Davis v. Wild Friends Foods, Inc.

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KEVIN DAVIS, Plaintiff, v. WILD FRIENDS FOODS, INC., Defendant.

No. 22-cv-04244 (LJL)

United States District Court, S.D. New York

July 5, 2023

OPINION AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Defendant Wild Friend Foods Inc. (“Defendant”) moves pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), to dismiss the complaint filed by plaintiff Kevin Davis (“Plaintiff”) for lack of subject matter jurisdiction and for failure to state a claim for relief. Dkt. No. 16.

For the following reasons, the motion to dismiss is denied.

BACKGROUND

The following facts are drawn from the Plaintiff's first amended complaint (“FAC”) and accepted as true for purposes of these motions. Dkt. No. 15.

Plaintiff is a visually impaired and legally blind person, who uses screen-reading software. Id. ¶¶ 1, 14. Defendant is an online retail company that owns and operates the website www.Wildfriendsfoods.com (the “Website”). Id. ¶¶ 2, 22. Defendant sells various healthful snack spreads, such as peanut butter, almond butter, and hazelnut spread including organic honey sunflower butter. Id. The Website is particularly appealing to consumers as it partners with nonprofit organizations, which advance the rights of young women in the Pacific Northwest, donating one percent of the profits from sales to these organizations. Id. ¶ 2. Defendant also appeals to customers by advertising the ingredients of its snack spreads as ethically sourced and environmentally friendly. Id.

Plaintiff is interested in buying the honey sunflower butter on Defendant's Website. Id. ¶ 3. Plaintiff enjoys honeyed butter, is generally interested in organic foods as part of his diet, and was interested in trying a new brand to enjoy a healthy and tasty new food. Id. The honey sunflower butter is marketed as allergen friendly and a healthier eating option and does not contain excess sugar or palm oil in its recipe. Id.

Plaintiff visited the Website on April 16, 2022, May 6, 2022, May 8 2022, June 1, 2022, and August 15, 2022. Id. ¶¶ 2, 3, 24. Plaintiff alleges that Defendant's website is difficult to use for visually impaired people id. ¶ 4, and he “remains unable to, but strongly desires and intends to purchase the Organic Honey Sunflower Butter from Defendant's website as soon as the barriers that impede his ability to do so are removed,” id. ¶ 5. Plaintiff specifies that “[t]he screen reader fails to access the ‘search' function on the website,” delaying Plaintiff's ability to navigate the website and impeding his ability to make an informed decision as to products to purchase as a sighted New York customer would. Id. ¶ 4. The Website also “fails to indicate the current focus on a given webpage, which disorients Plaintiff as to what information is available on a given page.” Id. This also delays Plaintiff's ability to navigate the Website as a sighted New York customer would. Id.

Plaintiff alleges that Defendant has violated “Section 302(a) of Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 etseq.” Id. ¶¶ 38-46. Plaintiff also alleges that Defendant has violated “N.Y.C. Administrative Code § 8-107(4)(a) and § 8-107(15)(a) in that Defendant has constructed and maintained a website with accessibility barriers and failed to take action to fix the access barriers.” Id. ¶ 52.

Plaintiff seeks monetary damages and a preliminary and permanent injunction, among other relief. Id. at ECF p. 14.

PROCEDURAL HISTORY

Plaintiff initiated this action through filing a complaint on May 24, 2022. Dkt. No. 1. Plaintiff filed the FAC on August 18, 2022. Dkt. No. 15.

Defendant moved to dismiss the FAC on September 23, 2022 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. No. 17. On October 7, 2022, Plaintiff filed a memorandum in opposition to the motion to dismiss along with supporting papers. Dkt. Nos. 18-19. On October 14, 2022, Defendant filed a reply memorandum in further support of the motion. Dkt. No. 20. Plaintiff filed letters of supplemental authority on December 1, 2022, Dkt. No. 22, and on December 8, 2022, Dkt. No. 23. On May 9, 2023, Defendant filed a notice of supplemental authority. Dkt. No. 24.

LEGAL STANDARD

Defendant moves to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). A court properly dismisses a claim for lack of subject matter jurisdiction under Rule 12(b)(1) when it “lacks the statutory or constitutional power to adjudicate it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416-17 (2d Cir. 2015). To survive a 12(b)(1) motion to dismiss for lack of standing, a plaintiff “must allege facts that affirmatively and plausibly suggest that it has standing to sue.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011). “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A motion to dismiss for lack of subject matter jurisdiction may ‘raise a facial challenge based on the pleadings, or a factual challenge based on extrinsic evidence.'” U.S. Airlines Pilots Ass'n ex rel. Cleary v. U.S. Airways, Inc., 859 F.Supp.2d 283, 296 (E.D.N.Y. 2012) (quoting Guadagno v. Wallack Ader Levithan Assocs., 932 F.Supp. 94, 95 (S.D.N.Y. 1996)). Where the defendant challenges the legal sufficiency of a complaint's allegations, the court must treat all factual allegations as true and draw reasonable inferences in favor of the complaining party. Robinson v. Gov't of Malay., 269 F.3d 133, 140 (2d Cir. 2001). However, where the jurisdictional challenge is fact-based, the defendant may “proffer[ ] evidence beyond the [p]leading,” and the plaintiff “will need to come forward with evidence of their own to controvert that presented by the defendant ‘if the affidavits submitted on a 12(b) motion . . . reveal the existence of factual problems' in the assertion of jurisdiction.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (quoting Exch. Nat'l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131 (2d Cir. 1976)). In that case, “no presumptive truthfulness attaches to the complaint's jurisdictional allegations,” and “the burden is on the plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts.” Guadagno, 932 F.Supp. at 95.

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must include “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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). A complaint must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement” in order to survive dismissal. Twombly, 550 U.S. at 555, 557. The ultimate question is whether “[a] claim has facial plausibility, [i.e.,] the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Put another way, the plausibility requirement “calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [supporting the claim].” Twombly, 550 U.S. at 556; see also Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 46 (2011).

DISCUSSION

“When a defendant moves to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, and also moves to dismiss on other grounds, the Court must consider the Rule 12(b)(1) motion first.” Reliability Inc. v. Doki, 2021 WL 3408589, at *6 (S.D.N.Y. Aug. 4, 2021) (quoting Almazon v. JPMorgan Chase Bank, Nat'l Ass'n 2020 WL 1151313, at *6 (S.D.N.Y. Mar. 9, 2020)).

The Court thus first addresses the motion to dismiss under Rule 12(b)(1). Concluding that the Plaintiff has standing, the Court turns to the motion to dismiss under Rule 12(b)(6).

I. Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1)

“Under Article III of the Constitution, the jurisdiction of federal courts is limited to the resolution of ‘cases' and ‘controversies.'” Amidax, 671 F.3d at 145. “In order to ensure that this ‘bedrock' case-or-controversy requirement is met, courts require that plaintiffs establish their ‘standing' as the ‘proper part[ies] to bring' suit.” W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (alteration in original) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). This is “the threshold question in every federal case, determining the power of the court to entertain the suit.” Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006).

“For a plaintiff to have Article III standing, he must establish three things: (1) that he has an injury in fact; (2) that there is a causal connection between his injury and the conduct complained of; and (3) that his injury will be redressed by a favorable judicial decision.” Harty v. W. Point Realty, Inc., 28 F.4th 435, 442 (2d Cir. 2022). “Moreover, a plaintiff seeking injunctive relief cannot rely only on past injury to satisfy the injury requirement but must show a likelihood of future harm.” Harty v. Simon Prop. Grp., L.P., 428 Fed.Appx. 69, 71 (2d Cir. 2011). Therefore, in an ADA suit seeking injunctive relief based on lack of adequate access to a public accommodation, “[the Second Circuit has] previously found standing . . . where (1) the plaintiff...