Wu v. Jensen-Lewis Co.
Wu v. Jensen-Lewis Co.
Opinion of the Court
Ramos, D.J.:
This case is a putative class action by a legally blind plaintiff, Kathy Wu, claiming that the website of Jensen-Lewis Co., Inc. and Jensen-Lewis East, Inc. (jointly, "Jensen-Lewis") is not compliant with the Americans with Disabilities Act ("ADA") because it is not fully and equally accessible to Wu and other blind or visually impaired people. Before the Court is Jensen-Lewis's motion to dismiss Wu's complaint for lack of subject matter jurisdiction and for failure to state a claim. For the reasons that follow, the motion is DENIED.
I. BACKGROUND
Wu is a resident of Brooklyn, NY. Compl. ¶ 11. As a blind person, she is considered to be an individual with a disability under the ADA.
*440Jensen-Lewis is a business with its principal executive offices in New York, NY. Compl. ¶¶ 12-13. Jensen-Lewis operates brick-and-mortar retail furniture stores in the Southern District of New York and elsewhere in the United States. Compl. ¶¶ 12-14. Jensen-Lewis also operates a website, www.Jensen-Lewis.com, on which users can find information about store locations, hours of operation, the services provided in its stores, special promotions, return policies, and shipping and delivery policies. Compl. ¶ 22. Wu visited Jensen-Lewis's website multiple times, with the last visit occurring in August 2017, and claims to have encountered multiple access barriers while browsing the website. Compl. ¶ 25. Wu was unable to access information about store location and hours, applicable special promotions, return policies, and shipping and delivery policies.
On August 28, 2017, Wu filed the instant complaint, Doc. 1, alleging that Jensen-Lewis's website posed accessibility barriers in violation of Title III of the ADA,
On February 12, 2018, months after Wu filed her complaint but before Jensen-Lewis filed the instant motion to dismiss, Jensen-Lewis revamped its website. Def.'s Mem. at 4. Jensen-Lewis claims that its new website contains "entirely new code" and new functions, including the ability to electronically process sales.
On March 7, 2018, Jensen-Lewis moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Doc. 19.
II. LEGAL STANDARD
A district court must dismiss a case under Rule 12(b)(1) for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. See Makarova v. United States ,
On a motion to dismiss under Rule 12(b)(6), a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's *441favor. Koch v. Christie's Int'l PLC ,
III. DISCUSSION
A. Subject Matter Jurisdiction
As an initial matter, Jensen-Lewis contends that the Court lacks subject matter jurisdiction over this case because the complaint has been rendered moot by Jensen-Lewis's new website, which went live on February 12, 2018, after the filing of the instant complaint. Def.'s Mem. at 4. This new website, Jensen-Lewis claims, is "fully accessible" and was "developed to be in substantial compliance with the ADA and guidelines of WCAG 2.0."
A court lacks subject matter jurisdiction in a case brought pursuant to Title III of the ADA if the alleged discriminatory conduct is moot because in that event, there is no longer any case or controversy under Article III. See Christian v. New York State Bd. of Law Examiners ,
That Jensen-Lewis has a new website is relevant only if the new website is ADA-compliant. Jensen-Lewis does not convincingly show that its new website is ADA-compliant, consequently, it has not *442shown that the "wrongful behavior" has permanently ceased. Wu's ADA claim is therefore not moot.
Feltenstein v. City of New Rochelle ,
Alternatively, Jensen-Lewis argues that the mere fact it has a website different from the one Wu attempted to access moots her complaint, since she alleges defects with a place of public accommodation, the old website, that no longer exists. But Wu does not allege that Jensen-Lewis's website itself is a place of public accommodation. She instead alleges that Jensen-Lewis's brick-and-mortar stores are public accommodations and that its website is a service, privilege, or advantage of its stores. Compl. ¶ 49; cf. Gil v. Winn Dixie Stores, Inc. ,
B. The Complaint States A Claim Against Jensen-Lewis
Jensen-Lewis argues that, even if subject matter jurisdiction over the ADA claim is present, Wu's ADA claim must be dismissed because she fails to plausibly allege that Jensen-Lewis discriminated against her. The Court finds otherwise.
To state a claim under Title III of the ADA, a plaintiff must allege that (1) she is disabled within the meaning of the ADA; (2) defendants own, lease, or operate a place of public accommodation; and (3) defendants discriminated against her by denying her a full and equal opportunity to enjoy the services defendants provide.
Wu alleges that Jensen-Lewis discriminated against her in violation of the ADA by having features on its website that posed accessibility barriers to the blind, thereby denying her equal access. Though Jensen-Lewis changed its website after Wu filed her complaint, Wu argues that the accessibility barriers she alleged still apply. In her complaint, Wu cites four such barriers. First, Wu alleges that graphical images on Jensen-Lewis's website lack alternative text ("alt-text") or a text equivalent. Compl. ¶ 26a. Alt-text enables screen-reading software to vocalize a description of an image to users. Second, Wu alleges that Jensen-Lewis's website has empty links that contain no text. Compl. ¶ 26b. These empty links' functionality is confusing to screen-reader users. Third, Wu alleges that the website contains redundant, adjacent links. Compl. ¶ 26c. Redundant, adjacent links go to the same URL address, resulting in additional, unnecessary navigation efforts for screen-reader users. Fourth, Wu alleges that linked images on the website lack alt-text. Compl. ¶ 26d. Without alt-text, a user would not know what function a linked image has when he or she clicks on it.
The Court finds that these allegations, taken as true, plausibly show that Jensen-Lewis discriminated against Wu by denying her a full and equal opportunity to use its website. They are specific facts concerning Jensen-Lewis's website. Consequently, Wu has made a plausible claim under Title III of the ADA.
Finally, Jensen-Lewis does not argue that Wu failed to adequately plead any of *444the state law claims. Instead, Jensen-Lewis argues that, because Wu's ADA claim is moot, there remains no federal question for the Court to adjudicate and the Court thus has no supplemental jurisdiction under
IV. CONCLUSION
For the reasons set forth above, Jensen-Lewis's motion to dismiss is DENIED. The parties are directed to appear for an initial pretrial conference on November 8, 2018, at 10:00 AM. The Clerk of the Court is respectfully directed to terminate the motion, Doc. 19.
"WCAG 2.0" refers to version 2.0 of the Web Content Accessibility Guidelines, which were developed by the Accessibility Guidelines Working Group of the World Wide Web Consortium, the main international standards organization for the World Wide Web. See Web Content Accessibility Guidelines (WCAG) 2.0 , W3C (Oct. 22, 2018, 5:46 PM), https://www.w3.org/TR/WCAG20/. WCAG 2.0 prescribes "a wide range of recommendations for making Web content more accessible" to "people with disabilities, including blindness and low vision[.]"
Wu alleges, and Jensen-Lewis does not dispute, that as a blind person she is disabled within the meaning of the ADA and that Jensen-Lewis operates a place of public accommodation.
Additionally, the First and Seventh Circuits have held that Title III applies to businesses that have no physical locations that members of the public can enter, like web-based businesses. See Doe v. Mut. of Omaha Ins. Co. ,
Jensen-Lewis argues that if the Court were to accept Wu's claims as properly pled, it would endorse a "chilling effect" on protected commercial speech by allowing any plaintiff to sue a website owner using boilerplate allegations. Def.'s Mem. at 14. But as the Court has described in this opinion, Wu offers more than just boiler-plate allegations in her complaint.
In addition to Wu's complaint, the Court reviewed Jensen-Lewis's website for the limited purpose of determining whether Wu's claim is plausible. The Court is permitted to do so because the website is incorporated by reference in Wu's complaint and is thus cognizable on a motion to dismiss, see Atl. Recording Corp. v. Project Playlist, Inc. ,
Acknowledging that its judgment is no substitute for that of an expert's, the Court finds that its review of the website is inconclusive as to whether Wu's allegations are plausible. The Court found that images and image links consistently contained alt-text and did not identify any redundant links. The Court could neither verify nor contradict Wu's allegations that Jensen-Lewis's website contained empty links. Because the results of the Court's review are not "clearly inconsistent" with Wu's allegations, the Court instead bases its conclusion, as stated above, on the fact that Wu plausibly pled a Title III violation.
Reference
- Full Case Name
- Kathy WU, on Behalf of Herself and All Other Persons Similarly Situated v. JENSEN-LEWIS CO., INC. and Jensen-Lewis East, Inc.
- Cited By
- 19 cases
- Status
- Published