WEST v. DOCUSIGN, INC.

              IN THE UNITED STATES DISTRICT COURT                       
           FOR THE WESTERN DISTRICT OF PENNSYLVANIA                     

ANNE WEST, TOM BROWN,                                                     

        Plaintiffs,               19cv0501                              
                                  LEAD CASE                             
             v.                   ELECTRONICALLY FILED                  

DOCUSIGN, INC.,                                                           

        Defendant.                                                      


KAREN CLARK,                                                              

        Plaintiff,                1:19cv0135 Erie                       
                                  CONSOLIDATED CASE                     
             v.                                                         

ALIBRIS INC., DOES 1-5,                                                   

        Defendants.                                                     



                    MEMORANDUM ORDER                                    

   Defendant, Albris, Inc., filed a Motion to Dismiss the Complaint (ECF 103) and Brief in 
Support (ECF 104) arguing that this Court: (1) lacks subject matter jurisdiction, and (2) that the 
Complaint failed to state a claim upon which relief could be granted. See  Fed.R.Civ.P. 12(b)(1) 
and Fed.R.Civ.P. 12(b)(6).    Plaintiff opposed this Motion (ECF 121), making the matter ripe for 
disposition.                                                              
   The Court, after careful consideration of the issues raised and argued by both Parties, will 
deny the Motion to Dismiss for the reasons set forth herein.              
I.  Background                                                            
   The Court writes primarily for the benefit of the parties, and thus, the factual background 
shall be truncated.                                                       
   Plaintiff, a blind and/or visually impaired individual, brought this action against 
Defendant alleging that Defendant denied her equal access to its website, thereby violating the 

rights guaranteed to her under Title III of the Americans with Disabilities Act, 

42 U.S.C. §§ 12181

 to 12189 (“ADA”).  Simply stated, Plaintiff claims Defendant’s website is not ADA 
compliant and she, as a visually impaired person, is unable to utilize the company’s website.  

II.  Analysis                                                             
   In Defendant’s Motion to Dismiss and Brief in Support, Defendant first contends that 
“Plaintiff cannot as a matter of law establish that Defendant’s website is indeed a place of public 
accommodation under Title III of the ADA, as interpreted by the 3rd Circuit.”   However, the 
Court notes that Defendant primarily relies upon a decision reached the United States Court of 

Appeals for the Third Circuit in Ford v. Schering- Plough Corp., 

145 F.3d 601

 (3d Cir. 1998). 
   In Gniewkowski v. Lettuce Entertain You Enterprises, Inc., 

251 F.Supp. 3d 908

 (2017), 
this Court considered the very argument raised by Defendant in the instant matter, and denied the 
Motion to Dismiss.  The Gniewkowski case is factually on all four corners with the instant 
matter.  For Defendant’s edification, the Court will restate the relevant portions of the 
Gniewkowski decision herein:                                              
             A Motion to Dismiss pursuant to Fed. R.Civ.P. 12(b)(1) challenges 
        this Court’s “very power to hear the case.”  See Judkins v. HT Window 
        Fashions Corp., 

514 F. Supp. 2d 753, 759

 (W.D. Pa. 2007) (Lancaster, J.) 
        (quoting Mortenson v. First Fed. Sav. & Loan Ass’n, 

549 F.2d 884, 891

 
        (3d Cir. 1977)).  As the party asserting jurisdiction, Plaintiff “bears the 
        burden of showing that its claims are properly before the district court.”  
Dev. Fin. Corp. v. Alpha Housing & Health Care, 

54 F.3d 156, 158

 (3d 
Cir. 1995).  In reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), 
this Court must distinguish between facial attacks and factual attacks.  See 
Petruska v. Gannon Univ., 

462 F.3d 294

, 302 (3d Cir. 2006).     

   A facial attack challenges the sufficiency of the pleadings, and the 
Court must accept the Plaintiff's allegations as true.  Id.  A Defendant who 
attacks a complaint on its face “[asserts] that considering the allegations of 
the complaint as true, and drawing all reasonable inferences in favor of 
[plaintiff], the allegations of the complaint are insufficient to establish a 
federal cause of action.”  Mullen v. Thompson, 

155 F. Supp. 2d 448, 451

 
(W.D. Pa. 2001).  Dismissal is proper under Rule 12(b)(1) only when “the 
claim clearly appears to be immaterial and made solely for the purpose of 
obtaining jurisdiction or. . . is wholly insubstantial and frivolous.”  Kehr 
Packages, Inc. v. Fidelcor, Inc., 

926 F.2d 1406, 1409

 (3d Cir. 1991) 
(quoting Bell v. Hood, 

327 U.S. 678, 682

 (1946)).               

   When, as in this case, a Defendant launches a factual attack on 
subject matter jurisdiction, “no presumptive truthfulness attaches to 
plaintiff's allegations, and the existence of disputed material facts will not 
preclude the trial court from evaluating for itself the merits of 
jurisdictional claims.”  Petruska, 462 F.3d at 302 (quoting Mortenson, 

549 F.2d at 891

).  In a factual attack, this Court must weigh the evidence 
relating to jurisdiction, with discretion to allow affidavits, documents, and 
even limited evidentiary hearings.  See United States ex rel. Atkinson v. 
Pa. Shipbuilding Co., 

473 F.3d 506, 514

 (3d Cir. 2007).         

   B.  Rule 12(b)(6)                                          
   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 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.                                   

                 *    *    *                                  

   Next, this Court examines two cases cited by the Parties, both 
emanating from the Court of Appeals for the Third Circuit, and  
interpreting the specific phrase “place of public accommodation.” 

   In the first case relied upon by the Parties, Ford v. Schering–
Plough Corp., 

145 F.3d 601

 (3d Cir. 1998), the plaintiff sued her former 
employer alleging that differences in mental and physical health benefits 
provided by her employer through policies of insurance violated various 
provisions of the ADA. The Court of Appeals agreed that the plaintiff-
employee, who could not perform the functions of her former position due 
to a mental illness, could sue her employer under Title I of the ADA 
regarding her disability benefits; however, the Court determined that the 
plaintiff-employee's claim against her employer and MetLife, the 
disability insurer, alleging a disparity in the employer's insurance benefits 
for mental and physical disabilities did not violate Title III of the ADA. 
In reaching this conclusion, the Court of Appeals noted as follows: 

The fact that an insurance office is a public accommodation,  
however, does not mean that the insurance policies offered at that 
location are covered by Title III. In the instant case, Schering 
[plaintiff's employer] and MetLife offered disability benefits to 
Ford in the context of her employment at Schering, meaning that 
the disability benefits constituted part of the terms and conditions 
of Ford's employment. Terms and conditions of employment are  
covered under Title I, not Title III....Therefore, Ford cannot state a 
claim against her employer, Schering, pursuant to Title III.  

Regarding MetLife, the disability benefits that Ford challenges do 
not qualify as a public accommodation and thus do not fall within 
the rubric of Title III. The plain meaning of Title III is that a public 
accommodation is a place, leading to the conclusion that “ ‘[i]t is 
all of the services which the public accommodation offers, not all 
services which the lessor *917 of the public accommodation    
offers[,] which fall within the scope of Title III.’ ” [Parker v. 
Metropolitan Life Ins. Co., ] 

Id.

 [

121 F.3d 1006

,] at 1011 [ (6th 
Cir. 1977) ] (quoting Stoutenborough v. National Football League, 
Inc., 

59 F.3d 580, 583

 (6th Cir.1995) (a television broadcast is not 
covered by Title III)). This is in keeping with the host of examples 
of public accommodations provided by the ADA, all of which refer 
to places. See 

42 U.S.C. § 12181

(7). Since Ford received her  
disability benefits via her employment at Schering, she had no 
nexus to MetLife's “insurance office” and thus was not        
discriminated against in connection with a public accommodation. 
Furthermore, the “goods, services, facilities, privileges,    
advantages, or accommodations” concerning which a disabled    
person cannot suffer discrimination are not free-standing concepts 
but rather all refer to the statutory term “public accommodation” 
and thus to what these places of public accommodation provide. 
Ford cannot point to these terms as providing protection from 
discrimination unrelated to places.                           

145 F.3d at 612–13.                                             

   In the second case referenced by the Parties, Peoples v. Discover 
Financial Services, 

387 Fed.Appx. 179

 (3d Cir. 2010), the plaintiff alleged 
he had been overcharged by a prostitute when he paid with his credit card 
for services he received. The plaintiff filed a fraud claim with defendant 
(“DFS”), his credit card company, but after completing an investigation, 
DFS ultimately refused to credit the Plaintiff's account for the amounts in 
dispute. The plaintiff sued DFS for ADA violations claiming “DFS” 
discriminated against him by failing to consider his blindness when 
addressing his fraud claim. The district court granted summary judgment 
in DFS' favor, with a key determination being that plaintiff used his credit 
card to pay for his transactions with the prostitute at her apartment, and 
because DFS did not own, lease, or operate that location, it was not a place 
of public accommodation over which DFS exercised control.       

   On appeal, the Court of Appeals noted that “Courts of Appeals are 
split on whether the term ‘public accommodation,’ as used in the ADA, 
refers to an actual physical structure or whether it has some broader 
meaning.” 

387 Fed.Appx. at 183

. Relying on its own earlier decision in 
Ford, the Court of Appeals held as follows:                     

Our court is among those that have taken the position that the term 
is limited to physical accommodations. Ford, 

145 F.3d at 612

. 
Despite [the plaintiff's] request that we “clarify or reconsider” our 
holding in Ford and extend our interpretation of public       
accommodations to include things other than physical places   
(Appellant's Op. Br. at 27), we are bound by our precedent. See Pa. 
Ass'n of Edwards Heirs v. Rightenour, 

235 F.3d 839, 844

 (3d Cir. 
2000) (“Under this Court's Internal Operating Procedures, we are 
bound by, and lack the authority to overrule, a published decision 
by a prior panel....”) (citation omitted).                    

Under Ford, [the plaintiff's] argument fails because the      
communication between [the prostitute's] credit card processing 
terminal and DFS is not a “public accommodation” within the   
meaning of the ADA. See 

145 F.3d at 612

 (holding that “[t]he  
plain meaning of Title III is that a public accommodation is a 
place...”). As the District Court noted, “[t]he evidence is that [the 
plaintiff] used his Discover Card to pay for the transactions with 
[the prostitute] at her apartment,” and, “[t]hough [DFS's] credit 
services can be used by cardmembers at a merchant's place of  
accommodation, DFS itself does not own, lease or *918 operate 
those locations.” (App. at 6.) Thus, because DFS's alleged    
discrimination (i.e., the supposedly insufficient investigation of 
[the plaintiff's] fraud claim) in no way relates to the equal 
enjoyment of goods, services, facilities, privileges, advantages, or 
accommodations on physical property that DFS, rather than [the 
prostitute], owns, leases, or operates, the District Court correctly 
granted summary judgment against Peoples on his ADA claim.    

Id.

 at 183–84 (footnote omitted).                               
             In both of the above cases, the Court of Appeals did not wish to 
        expand the meaning of “place of public accommodation” to include places 
        where: (1) an insurance policy was issued or implemented, or (2) a credit 
        card company's processing terminals were located. Importantly, however, 
        in both Ford and Peoples, the alleged discrimination occurred at a location 
        where neither the insurance carrier in Ford, nor the credit card company in 
        Peoples, had ownership or possession, or exercised control. Conversely, in 
        the instant matter, the alleged discrimination has taken place on property 
        that AmeriServ owns, operates and controls—the AmeriServ website. 

             This Court finds that because AmeriServ owns, operates, and 
        controls the property through which persons access its services, this matter 
        is distinguishable from the Ford and Peoples cases. This Court also finds 
        that the allegations set forth in Plaintiff's Complaint establish that the 
        alleged discrimination—Plaintiffs' inability to access financial services 
        information—took place at a property that AmeriServ owns, operates, and 
        controls. Accordingly, the Court will deny AmeriServ's 12(b)(6) Motion 
        because Plaintiffs have properly pled a legally cognizable claim under 
        Title III of the ADA.                                           

Gniewkowski v. Lettuce Entertain You Enterprises, Inc, 

251 F. Supp. 3d 908

, 916–18 (W.D. Pa. 
2017).                                                                    
   Like AmeriServe in the Gniewkowski case, according to the well-pled Complaint in this 
matter, Defendant-Alibris owns, operates and controls the property (i.e., the website) through 
which persons access its services.  Plaintiff’s allegations support a theory that she was rendered 
unable to access property (i.e., the website) owned, operated, and controlled by Defendant.  The 
legal argument raised by Defendant is, therefore, not supported by the Third Circuit authority 
which it cites, and runs contrary to decisions reached (and published) by this Count in 
substantially similar if not identical cases such as Gniewkowski.         
   Finally, with respect to Defendant’s argument that Plaintiff lacks standing to sue because 
“she cannot demonstrate that she suffered an injury in fact, nor can she demonstrate a future 
injury that is actual or imminent,” the Court also addressed this issue in Gniewkowski, holding as 
follows:                                                                  
   With respect to standing, the United States Supreme Court has 
held:                                                           

   [T]he irreducible constitutional minimum of standing       
contains three elements. First, the plaintiff must have suffered 
an “injury in fact”—an invasion of a legally protected interest 
which is (a) concrete and particularized, and (b) actual or   
imminent, not conjectural or hypothetical[.] Second, there must 
be a causal connection between the injury and the conduct     
complained of—the injury has to be fairly...trace[able] to the 
challenged action of the defendant, and not...th[e] result [of] 
the independent action of some third party not before the court. 
Third, it must be “likely,” as opposed to merely “speculative,” 
that the injury will be redressed by a favorable decision.    

Lujan v. Defenders of Wildlife, 

504 U.S. 555

, 560–61, 

112 S.Ct. 2130

, 

119 L.Ed.2d 351

 (1992) (internal quotations and citations omitted); see also 
Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 

140 F.3d 478

, 484–85 (3d Cir. 1998) (same three requirements must be met to 
establish standing). The Supreme Court noted that the party invoking 
federal jurisdiction bears the burden of establishing these three elements 
“with the manner and degree of evidence required at the successive stages 
of the litigation.” 

Id. at 561

, 

112 S.Ct. 2130

. The Court further noted that 
“[a]t 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.” 

Id.

 (internal quotations and citation 
omitted).                                                       

   Turning to the instant case, AmeriServ accepts the fact that 
Plaintiff Frazier is a resident of Allegheny County, Pennsylvania, and is 
legally and permanently blind—a fact which this Court also accepts as 
true. Doc. no. 51, p. 2; (see also doc. no. 1, case no. 2:17–cv–00031). As a 
blind person, Plaintiff utilizes screen reading software in order to access 
website content. Doc. no. 1, ¶ 3, case no. 2:17–cv–00031. Per the 
Complaint, Frazier's claims arose in this judicial district when she 
encountered access barriers to AmeriServ's website while utilizing her 
screen reader software. 

Id.

                                     
Gniewkowski, 251 F. Supp. 3d at 912–13 (W.D. Pa. 2017).                   
   In the instant matter, Defendant-Albris does not deny that Plaintiff is a visually impaired 
person, nor does it deny that owns and operates a website through which it offers products and/or 
services to the public-at-large.  In fact, Defendant acknowledges that it has endeavored to 

improve the website to make it less difficult for visually impaired persons to utilize same.  
According to the affidavit submitted by Defendant, it has done all it can do in this regard. 
   However, Defendant’s affidavit does not refute the key allegations of Plaintiff’s 
Complaint relating to the Plaintiff’s inability to access the content on Defendant’s website. 
Therefore, this Court finds that, at this juncture of the legal proceedings, Plaintiff has sufficiently 
established that she has sustained an injury in fact.                     

III. CONCLUSION                                                           
   Based on the identity of the issues and the factual similarity with the Gniewkowski case, 

and because the case law cited by Defendant is not supportive of the issues raised, this Court will 
deny the Motion to Dismiss.                                               

                      \ORDER OF COURT                                   
   AND NOW this 15th day of August, 2019, the Court hereby DENIES the Motion to 
Dismiss filed by Defendant. ECF 103.   Defendant must file an Answer to the Complaint on or 
before August 28, 2019.                                                   
                                 /s/ Arthur J. Schwab                   
                                 Arthur J. Schwab                       
                                 United States District Judge           

cc: All ECF Counsel of Record