Ramos, et al v. Uber Technologies, Inc., et al
ORDER no later than January 26, 2015, Plaintiffs are directed to either (1) file affidavits demonstrating that they had actual notice at the time they filed the Original Complaint and that, but for that notice, they would have used Uber and Lyft or (2) voluntarily dismiss the lawsuit without prejudice to refiling pursuant to Rule 41. Signed by Judge Xavier Rodriguez. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DAN J. RAMOS, LAURA POSADAS,
and TINA WILLIAMS
UBER TECHNOLOGIES, INC. and
Civil Action No. SA-14-CA-502-XR
On this date, the Court considered the Motion to Dismiss Plaintiff’s Complaint (docket no.
6) filed by Uber Technologies, Inc. and the Corrected Motion to Dismiss Complaint (docket no. 10)
filed by Lyft Inc. Defendants challenge whether Plaintiffs had standing to file their claims under
Title III of the Americans with Disabilities Act at the time of filing the Original Complaint and
whether their complaint states a claim for relief.
According to the Complaint, Plaintiffs Posadas, Ramos, and Williams are mobility-impaired
individuals who use wheelchairs and require wheelchair accessible vehicles for their transportation
needs or other accommodating services such as assistance with storing their wheelchairs. Docket
no. 1 at ¶¶ 2, 7-9, 16. Plaintiffs allege that Uber and Lyft operate “vehicles for hire” in San Antonio
as defined under CSACO Section 330003. Id. ¶ 12, 13. Plaintiffs allege that Uber and Lyft “both
engage in a demand responsive system as defined by 42 U.S.C. § 12181.1 Id. at ¶ 14. Plaintiffs
allege that Uber and Lyft “have entered the vehicle-for-hire market in both Houston and San
Antonio. Uber and Lyft customers use a smartphone app to locate, schedule, and pay for their travel.
The term “demand responsive system” means any system of providing transportation of
individuals by a vehicle, other than a system which is a fixed route system. 42 U.S.C. § 12181(3).
Consumers enter into contracts and business relationships whereby Uber and Lyft transport the
consumer(s) to their desired location and the consumer(s) agree to pay for the services with a credit
car via their smartphone.” Id. ¶ 15.
Plaintiffs filed this lawsuit alleging that Defendants Uber and Lyft “do not provide vehiclesfor-hire services to mobility impaired consumers such as Plaintiffs who require wheelchair accessible
transportation vehicles or other accommodating service.” Id. ¶ 2. Plaintiffs further allege that Uber
and Lyft “allow their vehicles-for-hire to deny service to the disabled” and “provide no training or
guidance to the vehicles-for-hire that use their service concerning lawfully meeting the needs of
disabled customers.” Id. Plaintiff assert that they bring suit “because Defendants Uber and Lyft
have failed to offer services required by the ADA to mobility impaired individuals such as Plaintiffs
Posadas, Ramos and Williams.” Id. ¶ 3. The Complaint alleges that Uber and Lyft do “not provide
any manner for securing a wheelchair accessible vehicle or providing services at all for customers
such as Plaintiffs Posadas, Ramos, and Williams.” Id. at ¶¶ 17-18. The Complaint asserts a claim
for “Discriminat[ion] Against Mobility Impaired Citizens” in violation of 42 U.S.C. § 12184(a)2 and
seeks equitable relief pursuant to 42 U.S.C. § 12188.
Defendants Lyft and Uber both filed motions to dismiss. Both Defendants move to dismiss
for lack of jurisdiction under Rule 12(b)(1), arguing that Plaintiffs lacked standing at the time the
Complaint was filed. Defendants also both move for failure to state a claim under Rule 12(b)(6).
This Order considers only the 12(b)(1) portion of the motions.
II. Standard of Review
The Court must dismiss a cause for lack of subject matter jurisdiction “when the court lacks
the statutory or constitutional power to adjudicate the case.” See Home Builders Ass'n of Miss., Inc.
v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In deciding a motion to dismiss pursuant
Section 12184(a) provides, “No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of specified public transportation services provided by a
private entity that is primarily engaged in the business of transporting people and whose operations
affect commerce.” 42 U.S.C. § 12184(a). “Specified public transportation” means “transportation
by bus, rail, or any other conveyance (other than by aircraft) that provides the general public or
special service (including charter service) on a regular and continuing basis.” 42 U.S.C. §
to Rule 12(b)(1), the Court may consider: (1) the complaint alone; (2) the complaint supplemented
by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts,
plus the Court’s resolution of disputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir.
“[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992). These elements are “(1) an ‘injury in fact’ that is
(a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury
and the conduct complained of; and (3) the likelihood that a favorable decision will redress the
injury.” Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan, 504 U.S. at
560-61). Particularized means “that the injury must affect the plaintiff in a personal and individual
way.” Lujan, 504 U.S. at 560 n.1. The party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S. at 561. Since they are not mere pleading requirements
but rather an indispensable part of the plaintiff’s case, each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation. Id. At the pleading stage,
general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a
motion to dismiss we “presum[e] that general allegations embrace those specific facts that are
necessary to support the claim.” Lujan, 504 U.S. at 561; Public Citizen, Inc. v. Bomer, 274 F.3d 212,
218 (5th Cir. 2001).
This Court has previously considered standing to assert Title III claims in its Orders in
Betancourt v. Federated Department Stores, 732 F. Supp. 2d 693 (W.D. Tex. 2010) and Betancourt
v. Ingram Park Mall, L.P., 735 F. Supp. 2d 587 (W.D. Tex. 2010). The Betancourt cases dealt with
public accommodations.3 As this Court noted, under the terms of the ADA, injunctive relief is
available “to any person who is being subjected to discrimination on the basis of disability in
violation of [Title III].” 42 U.S.C. § 12188(a)(1). Although “any person who is being subjected to
The parties dispute whether Plaintiffs must establish that Defendants are public
accommodations and whether Defendants are in fact public accommodations. The Court need not
decide that issue at this time, however.
discrimination based on disability in violation of” Title III has a cause of action, whether a plaintiff
has a cause of action is a distinct issue from whether she has standing under Article III. Betancourt
v. Federated, 732 F. Supp. 2d at 701-02 (citing Davis v. Passman, 442 U.S. 228, 239 n.18 (1979)
(noting the difference between having a cause of action and standing)). Thus, because a federal
plaintiff must demonstrate standing for each type of relief sought, and the relief available to a Title
III ADA plaintiff is injunctive relief, a plaintiff must satisfy the Article III standing requirements for
injunctive relief. Further,“whether a person has Article III standing to sue under [a particular statute]
depends in great measure on the particular rights conferred by th[at] statute[ ].” Betancourt, 732 F.
Supp. 2d at 707. It follows that whether a plaintiff has suffered an injury in fact sufficient to confer
standing under Title III is determined largely by the rights conferred by the ADA. Id.
Uber makes various arguments in support of its 12(b)(1) motion. Most of these arguments
ultimately go to the merits of Plaintiffs’ claims. Uber argues that (1) “[b]ecause Uber is not violating
Title III, Plaintiffs cannot be deterred from participating in Uber’s service” and have suffered no
injury; (2) Uber is not required to provide accessible vehicles or accommodations; (3) Plaintiffs
failed to request or identify a reasonable accommodation; (4) Plaintiffs fail “to allege any facts to
show a causal relationship between Uber’s App and any alleged discriminatory acts”; (5) “[b]ecause
Uber is not required to provide training to its App-users, Plaintiffs’ alleged injury cannot be ‘fairly
traceable’ to Uber’s conduct”; (6) a favorable ruling from this Court will not redress Plaintiffs’
alleged injury because Uber already complies with Title III’s non-discrimination mandates that apply
to taxi services; and (7) Plaintiffs must prove that Defendants are places of public accommodation
and Defendants are not are places of public accommodation. The Fifth Circuit has acknowledged
that “whether the ADA applies to convey federal jurisdiction is intertwined with the merits,” such
that the court finds jurisdiction and deals with the challenges as an attack on the merits. Mann v. La.
High School Athletic Ass’n, 535 F. App’x 405, 408 (5th Cir. 2013). Under such circumstances, a
12(b)(1) dismissal is improper. And consideration of facts outside the complaint is improper in
resolving a 12(b)(6) motion. Therefore, Uber’s motion is denied in part insofar as it relies on these
However, both Lyft and Uber challenge standing based on the fact that at the time of filing
suit, Plaintiffs had not yet actually tried to use their apps to obtain a ride and had not actually been
denied service from Lyft or Uber. Lyft argues that Plaintiffs lack standing because they “do not
allege that they have ever used the Lyft platform, much less that they have been denied service by
Lyft or suffered any other form of discrimination by Lyft on the basis of a disability.” Lyft further
asserts that “Plaintiffs fail to plead any facts to suggest they have any personal knowledge regarding
Lyft’s ADA compliance whatsoever.” Uber contends that Plaintiffs’ allegations are speculative
because they do not allege that they ever used the app, were ever denied service or know of others
who were denied service, or that a driver ever refused to stow mobility equipment.4
Whether an ADA plaintiff must have suffered such past denial of services to have standing
to assert a claim and to obtain injunctive relief is not entirely settled in the case law. This Court (in
the Betancourt cases) and other courts have recognized that the deterrent effect of architectural
barriers or other Title III violations and the denial of opportunity inflict injury sufficient to confer
standing. The denial of an opportunity to benefit from services, whether caused by direct interaction
with barriers or discriminatory actions or policies or by their resulting deterrent effect and loss of
opportunity, is a sufficient injury for standing purposes. Accordingly, the fact that Plaintiffs in this
case had not tried to use Uber or Lyft before filing suit is not alone sufficient to find a lack of
This holding is not only consistent with the plain language of the ADA but also Supreme
Court precedent on standing. In Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc.,
528 U.S. 167 (2000), the Supreme Court did not require the plaintiffs to swim in a polluted river to
have standing. Rather, it was sufficient that the plaintiff alleged that he lived near defendant’s
facility, occasionally drove over the river and that the river looked and smelled polluted, and that he
would like to fish, camp, swim, and picnic near the river but would not do so because he was
concerned that the water was polluted by Laidlaw’s discharges. The fact that the plaintiff was being
In its reply (docket no. 22), Uber emphasizes that its standing argument “did not rely on the
fact that Plaintiffs had not used or attempted to use Uber’s App.” Docket no. 22 at 3 (emphasis
omitted). However, although it’s true that Uber did not base its standing argument on this point, it
did assert that Plaintiff’s claims “are entirely conclusory and speculative” insofar as they “do not
allege they ever used Uber’s App, were ever denied service or know of other denied service, or that
a driver ever refused to stow mobility equipment.” Docket no. 6 at 5. Whether Plaintiffs’ claims
are speculative on these bases is relevant to standing.
deterred from visiting the river by Laidlaw’s conduct, and that plaintiff suffered the loss of
opportunity to enjoy the river, were sufficient to establish injury and standing.
The ADA expressly recognizes that an ADA plaintiff need not have visited an establishment
or requested services if the plaintiff knows doing so will result in discrimination. It provides that
“[n]othing in this section [§ 12188] shall require a person with a disability 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. Thus, there is no requirement that a
plaintiff in a wheelchair enter or try to enter an establishment that is not wheelchair accessible to
establish standing - it is enough that the plaintiff is aware that the establishment is not wheelchair
accessible and is thereby deterred from visiting the establishment because they know they will suffer
discrimination if they go there. Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (“Although
plaintiffs need not engage in the ‘futile gesture’ of visiting a building containing known barriers that
the owner has no intention of remedying, see 42 U.S.C. § 12188(a)(1), they must at least prove
knowledge of the barriers and that they would visit the building in the imminent future but for those
barriers.”); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136-37 (9th Cir. 2002) (“under
the ADA, once a plaintiff has actually become aware of discriminatory conditions existing at a public
accommodation, and is thereby deterred from visiting or patronizing that accommodation, the
plaintiff has suffered an injury,” and “[s]o long as the discriminatory conditions continue, and so
long as a plaintiff is aware of them and remains deterred, the injury under the ADA continues”). If
the plaintiff knows a business has no accessible entrance, the plaintiff should not be forced to go to
the building and sit outside. The injury – being unable to enter the building – exists either way.
Traveling to such an establishment would be a “futile gesture” under § 12188.
Similarly, there is no requirement that a plaintiff seek services and be denied, so long as the
plaintiff has actual notice that she would be denied service in violation of the ADA (in other words,
that the defendant does not intend to comply with the ADA). Therefore, the Court agrees with
Plaintiffs that they were not required to attempt to use Defendants’ apps or services in order to have
standing to bring an ADA claim against them.5 However, they must do more than speculate – they
As noted, however, the law is not settled. Some courts would require a plaintiff to have
visited an establishment or have requested services to establish standing. And Uber notes in a
must demonstrate that they have “actual notice” that the defendant “does not intend to comply” with
the ADA. They must also allege that, but for such notice, they would use the services but are
currently being deterred from doing so.
Plaintiffs argue that they had actual notice at the time they filed the complaint and thus had
standing at the time they filed the complaint.6 They argue that they “have pleaded sufficient facts
to show they have actual knowledge that Defendants and their vehicles are not in compliance with
the ADA.” In support of this statement, they point to the fact that they alleged in the Complaint that
“on information and belief,” Defendants do not provide any manner for securing a wheelchair
accessible vehicle or providing services at all for customers such as Plaintiffs. Plaintiffs contend that
this is an allegation that they have actual notice that Defendants do not intend to comply. However,
this fails to establish Plaintiffs’ actual notice.7 Without knowing what information Plaintiffs had,
the Court is unable to determine from Plaintiffs’ allegations whether Plaintiffs had the requisite
footnote that the Fifth Circuit’s unpublished opinion in Bynum v. American Airlines, Inc., 166
F.App’x 730 (5th Cir. 2006) suggests that it is a requirement. Docket no. 6 at 18 n.17. In Bynum,
the Fifth Circuit held that a plaintiff lacked standing to assert ADA claims against airlines on which
he had never traveled. id. at *3 (“We agree with the district court that Appellant’s lawsuit against
the airlines for which he had not flown lacked any basis in fact and that he lacked standing to sue
these airlines.”). However, there was no analysis of the “futile gesture” exception in § 12188 or
whether the plaintiff was aware that those airlines were also allegedly violating the ADA. Uber also
states that Jolly v. Pappas Restaurants, Inc., 189 F.3d 467 (5th Cir. 1999) (unpublished) suggests
that it is a requirement, but this Court does not read Jolly that way. There, the plaintiff and his wife
had visited the establishment a number of times, but the court found a lack of standing because the
restaurant made clear that they would be welcome in the future. The court held, “a plaintiff seeking
injunctive relief based on an alleged past wrong must show that there is a real or immediate threat
that he will be wronged again.” Id. at *1. Thus, Jolly presents a different situation.
After filing the complaint, Plaintiffs attempted to use Uber and Lyft and allegedly
experienced discrimination in violation of the ADA. Plaintiffs assert that the fact that they were
denied services was “no surprise” because “they had actual knowledge that Uber and Lyft’s policy
was to deny service to disabled individuals.” Docket no. 19 at 2. While this may be evidence that
Plaintiffs’ allegations turned out to be correct, it does not show that they had actual notice at the time
they filed the complaint.
In their Sur-reply, Plaintiffs again assert that “they had actual notice of Defendants’ refusal
to provide service to the disabled because of their disabilities” but fail to provide any facts,
affidavits, or evidence demonstrating this assertion. Docket no. 24-1 at 2.
actual notice at the time they filed the Original Complaint. They may have had sufficient
information to qualify as actual notice or they may have been asserting purely speculative claims.
Although a plaintiff may assert that the defendant is violating the law “on information and belief”
and may obtain discovery to prove such violation, the ADA requires that Plaintiffs demonstrate
“actual notice” and Plaintiffs do not need discovery to clarify what information they had before filing
suit that would qualify as actual notice.
Further, as noted, Plaintiffs did try to use Uber and Lyft after filing the Original Complaint
and seek to file an Amended Complaint. However, Plaintiffs do not refute Defendants’ arguments
that post-filing events cannot cure a deficiency in standing that existed at the time the Original
Complaint was filed. The argue only that they had standing when their Original Complaint was
filed. Because Plaintiffs have the burden to establish standing and jurisdiction, the Court finds that
Plaintiffs have waived any argument that, even if they lacked standing when they filed the Original
Complaint, their actions after filing may cure this deficiency.
In resolving a 12(b)(1) motion, the Court is not limited to the allegations in the Complaint.
This Court in Betancourt and the Supreme Court in Laidlaw considered the plaintiffs’ affidavits
submitted in opposition to the 12(b)(1) motion to determine whether they had standing. Therefore,
no later than January 26, 2015, Plaintiffs are directed to either (1) file affidavits demonstrating that
they had actual notice at the time they filed the Original Complaint and that, but for that notice, they
would have used Uber and Lyft or (2) voluntarily dismiss the lawsuit without prejudice to refiling
pursuant to Rule 41.
SIGNED this 14th day of January, 2015.
UNITED STATES DISTRICT JUDGE
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