Namisnak v. Uber Techs., Inc., Case No. 17-cv-06124-RS

• Decision Date: 12 March 2020
• Docket Number: Case No. 17-cv-06124-RS
• Citation: 444 F.Supp.3d 1136
• Parties: Stephan NAMISNAK, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of California

444 F.Supp.3d 1136

Stephan NAMISNAK, et al., Plaintiffs,

v.UBER TECHNOLOGIES, INC., et al., Defendants.

Case No. 17-cv-06124-RS

United States District Court, N.D. California.

Signed March 12, 2020

Andrew David Bizer, Pro Hac Vice, Garret Scott DeReus, Bizer and DeReus, LLC, New Orleans, LA, Karla A. Gilbride, Public Justice, P.C., Washington, DC, William Brock Most, Aqua Terra Aeris Law Group, Albany, CA, for Plaintiffs Stephan Namisnak, Francis Falls.

Garret Scott DeReus, Bizer and DeReus, LLC, New Orleans, LA, William Brock Most, Aqua Terra Aeris Law Group, Albany, CA, for Plaintiff Mitchell Miraglia.

Anne-Marie Estevez, Pro Hac Vice, Morgan, Lewis and Bockius, LLP, Miami, FL, Clara Noelle Kollm, Pro Hac Vice, Patrick A. Harvey, Stephanie Beth Schuster, Morgan, Lewis and Bockius LLP, Washington, DC, Kathy Hua Gao, Morgan Lewis and Bockius LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS SECOND AMENDED COMPLAINT

RICHARD SEEBORG, United States District Judge

I. INTRODUCTION

Stephen Namisnak and Francis Falls bring this action against Uber Technologies, Inc. and its subsidiary Rasier, LLC for failure to make reasonable accommodations under federal disability law. The case was stayed for a year while the parties attempted mediation. Defendants now move to dismiss the Second Amended Complaint ("SAC"), arguing plaintiffs have no private right of action, have not been denied reasonable modifications, and have otherwise failed to state a claim. Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, and the hearing set for April 2, 2020 is vacated. For the reasons set forth below, the motion to dismiss is granted in part and denied in part.

II. BACKGROUND

Uber operates a ride-for-hire service that utilizes a mobile phone application ("app") to connect riders with drivers who have signed up with the app. The Uber app offers users services which vary from locality to locality. In some cities, such as Portland, San Francisco, Los Angeles, and Washington, D.C., the app displays an icon called "Uber Access." When a user taps on the icon, two options appear: "UberASSIST" and "UberWAV." UberASSIST connects app users with specially trained drivers who will assist riders into vehicles and can accommodate folding wheelchairs, walkers, and scooters. UberWAV offers app users the option to call a wheelchair-accessible vehicle, i.e. a "WAV."

Plaintiffs are persons with disabilities who live in New Orleans. Falls has paraplegia

as the result of a spiral cord injury and is missing his right arm. Namisnak has muscular dystrophy. Both use electric wheelchairs for mobility. These wheelchairs cannot be folded or stored in the trunk of a car, because they are too heavy. Because plaintiffs cannot drive, they use public transportation to get around. Since the Uber app in New Orleans does not provide UberWAV, plaintiffs are unable to use the service.¹ Accordingly, plaintiffs allege, Uber has violated its obligations under the Americans with Disabilities Act ("ADA").

Plaintiffs have never downloaded the Uber app because they are aware UberWAV is not offered, and their electric wheelchairs do not fit into standard cars. If Uber were to offer in New Orleans a service, such as UberWAV, which accommodated electronic wheelchairs, plaintiffs would use it. They seek declaratory and injunctive relief under Title III of the ADA, 42 U.S.C. § 12181 et seq.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) governs motions to dismiss for failure to state a claim. A complaint must contain a short and plain statement of the claim showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a). While "detailed factual allegations" are not required, a complaint must have sufficient factual allegations to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A Rule 12(b)(6) motion tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington , 51 F.3d 1480, 1484 (9th Cir. 1995). Thus, dismissal under Rule 12(b)(6) may be based on either the "lack of a cognizable legal theory" or on "the absence of sufficient facts alleged" under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC , 718 F.3d 1006, 1014 (9th Cir. 2013). When evaluating such a motion, courts generally "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN , 393 F.3d 1068, 1072 (9th Cir. 2005). However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

IV. DISCUSSION

A. Private Right of Action

Title III of the ADA authorizes suits by two classes of private persons: (i) "any person who is being subjected to discrimination on the basis of disability in violation of [Title III]" and (ii) "any person...who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title." 42 U.S.C. § 12188(a)(1) (emphasis added). In other words, any person who has been or is being subjected to discrimination on the basis of disability may sue under any provision of Title III, but a person who is "about to be subjected" to discrimination may only sue for discrimination under section 12183, which concerns the design, construction or alteration of commercial facilities. Id.

Here, plaintiffs allege that they have been and are being subjected to discrimination² because they are denied access to Uber's service for routine activities, such as attending doctor's appointments or civic engagement events, and running errands. They have not downloaded or attempted to use the Uber app because they have "personal knowledge" that UberWAV is not available in New Orleans and "chose not to engage in a process they know to be futile with Uber." SAC at 30. Defendants argue plaintiffs do not have a private right of action because their allegations cannot establish that they have experienced discrimination if they have not downloaded the app. Plaintiffs contend it would be pointless "to bump their wheelchairs into inaccessible Uber vehicles." Plaintiffs' Memorandum in Opposition, ECF No. 100, at 11.

A person with a disability is not required 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(a)(1). Under Ninth Circuit precedent, plaintiffs suing under Title III are not required to engage in a "futile gesture" in order to show actual injury under the ADA. See Pickern v. Holiday Quality Foods Inc. , 293 F.3d 1133, 1136–37 (9th Cir. 2002). The Ninth Circuit has explicitly rejected the requirement that ADA plaintiffs "personally encounter" barriers in order to sue. See Civil Rights Educ. & Enf't Ctr. v. Hosp. Props. Trust , 867 F.3d 1093, 1099 (9th Cir. 2017) ("It is the plaintiff's ‘actual knowledge’ of a barrier, rather than the sources of that knowledge, that is determinative."). This principle was discussed thoroughly in several recent cases in which Uber was a defendant. Crawford v. Uber Techs., Inc. , No. 17-cv-02664, 2018 WL 1116725, at *2 (N.D. Cal. Mar. 1, 2018) ; O'Hanlon v. Uber Techs., Inc. , No. 19-cv-00675, 2019 WL 5895425, at *5 (W.D. Pa. Nov. 12, 2019) ("[A]n individual's standing to bring a claim for disability discrimination under the ADA is not dependent on his/her undertaking futile gestures...such plaintiffs have their own standing; their deterrence-based injury is actual, cognizable and their own."); Access Living of Metro. Chicago v. Uber Techs., Inc. , 351 F. Supp. 3d 1141, 1150 (N.D. Ill. 2018) ("Garcia and Cooper did not have to download the app and request an Uber ride to be injured. They saw the app, learned of the lack of wheelchair-accessible rides, and want to use the app in the future but reasonably believe they cannot. That is sufficient."); Ramos v. Uber Techs., Inc. , No. 14-cv-00502, 2015 WL 758087, at *7 (W.D. Tex. Feb. 20, 2015) ("[A]n ADA plaintiff need not request services as long as they have actual notice that they would be denied services or treated in a discriminatory manner and they are being deterred from attempting to obtain the services by such knowledge.").

Plaintiffs have sufficiently alleged past and present discrimination; they need not engage in the "futile gesture" of downloading the Uber app to confirm they cannot use it. Namisnak and Falls have pled actual knowledge that the Uber app in New Orleans does not have a mechanism for summoning a WAV vehicle. They have stated they "want to use Uber's transportation system, but have been deterred because they know that if they tried, they would not be able to call a WAV." SAC at 9, 22, 28–30. They have also pled that "they plan to use Uber if and when it becomes accessible for persons with motorized wheelchairs in New Orleans." Id. at 10. At the pleading stage, plaintiffs are not required to do more than they already have in order to demonstrate past and present discrimination.

B. Failure to Provide Reasonable Modifications

Defendants also argue plaintiffs have failed to allege plausibly they were denied "reasonable modifications" as defined by Title III of the ADA. Section 12184 of Title III prohibits discrimination "on the basis of disability in the full and equal enjoyment of specified public transportation services." 42 U.S.C. § 12184(a). Under this section, discrimination includes, inter alia, failure to make reasonable modifications consistent with section 12182(b)(2)(A)(ii). Id. § 12184(b)(2)(A). To prevail under section 12182(b)(2)(A)(ii), the plaintiff must show the defendant failed...