O'Hanlon v. Uber Techs., Inc.

PAUL O'HANLON, an individual, JONATHAN ROBISON, an individual,GAYLE LEWANDOWSKI, an individual, IRMA ALLEN, an individual, on behalf ofthemselves and all others similarly situated, and PITTSBURGHERS FOR PUBLIC TRANSIT, Plaintiffs, v. UBER TECHNOLOGIES, INC., RASIER, LLC, and RASIER-CA, LLC, Defendants.

Civil Action No. 2:19-cv-00675

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

November 12, 2019

Magistrate Judge Lisa Pupo Lenihan

ECF No. 24

MEMORANDUM OPINION ON DEFENDANTS' MOTION TO COMPEL ARBITRATION

I. SUMMATION

For the reasons set forth below, the August 23, 2019 Motion to Compel Arbitration filed by Defendants Uber Technologies, Inc.; Rasier, LLC; and Rasier-CA, LLC (collectively "Uber"), ECF No. 24, will be denied.

II. FACTUAL AND PROCEDURAL HISTORY

The above-named Plaintiffs (collectively "Plaintiffs") filed a June 11, 2019 Complaint, ECF No. 1, followed by a July 12, 2019 First Amended Complaint, ECF No. 10, seeking class certification and injunctive and declaratory relief. Plaintiffs are Pennsylvania residents and a non-profit corporation headquartered in Pittsburgh, Pennsylvania; Defendants are Delaware corporations. Uber provides a ridesharing service which allows mobile smartphone application ("App") users to call an available vehicle driver when they need transportation.

Plaintiffs - like other plaintiffs in similar actions filed in Federal District Courts against Uber or Lyft, Inc., another ridesharing transportation company - allege that Defendants are in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., (the "ADA"). Plaintiffs allege Defendants' violation of both (1) Section 12182's prohibitions of disability discrimination with regard to places of public accommodation and (2) Section 12184's prohibitions with regard to public transportation services provided by private entities.¹ More specifically, Plaintiffs allege that individuals such as themselves, who rely on wheelchairs for mobility and thus also wheelchair accessible vehicles ("WAVs") for transportation, are injured by Defendants' failure to provide any access to its on-demand ridesharing transportation service todisabled individuals requiring WAVs in Allegheny County, Pennsylvania. ECF No. 10; Plaintiffs' Response in Opposition, ECF No. 35 at 1.

Plaintiffs' allegations include that:

Because the geographic area serviced by accessible public transportation in Pittsburgh is contracting, at the same time that Uber and similar ride sharing services are capturing market share from traditional taxi companies, Uber's discriminatory practices have a profound negative impact upon individuals with mobility disabilities in Pittsburgh . . .

. . . Uber has the ability to provide accessible service without significant disruption to its business model. Uber tightly controls all aspects of how both its drivers and riders use the service, mediating all payments, regulating the types of vehicles the drivers use, and offering financial incentives to ensure that there are enough drivers on the road to meet the demand for rides. Moreover, Uber is already providing widespread wheelchair accessible transportation in London and six other cities around the United Kingdom.

ECF No. 10 at 2.

Plaintiffs further allege that each individual Plaintiff (1) would use Uber but for the unavailability of WAVs and (2) has not downloaded Uber's application because s/he knows that doing so would be futile while WAVs are unavailable through Uber in Pittsburgh.²

Customers signing up for Uber's services must download and create an account using the Uber Rider App ("Uber App"). The terms and conditions required to be accepted to use the Uber App ("Terms of Use") include an arbitration provision.Defendants do not dispute that no named Plaintiff has created an account or entered into a service agreement with Uber.

Defendants filed their Motion to Compel Arbitration and Memorandum of Points and Authorities ("Brief in Support"), ECF No. 24 and 25 respectively, on August 23, 2019; Plaintiffs filed their Repose in Opposition, ECF No. 35, on September 30^th; and Defendants filed their Reply in Further Support, ECF No. 38, on October 15th.

III. ANALYSIS

Uber's service agreement is a contract subject to the Federal Arbitration Act, 9 U.S.C. § 2 (the "FAA") and the District Court must compel a signatory party to a valid arbitration agreement to abide by those terms as to any dispute. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). Conversely, parties who have not assented to an arbitration agreement generally cannot be compelled to arbitrate. E.E.O.C. v. Waffle House, 534 U.S. 279, 293 (1989); Bel-Ray Co., Inc. v. Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999) ("Arbitration is strictly a matter of contract. If a party has not agreed to arbitrate, the courts have no authority to mandate [arbitration].") Plaintiffs, having "never downloaded the Uber App . . . lacked notice of Uber's terms and conditions, including its embedded arbitration provision, and never manifested their intention to be bound." Namisnak v. Uber Technologies, Inc., 315 F.Supp.3d 1124, 1127 (N.D. Cal. 2018).

Uber's Brief in Support, ECF No. 25, contends that "this is not an appropriate forum", asserting that Plaintiffs are equitably estopped from refusing to arbitrate³ because (1) their claims necessarily "implicate" Uber's Terms of Use and (2) their standing to sue as deterrence-injury plaintiffs is based on allegations that they would have contracted with Uber but for its discriminatory policies, thus again necessarily incorporating Uber's arbitration conditions. In sum, Defendants argue that Plaintiffs are barred from Federal forum selection and this litigation because they cannot maintain an action apart from Uber's requisite Terms of Use, i.e., that their claims cannot "exist[] independent of the contract." ECF No. 38 at 1, 3.

First, Defendants contend - as they did last year, before Judge Seeborg in the Northern District of California - that Plaintiffs who have not entered into a service contract with Uber and raise claims under the ADA are nonetheless equitably estopped from bringing such claims in Federal Court by the arbitration provisions of Uber's service contract because they must rely on the contract terms by which Uber offers goods and services to the general public to bring their action. See, e.g., ECF No. 38 at 2 ("Plaintiffs are bound by the arbitration agreement in Uber's Terms of Use based on settled principles of equitable estoppel. Plaintiffs embrace the Terms of Use . . . as a fundamental component of their claim on the merits.");⁴ id. at 4-5. This Court is inentire accord with Judge Seeborg's dismissal of this assertion. Namisnak, 315 F.Supp.3d 1124.⁵

In Namisnak, as here, Uber argues that Plaintiffs necessarily rely on Uber's service contract to bring suit and should therefore be estopped from avoiding its obligations. Id. at 1128. As Judge Seeborg explained, however, Plaintiffs "assert claims against Uberbased on rights created by the ADA, which are not dependent upon or bound up in the terms and obligations of Uber's service agreement. It is Uber's alleged refusal to comply with the requirements of the ADA, not the requirements of its consumer agreements, which form the basis of this lawsuit." Id. The essence of Plaintiffs' Complaint is that they have been excluded - by Defendants' disability discrimination - from participation in Defendants' increasing market share of available public transportation. Defendants reply that they could not be charged with illegal discrimination if they were not offering goods or services and thus their contract provisions apply.

Defendants elected to offer goods and/or services and in doing so were required to comply with any applicable Federal regulations, including the ADA; thus they can be charged with violation of Federal disability laws. Defendants' liability, if any, arises from their conduct as measured against the provisions of Federal law. The sine qua non is the ADA.⁶ As Plaintiffs argue, their claims are "based on Uber's failure to comply in its business practices with anti-discrimination law . . . ." ECF No. 35 at 2.

Second, Defendants contend that Plaintiffs necessarily "embrace" Uber's Terms of Use "for their benefit . . . in pursuit of Article III standing." ECF No. 38 at 1; ECF No. 25 at 5. More specifically, Defendants contend that Plaintiffs embrace the contract by asserting a deterrent-effect injury and thus seeking "essentially to step into the shoes" of"actual Uber Rider App users who all are bound by Uber's Terms of Use." ECF No. 38 at 2-3.

Plaintiffs' Article III standing is established by (1) injury in fact, (2) causal connection, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-61 (1992). As to the element here at issue, injury in fact, Plaintiffs correctly quote the ADA's provision that its protections include any person "who has reasonable grounds for believing" s/he will be subjected to discrimination. 42 U.S.C. § 12188(a)(1). See ECF No. 35 at 3.⁷ Also relevant is the Supreme Court's 1977 conclusion - in its lengthy Opinion on race discrimination in employment - that one "can be a victim of unlawful discrimination entitled to make-whole relief" despite being unwilling "to engage in a futile gesture" or "useless act", or "subject [oneself] to the humiliation of explicit and certain rejection." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 366-67 (1977).

Indeed, as the Ninth Circuit has noted, the ADA's provision that "it does not require 'a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to comply' with the ADA" is "taken from Teamsters", which "held that plaintiffs who did not actually apply . . . could nevertheless challenge" discrimination "if they could show that they would haveapplied . . . if not for [such] discriminatory...