Nat'l Fed'n of the Blind v. Scribd Inc.

• Decision Date: 19 March 2015
• Docket Number: Case No. 2:14–cv–162.
• Citation: 97 F.Supp.3d 565
• Parties: NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself, and Heidi Viens, Plaintiffs, v. SCRIBD INC., Defendant.
• Court: U.S. District Court — District of Vermont

97 F.Supp.3d 565

NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself, and Heidi Viens, Plaintiffs

v.SCRIBD INC., Defendant.

Case No. 2:14–cv–162.

United States District Court, D. Vermont.

Signed March 19, 2015.

Daniel F. Goldstein, Esq., Gregory P. Care, Esq., Haben Girma, Esq., Rebecca J. Rodgers, Esq., Brown, Goldstein & Levy, LLP, Baltimore, MD, Emily J. Joselson, Esq., Langrock Sperry & Wool, LLP, Middlebury, VT, James T. Deweese, Esq., Langrock Sperry & Wool, LLP, Burlington, VT, Laurence Paradis, Esq., Disability Rights Advocates, Berkley, CA, for Plaintiffs.

Gary F. Karnedy, Primmer Piper Eggleston & Cramer PC, Burlington, VT, Tonia M. Ouellette Klausner, Esq., Wilson Sonsini Goodrich & Rosati, P.C., New York, NY, for Defendant.

Opinion and Order

WILLIAM K. SESSIONS III, District Judge.

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”). The 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.

Scribd has moved to dismiss the Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. ECF No. 13. Scribd argues that the Plaintiffs have not alleged facts demonstrating that it owns, leases, or operates a place of public accommodation because the ADA does not apply to website operators whose goods or services are not made available at a physical location open to the public. The Court disagrees. For the reasons discussed below, the Court denies Scribd's motion to dismiss.

I. Factual Background

According to the Complaint, Scribd is a California-based digital library that operates reading subscription services on its website and on apps for mobile phones and tablets. Scribd's customers pay a monthly fee to gain access to its collection of over forty million titles, including e-books, academic papers, legal filings, and other user-uploaded digital documents.

Scribd's digital software program is accessed over the Internet. The Plaintiffs contend that Scribd's website and apps are inaccessible to the blind because they use an exclusively visual interface and lack any non-visual means of operation. Blind persons generally use screen reader software to convert graphical information found on websites and apps into audio or Braille formats, depending on the user's preference. According to the Plaintiffs, because Scribd's website and apps are not programmed to be accessible through such software, Scribd is denying blind persons access to all of the services, privileges, advantages, and accommodations that Scribd offers and is excluding them from accessing information critical to their education, employment, and community integration.

Scribd contends that it does not operate any physical location open to the public, nor does the Complaint include such an allegation.

II. Legal Standard

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) a complaint “must contain sufficient factual matter, accepted as true, 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 Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A court evaluating a motion to dismiss must accept the facts alleged in the complaint as true and draw all reasonable inferences from those facts in favor of the nonmoving party. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). This assumption of truth does not apply to legal conclusions. Davis v. Vermont, Dep't of Corrections, 868 F.Supp.2d 313, 321 (D.Vt.2012)

III. Discussion

To state a claim under Title III, a plaintiff must allege (1) that she is disabled within the meaning of the ADA, (2) that the defendant owns, leases, or operates a place of public accommodation, and (3) that the defendant discriminated against her by denying her a full and equal opportunity to enjoy the services the defendant provides. Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir.2008). Scribd argues that the Plaintiffs have not sufficiently alleged that it owns, leases, or operates a place of public accommodation.

The question at the heart of Scribd's motion is ultimately one of statutory construction. As in all such cases, the Court must first determine whether the language at issue has “ ‘a plain and unambiguous meaning with regard to the particular dispute in the case.’ ” United States v. Am. Soc'y of Composers, Authors, Publishers, 627 F.3d 64, 72 (2d Cir.2010) (quoting Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ). If a court can ascertain the plain meaning of the statutory text by examining the context of the statute as a whole, it need not proceed any further, but if the text's meaning is ambiguous then a court may consult other sources, including the statute's legislative history. Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 108 (2d Cir.2012). When interpreting an ambiguous provision a court focuses on the “broader context and primary purpose of the statute.” Serv. Employees Int'l, Inc. v. Dir., Office of Workers Comp. Program, 595 F.3d 447, 453 (2d Cir.2010) (internal quotation and citation omitted). The Second Circuit has “long held” that where a statute is ambiguous, “it should be interpreted in a way that avoids absurd results.” Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 368 (2d Cir.2006) (internal quotation omitted and citation omitted).

A. The Text of the ADA is Ambiguous

The general rule of Title III states that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182. The statute defines “public accommodation” as follows:

The following entities are considered public accommodations for purposes of this subchapter if the entities affect commerce—

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. § 12181(7).

Scribd argues that the meaning of “place of public accommodation” is clear and unambiguous, but the fact that reasonable jurists have reached different conclusions about how far Title III extends reveals some measure of ambiguity in the text of the statute. There are two main threads in the case law explored below. Briefly, some courts have reasoned that because all of the examples listed in Section 12181(7) are physical places, Title III only applies to discrimination occurring at a physical place or somewhere with a sufficient nexus to a physical place, while others have interpreted the statute more broadly.

On the narrow end, the Ninth, Third, and Sixth Circuits each considered ADA claims brought by an employee who received benefits through his or her employer that were issued by a third party insurance company. All three courts held that Title III did not apply because there was not a sufficient connection between the discrimination the plaintiffs alleged and a physical place. Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.2000) (explaining that “some connection between the good or service complained of and an actual physical place is required”); Ford v. Schering–Plough Corp., 145 F.3d 601, 613 (3d Cir.1998) (holding “public accommodation” and the list of examples in the statute were not ambiguous and did not refer to non-physical access); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1011 (6th Cir.1997) (en banc) (noting that “a public accommodation is a physical place” and a benefit plan offered by an employer is not a good offered by a place of public accommodation).

In a related but somewhat more expansive vein the Eleventh Circuit held that Title III covers both tangible barriers (e.g., physical barriers preventing a disabled person from entering an accommodation's facilities) and intangible barriers (e.g., eligibility requirements or discriminatory policies) to a physical place. Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279, 1283 (11th Cir.2002). The Eleventh Circuit explained that Weyer, Parker, and Ford do not stand for the broad proposition that a place of public accommodation may exclude...