. Hurley, the Court would consider imposing
sanctions against Attorney Hurley should he continue to act in this manner before this Court and should a
request be made in future cases where he does so.

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– could only reach individuals without a vision impairment or other disability, Defendant would
be violating the ADA. Thus, Defendant’s due process argument in favor of dismissal also fails.
D. Primary Jurisdiction
Defendant contends that the doctrine of primary jurisdiction also applies to the instant
case, precluding this Court from hearing this matter. Per Defendant, Congress “explicitly
entrusted the Attorney General with the responsibility of issuing regulations in order to carry out
Title III of the ADA[.]” Doc. no. 123, p. 16. As explained by the Court of Appeals for the Third
Circuit in MCI Communications Corp. v. AT&T. Co., 496 F.2d 214 (3d Cir. 1974):
The doctrine of primary jurisdiction has been developed by courts in order
to avoid conflict between the courts and an administrative agency arising
from either the court's lack of expertise with the subject matter of the
agency’s regulation or from contradictory rulings by the agency and the
court. Under the doctrine, a court should refer a matter to an
administrative agency for resolution, even if the matter is otherwise
properly before the court, if it appears that the matter involves technical or
policy considerations which are beyond the court’s ordinary competence
and within the agency’s particular field of expertise.
Id., at 220. However, Third Circuit law counsels against applying the doctrine of primary
jurisdiction in cases where a Court is equally equipped and well-suited to hear the case. See MCI
Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1104 (3d Cir. 1995). Given this
law, this Court finds that there is an insufficient basis upon which to apply the doctrine of
primary jurisdiction and therefore will deny Defendant’s Motion to Dismiss on this basis as well.
E. Plaintiff’s Retaliation Claim
Finally, Defendant argued that its attempt to file a lawsuit in Utah after receiving the prelitigation letter from Plaintiffs could not be considered retaliation or coercion in contravention of
the ADA’s prohibition against same. The Court finds that the Complaint, as stated and with

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allegations accepted as true solely for the purposes of the deciding this Motion to Dismiss have
established a prima facie for a claim of retaliation/coercion under the ADA.
III. Conclusion
Based on the foregoing law and authority, the Court finds that there is no basis upon
which to grant Defendant’s Motion to Dismiss, and accordingly, will deny same.

ORDER OF COURT
AND NOW, this 16th day of August, 2018, the Court DENIES Defendant’s Motion to
Dismiss Plaintiffs’ Complaint. Doc. no. 122. Defendant must file an Answer to the Complaint
on or before August 27, 2018.

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

cc:

All counsel of record

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