National Federation of the Blind et al v. Scribd, Inc.
OPINION AND ORDER denying 37 Motion for Certification of Order for Interlocutory Review and denying as moot MOTION to Stay Action Pending Further Appellate Proceedings. Signed by Judge William K. Sessions III on 5/29/2015. (law)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
NATIONAL FEDERATION OF THE
BLIND, on behalf of its members :
and itself, and HEIDI VIENS,
Case No. 2:14-cv-162
Opinion and Order
Plaintiffs National Federation of the Blind (“NFB”) and
Heidi Viens, a member of NFB residing in Colchester, Vermont,
brought this suit against Scribd, Inc. (“Scribd”).
Plaintiffs’ Complaint alleges that Scribd has violated Title III
of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12182, because its website and mobile applications (“apps”) are
inaccessible to the blind.
On March 19, 2015, the Court denied
Scribd’s Motion to Dismiss for Failure to State a Claim.
No. 30 (the “March Order”).
Pursuant to 28 U.S.C. § 1292(b)
Scribd now moves to certify the March Order for interlocutory
review and to stay the action pending a request for
interlocutory appeal to the Second Circuit.
ECF No. 37.
the reasons explained at length below, Scribd’s motion is denied
and discovery will proceed.
28 U.S.C. § 1292(b) permits district courts to certify an
order for immediate interlocutory appeal when it “involves a
controlling question of law as to which there is substantial
ground for difference of opinion” and “an immediate appeal from
the order may materially advance the termination of the
Section 1292(b), however, “is a rare
exception to the final judgment rule” and its use “is reserved
for those cases where an intermediate appeal may avoid
Kellogg v. Wyeth, 612 F. Supp. 2d 437,
439 (D. Vt. 2009) (internal quotation and citation omitted).
Certification is “not intended as a vehicle to provide early
review of difficult rulings in hard cases.”
German by German v.
Fed. Home Loan Mortgage Corp., 896 F. Supp. 1385, 1398 (S.D.N.Y.
District courts have substantial discretion in deciding
whether to certify a question for interlocutory appeal.
Latouche v. N. Country Union High Sch. Dist., 131 F. Supp. 2d
568, 573 (D. Vt. 2001).
The Second Circuit, however, has
“urge[d] the district courts to exercise great care in making a
§ 1292(b) certification.”
Westwood Pharm., Inc. v. Nat'l Fuel
Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992).
must be “exceptional circumstances justify[ing] a departure from
the basic policy of postponing appellate review until after the
entry of a final judgment.”
Transp. Workers Union of Am., Local
100, AFL-CIO v. New York City Transit Auth., 505 F.3d 226, 229
(2d Cir. 2007) (internal quotation and citation omitted.”
District courts, therefore, should construe the requirements for
Latouche, 131 F. Supp. 2d. at 573.
Scribd previously argued that the Plaintiffs did not
sufficiently allege that it owns, leases, or operates a place of
public accommodation as is required to state a claim under Title
III of the ADA.
The Court denied Scribd’s motion to dismiss
because the text of the ADA is ambiguous and the statute’s
legislative history resolved the ambiguity in the Plaintiffs’
The Court further determined that the services Scribd
offers fall within at least one of the general categories of
public accommodations listed in the statute and that the
Plaintiffs had therefore sufficiently alleged that Scribd owns,
leases, or operates a place of public accommodation.
ECF No. 30
The proponents of an interlocutory appeal have the burden
of showing that all three of the substantive criteria are met,
or in other words that: 1) the order concerns a controlling
question of law, 2) there is a substantial ground for difference
of opinion, and 3) an immediate appeal may materially advance
the ultimate termination of the litigation.
In re Facebook,
Inc., IPO Sec. & Derivative Litig., 986 F. Supp. 2d 524, 529
It is unclear whether the March Order concerned a
controlling question of law.
If the Second Circuit were to
disagree with the Court’s construction of the statute and hold
that Scribd does not own, lease, or operate a place of public
accommodation then the Plaintiffs’ claim likely would end.
However, that would certainly not be the case if the Second
Circuit were to affirm the Court’s March Order.
Moreover, the appellate court might very well remand for
Scribd argued that Title III does not apply
to entities that do not operate a physical place open to the
The Second Circuit could disagree with the Court’s
conclusion but still credit the Plaintiffs’ previous argument
that computer servers may be considered a physical place of
See ECF No. 17 at 3 (“Alternatively, even
if Scribd were correct that Title III’s application is
constricted to operations from a physical ‘place,’ Scribd’s web
servers . . .
would qualify as a ‘place.’”); id. at 20-22
The parties might then need to conduct
discovery to determine how patrons access information from
Scribd’s computer server facilities.
Scribd cannot demonstrate that the other two criteria are
The legislative history of 28 U.S.C. § 1292(b) suggests
that to satisfy the second prerequisite there must be
“‘substantial doubt’” that the district court’s order was
N.F.L. Ins. Ltd. By Lines v. B&B Holdings, Inc., No.
91 Civ. 8580 (PKL), 1993 WL 255101, at *2 (S.D.N.Y. July 1,
1993) (quoting S. Rep. No. 2434, 85th Cong., 2d Sess. (1958)
reprinted in 1958 U.S.C.C.A.N. 5255, 5257).
The Court has no
such doubt here.
The Court acknowledges that this is an issue of first
impression for the Second Circuit.
However, “the mere presence
of a disputed issue that is a question of first impression,
standing alone, is insufficient to demonstrate a substantial
ground for difference of opinion.”
(2d Cir. 1996).
In re Flor, 79 F.3d 281, 284
Rather, “it is the duty of the district judge
to analyze the strength of the arguments in opposition to the
challenged ruling when deciding whether the issue for appeal is
truly one on which there is a substantial ground for dispute.”
Id. (internal quotation, alterations, and citation omitted).
The Court has already considered and rejected the arguments
Scribd raises in the present motion.
In re Methyl Tertiary
Butyl Ether Products Liab. Litig., 399 F. Supp. 2d 320, 324
(S.D.N.Y. 2005)(“[A] party that offers only arguments rejected
on the initial motion does not meet the second requirement of §
1292(b).” (internal quotation and citation omitted)).
there is no strong argument in opposition to its ruling.
not directly on point, Pallozzi v. Allstate Life Ins. Co., 198
F.3d 28 (2d Cir. 1999) came closest to addressing the issue
before the Court in the March Order.
This Court explained that
the appellate court likely would extend its reasoning in
Pallozzi to conclude that Title III applies to companies like
Scribd that offer its goods and services exclusively online.
The Court acknowledges that other courts have reached
different conclusions about how far Title III extends.
time it issued its March Order, however, no appellate court had
ruled on the specific question the Court confronted.
opinions that previously construed Title III narrowly were
distinguishable or not applicable in the Court’s view.
Court reasoned that there is no conflict between its analysis of
Pallozzi and the cases Scribd cited from the Third, Sixth, and
Ninth Circuits because those courts “did not consider facts that
justified a finding that Title III requires some connection to a
ECF No. 30 at 12.
Few courts have considered
parties that conduct business entirely online.
that did so were essentially limited to: 1) district court
rulings bound by appellate precedent that this Court
distinguished and 2) Judge Ponsor’s opinion in Nat’l Ass’n of
the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012).
The Court agreed with Judge Ponsor’s reasoning.
Scribd now cites two unpublished decisions from the Ninth
Circuit that were decided after the March Order.
other appellate decisions the Court considered, they expressly
held that website operators with no physical place of business
open to the public were not operators of a public place of
accommodation under the ADA.
Cullen v. Netflix, Inc., No. 13-
15092, __ Fed App’x __, 2015 WL 1471802 (9th Cir. April 1,
2015); Earll v. Ebay, Inc., No. 13-15134, __ Fed. App’x __, 2015
WL 1454941 (9th Cir. April 1, 2015).
the Court’s conclusions.
These cases do not change
Putting aside the fact that they are
both unpublished decisions and are expressly non-precedential
under the Ninth Circuit’s Rules, see U.S. Ct. of App. 9th Cir.
R. 36-3(a), the Court previously considered the district court
opinions that preceded these appeals.
See ECF No. 30 at 8
(citing Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1023-24
(N.D. Cal. 2012) and Earll v. eBay, Inc., No. 5:11-cv-00262-JF
(HRL), 2011 WL 3955485, at *2 (N.D. Cal. Sept. 7, 2011)).
Moreover both the recent Ninth Circuit decisions and their
district court counterparts relied on Weyer v. Twentieth Century
Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) as precedent
they were bound to follow.
The Court considered and
distinguished Weyer in the March Order.
These two recent cases
that rely on the same cramped reasoning do not persuade the
Court that there is a substantial ground for difference of
opinion sufficient to warrant certification.
Finally, an immediate appeal will not materially advance
No discovery has yet occurred.
While the Court
appreciates that a contrary decision from the Second Circuit
could end the case and save the parties the time and expense of
discovery, there is no reason to believe that discovery will be
especially lengthy or burdensome in this case.
appeal would not obviate the need for discovery, however, if the
appellate court were to remand for further discovery concerning
how users access Scribd’s servers as described above.
Scribd has also challenged the Plaintiffs’ standing with
respect to an Article III case and controversy analysis.
Plaintiffs argue that if Scribd’s challenge is successful, the
Court’s March Opinion would be vacated because the issue of
standing is central to the Court’s jurisdiction.
Defenders of Wildlife, 504 U.S. 555, 560 (1992).
Court has not yet considered Scribd’s standing argument, it is
possible that its ruling on the preliminary legal question in
the March Order might disappear in light of the complete record
if the case is dismissed for lack of standing.
Koehler v. Bank
of Bermuda Ltd., 101 F.3d 863, 864 (2d Cir. 1996) (“It does not
serve § 1292(b)'s intended purpose to rule on an ephemeral
question of law that may disappear in the light of a complete
and final record.”).
This would only come to pass if the Second
Circuit were to affirm the March Order.
Nevertheless, the Court
holds that certification at this early stage of the litigation
will not materially advance its termination and could very well
lengthen it considerably.
Scribd’s suggestion that it would be in a better position
to consider alternative resolution once there is a controlling
appellate opinion on this issue does not undermine the Court’s
More definitive appellate rulings always yield more
information for the parties to consider in negotiations, but
that consideration does not outweigh the Court’s judgment that
an interlocutory appeal is presently inappropriate.
The intended purpose of Section 1292(b) would not be well
served by certification.
Simply put, the Court does not find
that this case presents the “exceptional circumstances” required
to justify a deviation from the normal course of postponing
appellate review until after final judgment.
Union, 505 F.3d at 229.
Because the Court denies Scribd’s motion for certification,
its request for a stay pending a request for interlocutory
appeal is denied as moot.
DATED at Burlington, in the District of Vermont, this 29th
day of May, 2015.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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