Access Living of Metro. Chi. v. Uber Techs., Inc.

351 F.Supp.3d 1141

ACCESS LIVING OF METROPOLITAN CHICAGO, et al., Plaintiffs,

v.UBER TECHNOLOGIES, INC. and Rasier, LLC, Defendants.

No. 16 CV 9690

United States District Court, N.D. Illinois, Eastern Division.

Signed December 17, 2018

Steven P. Blonder, Daniel Adam Hantman, Jonathan L. Loew, Much Shelist, P.C., Charles Robert Petrof, Chicago, IL, for Plaintiff.

James J. Oh, Littler Mendelson, P.C., Chicago, IL, Anne Marie Estevez, Pro Hac Vice, Morgan Lewis & Bockius LLP, Miami, FL, Clara Kollm, Patrick A. Harvey, Stephanie Schuster, Morgan, Lewis & Bockius Llp, Washington, DC, Kristal Dora Petrovich, Morgan, Lewis & Bockius Llp, Todd M. Church, Littler Mendelson, P.C., Chicago Il, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Manish S. Shah, United States District JudgePlaintiffs are people with disabilities who use motorized wheelchairs and Access Living of Metropolitan Chicago, a non-profit organization that advocates for people with disabilities. They claim Uber is violating the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. , by not providing people who use motorized wheelchairs with access to its services that is equal to the access it provides to people who do not. Uber moves to dismiss the complaint based on a lack of standing or, in the alternative, for judgment on the pleadings.

I. Legal Standards

Uber moves to dismiss the complaint under Rule 12(b)(1) for a lack of subject-matter jurisdiction.¹ Plaintiffs bear the burden of establishing the court's jurisdiction. Ctr. for Dermatology & Skin Cancer, Ltd. v. Burwell , 770 F.3d 586, 589 (7th Cir. 2014). To survive Uber's facial challenge to jurisdiction, the complaint must plausibly allege standing. See Silha v. ACT, Inc. , 807 F.3d 169, 173–74 (7th Cir. 2015). Uber's motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a Rule 12(b)(6) motion to dismiss, meaning that it must be granted "only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Hayes v. City of Chicago , 670 F.3d 810, 813 (7th Cir. 2012) (citation omitted). In resolving both motions, I consider only the pleadings, documents incorporated by reference in the pleadings, and matters subject to judicial notice, accepting the well-pleaded facts as true and drawing all reasonable inferences in plaintiffs' favor. Milwaukee Police Ass'n v. Flynn , 863 F.3d 636, 640 (7th Cir. 2017) ; Silha , 807 F.3d at 173.²

II. Facts

Uber operates a rideshare app that allows users to request transportation and then connects them with a vehicle and a driver. [1] ¶ 5.³ Uber's services are available to people who download the app on their smartphones and open an account with a credit card. [1] ¶ 21. Uber users can request specific kinds of rides, including some that vary in the type of vehicle that arrives. [1] ¶¶ 21–23. UberWAV is one of these special requests, which allows users to request a wheelchair-accessible vehicle. [1] ¶ 21.

Uber does not own the vehicles used for its rides, but it controls all aspects of the rides. [1] ¶¶ 5, 24.⁴ Uber sets requirements for the type and age of vehicles, conducts mandatory vehicle inspections, and helps drivers arrange leases for Uber-approved vehicles. [1] ¶¶ 25, 28. Uber regulates its drivers by conducting background checks and setting requirements for drivers' age, experience, licensing, and driving records. [1] ¶ 26. Uber instructs the drivers on the expected quality of the rides— issuing community guidelines, making recommendations about the amenities to stock in the vehicles and the radio station choice, and imposing cleanliness requirements. [1] ¶ 28. Uber can deactivate drivers who break its rules. [1] ¶¶ 27–28. Uber drivers and passengers do not negotiate the ride's fare; instead, Uber sets the cost of the trip using a certain formula. [1] ¶ 24.

Access Living of Metropolitan Chicago is a non-profit organization that advocates for people with disabilities, seeking to advance their civil rights and help them live more independently. [1] ¶ 9. It offers independent living services, public education programs, and individualized and systemic advocacy, and it enforces civil rights on behalf of those with disabilities. [1] ¶ 9. Fourteen percent of Access Living's employees and 20 percent of its board members either use a motorized wheelchair or cannot transfer to a standard vehicle from their manual wheelchairs. [1] ¶ 10. Motorized wheelchairs are heavy and cannot fit into the trunk of a car, so they require ramps and lifts to be put inside vehicles. [1] ¶ 8. Uber is "virtually unavailable" to people who use motorized wheelchairs—it provided them just 14 rides from September 2011 to August 2015. [1] ¶¶ 29, 56. The lack of accessible Uber rides requires Access Living to incur increased costs to transport its staff and board members who require accessible rides. [1] ¶ 59. In August 2016, Access Living took this issue to Uber. [1] ¶ 58. Access Living showed Uber the app, which at the time had no available accessible vehicles, and asked it to provide motorized-wheelchair users with services equivalent to those it offers others. [1] ¶ 58. Uber responded that it had no intention of providing equivalent response times. [1] ¶ 58.

Michelle Garcia, Justin Cooper, and Rahnee Patrick are all Chicago residents who work or volunteer at Access Living, and they all have disabilities that require use of a motorized wheelchair. [1] ¶¶ 14–16, 32–33, 38–39, 45. Patrick can usually transfer from her wheelchair to a standard vehicle, but her husband, who also uses a motorized wheelchair, cannot. [1] ¶ 39. Garcia, Cooper, and Patrick want to use Uber (Patrick with her husband), and they have the smartphones and credit cards they need to do it. [1] ¶¶ 34, 44, 49. But none of them have downloaded the Uber app, because they believe that Uber does not provide equivalent services to people who use motorized wheelchairs. [1] ¶¶ 37, 44, 49. They each found out about the lack of accessible services in different ways.

Garcia heard from other motorized-wheelchair users at Access Living that they cannot use Uber because it does not have accessible vehicles, and Access Living colleagues showed Garcia the Uber app in September 2016, which at the time had just one accessible vehicle available in Chicago. [1] ¶¶ 35–36. Cooper once wanted to take an Uber ride to the mall, but he believed he could not because he had heard that Uber does not offer equivalent services to motorized-wheelchair users. [1] ¶ 46. He believed that because he knew about an unsuccessful effort to pass an ordinance requiring equivalent service and that Uber was lobbying to be free of such a requirement. [1] ¶ 47. In October 2016, Cooper saw the Uber app on someone else's phone, and the app showed no available accessible vehicles. [1] ¶ 48. Patrick's husband downloaded Uber to take advantage of a promotion Uber offered for a theater event, but he did not complete registration because his colleagues from the theater told him that Uber does not accommodate motorized-wheelchair users. [1] ¶ 40–42. In October 2016, Patrick's husband saw a screenshot of the Uber app, showing that there were no available accessible vehicles. [1] ¶ 43.

Plaintiffs allege violations of the ADA and request declaratory and injunctive relief against Uber and its subsidiary.

III. Standing

Uber argues that none of the plaintiffs have standing to bring this suit. The constitution limits federal-court jurisdiction to controversies brought by plaintiffs who "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016).

A. Injury-in-Fact

1. Individual Plaintiffs

Plaintiffs must allege an injury in fact that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Because they seek prospective injunctive relief, plaintiffs must allege a "real and immediate" threat of future ADA violations. Scherr v. Marriott Int'l, Inc. , 703 F.3d 1069, 1074 (7th Cir. 2013). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief...if unaccompanied by any continuing, present adverse effects." Lujan v. Defs. of Wildlife , 504 U.S. 555, 564, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted). So on top of a past injury, a plaintiff must also allege that the discrimination will continue and injure her in the future. Scherr , 703 F.3d at 1074. This threat of future injury can be shown by an intent to return to or use the public accommodation, id. , but it can also be shown by establishing that the plaintiff is reasonably deterred from the accommodation because of the discrimination. See Chapman v. Pier 1 Imports (U.S.) Inc. , 631 F.3d 939, 949 (9th Cir. 2011) (en banc); Scherr v. Marriot Int'l, Inc. , 833 F.Supp.2d 945, 951 (N.D. Ill. 2011), aff'd , 703 F.3d 1069 (7th Cir. 2013). That is because if a plaintiff alleges that she is presently deterred and that the discrimination will continue, the threat of future discrimination is both real and immediate.

The individual plaintiffs want to use the Uber app but are deterred from doing so because Uber does not provide them with equal access to its services, in violation of the ADA. See [1] ¶¶ 11, 84. Deterrence can be an injury in fact. See Pickern v. Holiday Quality Foods Inc. , 293 F.3d 1133, 1137–38 (9th Cir. 2002) ("We hold that in stating that he is currently deterred from attempting to gain access to the Paradise store, Doran has stated sufficient facts to show concrete, particularized injury."). See also Laidlaw , 528 U.S. at 181–85, 120 S.Ct. 693 (finding allegations that defendant's pollution deterred plaintiffs from...