Panarra v. HTC Corp.

598 F.Supp.3d 73

Dylan PANARRA, Plaintiff,

v.HTC CORPORATION; HTC America, Inc.; and HTC America Content Services, Inc., Defendants.

Case # 6:20-CV-6991-FPG

United States District Court, W.D. New York.

Signed April 15, 2022

Andrew Rozynski, Eisenberg & Baum, LLP, New York, NY, for Plaintiff.

Matthew J. Moffa, Perkins Coie LLP, New York, NY, Amanda J. Beane, Perkins Coie, LLP, Seattle, WA, Timothy Patrick Lyster, William G. Bauer, Woods Oviatt Gilman LLP, Rochester, NY, for Defendants HTC Corporation, HTC America, Inc.

Amanda J. Beane, Perkins Coie, LLP, Seattle, WA, for Defendant HTC Content Services, Inc.

DECISION AND ORDER

FRANK P. GERACI, JR., United States District Judge

INTRODUCTION

Plaintiff Dylan Panarra ("Plaintiff"), who is profoundly deaf, claims that Defendants HTC Corporation and its subsidiaries HTC America, Inc., and HTC American Content Services, Inc. (collectively, "Defendants") are violating the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 121821 et seq. , as well as New York State law, by not offering captioning on the Virtual Reality ("VR") programming and content housed on their subscription service called "Viveport Infinity." ECF No. 39 at 1-2.

Defendants have moved to dismiss the operative compliant, Plaintiff's First Amended Complaint (the "FAC"), ECF No. 39, pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 40. Defendants argue that Plaintiff has failed to state a claim because he has not plausibly alleged (1) that the ADA applies to Viveport Infinity as a place of "public accommodation" within the meaning of the statute; (2) that the ADA requires Viveport Infinity to alter its content; and (3) that the Defendants are sufficiently in control of the VR content to provide captioning. See generally ECF No. 41. Plaintiff responded in opposition to Defendants’ motion, ECF No. 46, and Defendants replied. ECF No. 47.

For the reasons set forth below, Defendants’ motion to dismiss is DENIED.

FACTUAL BACKGROUND

When courts evaluate motions to dismiss, they must accept the facts alleged in the complaint as true and draw all reasonable inferences from those facts in favor of the non-moving party. Nat'l Fed. of the Blind v. Scribd Inc. , 97 F. Supp. 3d 565, 567 (D. Vt. 2015). Therefore, for the purposes of evaluating Defendants’ motions, the facts below are taken from Plaintiff's FAC and are accepted as true.

Plaintiff is profoundly deaf and his hearing and speaking abilities are limited. ECF No. 39 ¶ 6. He is a "big fan" of video games and has played them "all his life." Id. ¶ 20. Plaintiff owns a device called an Oculus Rift which is a VR headset he uses to play VR video games and experience VR content.¹ Id. ¶ 21.

Defendants "are one of the biggest electronics companies in the world" and they "operate an online VR subscription service called Viveport Infinity." Id. ¶ 14. Viveport Infinity is "the Netflix of VR" and offers "unlimited access to ... thousands of VR content, including games, videos, and other apps and programs." Id. ¶¶ 14-15. Like Netflix, subscribers can access Viveport Inifinity's content from the comfort of their own homes. ECF No. 39 ¶ 19.

In addition to access to "more than $10,000 worth of critically acclaimed titles," Viveport Infinity subscribers get "exclusive offers." Id. ¶ 15. Currently, Viveport Infinity is the only subscription-based platform offering VR content. Id. ¶ 16.

Plaintiff's Oculus Rift headset is compatible with Viveport Infinity. Id. ¶ 21. He would like to subscribe to Viveport Infinity and use its content but has not done so "because Defendants have failed to provide closed captioning on its VR content." Id. ¶¶ 35-36. Closed captioning "is a system that displays text on video content," and, as such, it allows "deaf and hard of hearing individuals [to] have the opportunity to enjoy movies or videos by reading the captioned text." ECF No. ¶ 17. Since Plaintiff is deaf, he "requires closed captions to meaningfully access and understand any video content that has audio portions." Id. ¶ 20.

While some of Viveport Infinity's content does offer closed captioning, many titles in its catalog do not—unlike Netflix which "provides closed captions or subtitles for all its content." Id. ¶ 18. Viveport Infinity's failure to provide closed captioning renders much of its content inaccessible to Plaintiff and "other deaf and hard of hearing individuals." Id. ¶¶ 20, 23. Without closed captions, Plaintiff cannot "understand and follow the audio portions of various VR content" and he therefore "cannot fully and equally enjoy [Viveport Infinity's] services." Id. ¶ 24. This "increas[es] the sense of isolation and stigma" felt by Plaintiff and others like him as they "cannot enjoy VR and video games and cannot share the experience with their families or friends." ECF No. 39 ¶ 31. Furthermore, it prevents Plaintiff from participating in the "latest ... trends and issues" in the VR game-playing community. Id. ¶ 33. This causes Plaintiff "frustration, anxiety, humiliation, loss of enjoyment, and anger." Id. ¶ 34.

Plaintiff filed the FAC on September 17, 2021, bringing three claims against Defendants:

1. Violations of Title III of the ADA, 42 U.S.C. § 12181, et seq. ;

2. Violations of the New York State Human Rights Law ("NYSHRL"), Article 15 of the New York Executive Law § 290, et seq. ; and

3. Violations of the New York Civil Rights Law ("NYCRL"), Article 4, § 40 et seq.

Id. at 7-12.

Plaintiff seeks declaratory relief, injunctive relief, compensatory damages, statutory damages, nominal damages, and reasonable costs and attorneys’ fees. Id. at 12-14.

LEGAL STANDARD

Pursuant to Rule 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, a court "must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor." In re Express Scripts Holding Co. Secs. Litig. , No. 16 Civ. 3338 (ER), 2018 WL 2324065, at *6 (S.D.N.Y. May 22, 2018) (citing Nielsen v. Rabin , 746 F.3d 58, 62 (2d Cir. 2014) ). However, a court "is not required to credit mere conclusory statements or threadbare recitals of the elements of a cause of action." Id. (citing Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ) (alterations and internal quotation marks omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Myun-Uk Choi v. Tower Rsch. Cap. LLC , 890 F.3d 60, 65-66 (2d Cir. 2018) (citing Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ) (citation and internal quotation marks omitted).

DISCUSSION

I. ADA Claim

Defendants present three main arguments each of which they assert warrants dismissal of Plaintiff's ADA claim. ECF No. 41 at 11-21. Principally, they are as follows: (1) Plaintiff fails to sufficiently allege that Viveport Infinity is a "place of public accommodation"; (2) Plaintiff fails to sufficiently allege that the ADA applies to Viveport Infinity's content; and (3) Plaintiff has not sufficiently alleged that Defendants have sufficient control over captioning the VR content. Id. The Court considers each of these arguments in turn below.

A. Whether Plaintiff has Adequately Alleged that Viveport Infinity is a Place of Public Accommodation

"The ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." Wilson v. Fabric Cellar, Inc. , No. 20-CV-244S, 2021 WL 2942354, at *5 (W.D.N.Y. July 13, 2021) (citation & internal quotation marks omitted).

Here, Plaintiff alleges violations of Title III. To state a claim under that section, a plaintiff must show that "(1) he or 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 him or her by denying him or her a full and equal opportunity to enjoy the services defendants provide." Id. (citing Camarillo v. Carrols Corp. , 518 F.3d 153, 156 (2d Cir. 2008) ).

The statute defines "public accommodation" as follows:

The following entities are considered public accommodations for purposes of this subchapter if the entities affect commerce—

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

42 U.S.C. § 12181(7).

Defendants do not dispute that Plaintiff has adequately alleged the first element—that he is...