O'Hanlon v. Uber Techs., Inc., Civil Action No. 2:19-cv-00675

PAUL O'HANLON, an individual, JONATHAN ROBISON,an individual, GAYLE LEWANDOWSKI, an individual, IRMA ALLEN,an individual, on behalf of themselves and all others similarly situated,and PITTSBURGHERS FOR PUBLIC TRANSIT,a project of THOMAS MERTON CENTER, INC.,a Pennsylvania non-profit corporation,on behalf of themselves and all Individuals similarly situated, 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

June 14, 2021

Magistrate Judge Lisa Pupo Lenihan

ECF No. 45

MEMORANDUM OPINION ON DEFENDANTS' MOTION TO DISMISS

I. SUMMATION

For the reasons set forth below, the December 19, 2019 Motion to Dismiss filed by Defendants Uber Technologies, Inc.; Rasier, LLC; and Rasier-CA, LLC (collectively "Uber"), ECF No. 45, will be denied.

II. FACTUAL AND PROCEDURAL HISTORY

As set forth in this Court's prior Memorandum Opinion, ECF No. 39:

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;¹ Defendants are Delaware corporations. Uber provides a ridesharing service which allows mobile smartphone application ("Uber 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.² 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 to disabled individuals requiring WAVs in Allegheny County, Pennsylvania.³

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 1-2.

Defendants filed a Motion to Compel Arbitration, ECF No. 24, on August 23, 2019, which was denied by this Court's Memorandum Opinion and Order, ECF Nos. 39 and 40, respectively, on November 12, 2019. In so holding, the Court expressly rejected Defendants' assertions that Plaintiffs were bound to the arbitration provisions of Uber's Terms of Use and/or equitably estopped from refusing to arbitrate⁴ because (1) theirclaims necessarily "implicate" Uber's Terms of Use and/or (2) their Article III standing to sue as deterrence-injury plaintiffs requires them to "stand in the shoes" of "actual Uber Rider App users who all are bound by Uber's Terms of Use." See generally ECF No. 39 ("Defendants' liability, if any, arises from their conduct as measured against the provisions of Federal law. The sine qua non is the ADA.");⁵ id. ("To be clear, then, an individual's standing to bring a claim for disability discrimination under the ADA is not dependent on his/her undertaking futile gestures. To the contrary, such plaintiffs have their own standing; their deterrence-based injury is actual, cognizable and their own.") (citing 42 U.S.C. § 12188(a)(1)'s statement that ADA protections include any person "who has reasonable grounds for believing" s/he will be subjected to discrimination).⁶

The case was then administratively stayed pending Defendants' interlocutory appeal to the Third Circuit Court of Appeals. The Court of Appeals having affirmed this Court's arbitrability decision⁷, the case was reopened in April, 2021. Now before the Court and ripe for review is Defendants' Motion to Dismiss, ECF No. 45. Plaintiffs' Response in Opposition was filed at ECF No. 50, and Defendants' Reply in Further Support at ECF No. 51.

III. APPLICABLE STANDARD - RULE 12(b)(6)

The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).

Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). In addition, "[w]hen reviewing a motion to dismiss, we construe the complaint in the light most favorable to the plaintiff. . . . . [W]here there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citations and internal quotation marks omitted).⁸

IV. ANALYSIS

Defendants raise the following grounds for dismissal: (A) Plaintiffs "lack a private right of action" under the ADA because the individual Plaintiffs "allege, at most, that [individual Plaintiffs] are 'about to be' subjected to discrimination, but not any violation of Section 12183"; (B) Plaintiffs fail to state a claim under Section 12182 as Uber does not operate a "place of public accommodation"; (C) Plaintiffs fail to state a claim under Section 12184, as it does not require covered entities to provide WAVservice; and (D) the PPT lacks organizational or associational standings. See generally, Defendants' Brief in Support, ECF No. 46.⁹

A. Individual Plaintiffs' Deterrence Injury Provides ADA Title III Standing

Having been set right once in their challenge to Plaintiffs' standing to bring this action, Defendants present an inventive but misguided alternative attack. This Court, like others, has rejected Defendants' assertion that plaintiffs who have not downloaded their Uber App - and thus become bound to Uber's arbitration provisions and barred from Federal court - lack Article III standing because they have not been injured. See supra. Defendants now assert that even if, as this Court concluded, Plaintiff's deterrence injury is sufficient to standing under Article III, it is insufficient to Plaintiff's standing under the ADA itself because they "have avoided being subjected to the alleged discrimination". ECF No. 46; ECF No. 51 at 2. Rather, Defendants would have it, deterrence injury may suffice only as to "statutory standing" to bring an anticipatory construction-based claim under Section 12183, which applies to "new construction or alterations". See ECF No. 46 at 8-11; ECF No. 51 at 2. Defendants continue to fundamentally err in their understanding of the legal concept/import of deterrence-based injury under the ADA (and perhaps more broadly).¹⁰

As explicated in this Court's prior Memorandum Opinion, ECF No. 39, Plaintiffs have Article III standing - the only standing previously challenged - through their deterrence-based injury, which is actual, cognizable and their own. See supra at 4 & n. 6; ECF No. 39 at 8-12; ECF No. 50 at 3-5. In other words, Plaintiffs are not "about to be injured"; as this Court and others have repeatedly held, they are injured. As also reflected in the Court's prior Memorandum Opinion - and as a necessary component in similar litigations proceeding against Uber or another ridesharing transportation entity in other Federal courts¹¹ - Plaintiffs are properly positioned to "assert claims against Uber based on rights created by the ADA" and their exclusion - "by Defendants' disability discrimination - from participation in . . . available public transportation." ECF No. 39 at 6-7 (emphasis added); id., generally. Cf. ECF No. 46 at 8 ("[B]y its plain language, § 12188 provides a broad right of action to private persons who are being subject to discrimination . . . ."). In other words, Plaintiffs also have Title III standing to bring claims, as other plaintiffs have done in other actions nationwide, under Sections12182 and/or 12184.¹² Provisions of the ADA extending further protection from...