Namisnak v. Uber Techs., Inc.

• Decision Date: 24 August 2020
• Docket Number: No. 18-15860,18-15860
• Citation: 971 F.3d 1088
• Parties: Stephan NAMISNAK; Francis Falls, Plaintiffs-Appellees, v. UBER TECHNOLOGIES, INC.; Rasier, LLC, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.3d 1088

Stephan NAMISNAK; Francis Falls, Plaintiffs-Appellees,

v.UBER TECHNOLOGIES, INC.; Rasier, LLC, Defendants-Appellants.

No. 18-15860

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2020 San Francisco, California

Filed August 24, 2020

Bryan Killian (argued) and Stephanie Schuster, Morgan Lewis & Bockius LLP, Washington, D.C.; Anne Marie Estevez, Morgan Lewis & Bockius LLP, Miami, Florida; for Defendants-Appellants.

Karla Gilbride (argued), Public Justice P.C., Washington, D.C.; Garret DeReus, Bizer & Dereus LLC, New Orleans, Louisiana; William Most, Aqua Terra Aeris Law Group, Albany, California; for Plaintiffs-Appellees.

Before: J. Clifford Wallace and Ryan D. Nelson, Circuit Judges, and Frederic Block,^* District Judge.

Opinion by Judge R. Nelson

R. NELSON, Circuit Judge:

Plaintiffs Stephen Namisnak and Francis Falls ("Plaintiffs") sued Uber Technologies, Inc. ("Uber") under the Americans with Disabilities Act ("ADA") for not providing a wheelchair-accessible ride-sharing option in their hometown of New Orleans. But they never downloaded the Uber App—and therefore did not sign Uber's arbitration agreement—before filing suit. According to Uber, because Plaintiffs do not have the Uber App and therefore do not use Uber, they cannot satisfy the injury-in-fact prong of the Article III standing analysis. And even if they can, Uber argues, they should be equitably estopped from avoiding Uber's arbitration agreement because they consciously avoided downloading the Uber App and signing the Terms and Conditions. The district court disagreed. So do we. We therefore affirm.

I

Uber is a technology company that creates smartphone applications. One of those applications is called the Uber App, which connects those looking for a ride with drivers looking to provide rides. To take advantage of this service, riders must download the Uber App on their smartphones. Before using the Uber App, they must also agree to Uber's Terms and Conditions, which includes an arbitration agreement.

Signing the arbitration agreement allows riders access to the Uber App and the ability to hail drivers to give them rides to their desired location. Depending on the location, various types of rides are available. Many riders use "UberX," which is a ride in a sedan. Others choose "Uber Black," which is a ride in a luxury sedan. Still others elect to use "UberXL," which provides rides for larger groups, including families. Finally, in at least San Francisco, Portland, and Washington D.C., riders can use uberWAV, which provides rides to those in need of wheelchair-accessible vehicles, or WAVs.

Plaintiffs Namisnak and Falls would like to use the uberWAV option due to their disabilities. Namisnak has muscular dystrophy

. Falls is paraplegic following a spinal cord injury. But neither Plaintiff can use the uberWAV service because it is not available in New Orleans, where they live. So they never downloaded the Uber App or tried to hail an uberWAV ride. Instead, they filed suit under the ADA, alleging that Uber discriminated against them by not providing uberWAV in New Orleans. As relief, they sought an injunction requiring Uber to provide uberWAV in New Orleans.

In the operative complaint, Plaintiffs alleged that they could not "successfully use Uber's services because Uber does not offer a button, option, or icon in the Uber App for the New Orleans market which would allow a wheelchair user to summon a van-equipped vehicle." They further alleged that they were "presently aware that if they tried to install and use the Uber Application that they would experience serious difficulty" due to Uber's failure to provide an accommodating service. Finally, they alleged that they "plan to and will attempt to use the Uber Application and Uber's programs, services, and accommodations in the future as patrons should those programs, services, and accommodations become wheelchair-accessible."

Uber moved to compel Plaintiffs—as well as a third plaintiff who had downloaded the Uber App and signed Uber's arbitration agreement—to arbitrate their claims. The district court granted the motion in part and denied it in part. According to the district court, the third plaintiff was required to arbitrate his claims because he signed Uber's Terms and Conditions—including the arbitration agreement—when he downloaded the Uber App. But the same was not true for Falls and Namisnak. They had not downloaded the Uber App or signed the arbitration agreement, so they could not be bound by it. Nor could they, according to the district court, be equitably estopped from avoiding arbitration because their claims were not intertwined with or reliant on Uber's Terms and Conditions as required under California law. Uber now appeals that decision. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B).

II

Uber argues for the first time on appeal that Plaintiffs have not plausibly alleged sufficient facts to establish each element of the standing inquiry. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "To establish standing, a plaintiff must demonstrate (1) a concrete and particularized injury that is actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the defendant's challenged conduct; and (3) a likelihood that a favorable decision will redress that injury." Nat'l Family Farm Coalition v. EPA , 966 F.3d 893, 908 (9th Cir. 2020) (quoting Pyramid Lake Paiute Tribe of Indians v. Nev., Dep't of Wildlife , 724 F.3d 1181, 1187 (9th Cir. 2013) ). "For purposes of ruling on a motion to dismiss for want of standing, both trial and reviewing courts must accept as true all material allegations of the complaint and must construe the complaint in favor of the complaining party." Maya v. Centex Corp. , 658 F.3d 1060, 1068 (9th Cir. 2011) (quoting Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ). In applying this standard, we must determine whether the plaintiffs have "clearly allege[d] facts demonstrating each element" of standing. Spokeo v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (internal quotation marks and alterations omitted). Plaintiffs have met that standard here.

A

The first element of the Article III standing analysis—injury in fact—can be satisfied in ADA cases by showing that the plaintiff was deterred from attempting to visit a location or use a service because of alleged ADA noncompliance. Civil Rights Educ. and Enforcement Ctr. v. Hospitality Props. Tr. , 867 F.3d 1093, 1098–99 (9th Cir. 2017). This "deterrent effect doctrine" recognizes that "[w]hen a plaintiff who is disabled within the meaning of the ADA has actual knowledge of illegal barriers at a public accommodation to which he or she desires access, that plaintiff need not engage in the ‘futile gesture’ of attempting to gain access in order to show actual injury." Id. (quoting Pickern v. Holiday Quality Foods Inc. , 293 F.3d 1133, 1135 (9th Cir. 2002) ). This doctrine was first set out in Teamsters v. United States , 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), in which the Supreme Court held that an employment-discrimination plaintiff need not take "futile gesture[s]"—like applying for a job he knows he will not get due to the employer's discrimination—that would merely subject him to the "humiliation of explicit and certain rejection." Id. at 365–66, 97 S.Ct. 1843.

We have since applied this doctrine in several cases. In Civil Rights Education , for example, wheelchair-bound hotel patrons who did not visit the hotels they were suing nonetheless satisfied injury-in-fact under the "deterrent effect doctrine" because they knew that the hotels did not provide a "shuttle service for mobility-impaired people" and intended "to visit the relevant hotels" once the hotels’ ADA "non-compliance [was] cured." 867 F.3d at 1097, 1099. Similarly, in Pickern , a wheelchair-bound shopper had standing to sue a grocery store whose "architectural barriers" made it difficult to gain access to the store because he alleged that "he ha[d] actual knowledge of the barriers to access at that store" and "would shop at [the store] if it were accessible" to him. 293 F.3d at 1135–36, 1138 ; see also Doran v. 7-Eleven, Inc. , 524 F.3d 1034, 1040–41 (9th Cir. 2008) (finding deterrent-effect standing).

This case is no different. Plaintiffs allege they are aware Uber does not offer uberWAV in New Orleans; that they cannot use the Uber App because of its failure to offer uberWAV; that they plan to use the Uber App if it becomes wheelchair-accessible; and that they "presently fear that they will encounter the mobility-related barriers which exist within Uber's Application and services." Downloading the Uber App and creating an account are attempts to gain access to the services Uber provides. But Plaintiffs have actual knowledge that Uber does not provide its uberWAV service in New Orleans. That barrier to entry makes downloading the Uber App and creating an account a futile gesture, which Plaintiffs need not engage in to show injury in fact.

Uber's arguments to the contrary are unpersuasive. First, Uber argues that downloading the Uber App and creating an account is not "humiliating" and therefore cannot meet what it calls the "humiliating-yet-futile" standard. No such standard exists in our caselaw. In our Circuit, the proper question is whether Plaintiffs have actual knowledge of and are deterred by allegedly illegal barriers to access. See Civil Rights Educ. , 867 F.3d at 1098 ; Pickern , 293 F.3d at 1137–38. Plaintiffs have satisfied that standard here.

Second, Uber argues Plaintiffs have not plausibly alleged injury in fact because there may be other reasons they were deterred. For example, Uber says, Plaintiffs may not have smartphones, credit cards, access to the App Store or Google Play Store, or a desire to assent to the Terms and Conditions of the Uber App. But our caselaw does not require Plain...