Weekes v. The Outdoor Gear Exch.

1

ROBERT WEEKES, individually and on behalf of all others similarly situated, Plaintiff, v. THE OUTDOOR GEAR EXCHANGE, INC., Defendant.

No. 22 Civ. 1283 (ER)

United States District Court, S.D. New York

March 6, 2023

OPINION & ORDER

EDGARDO RAMOS, U.S.D.J

Robert Weekes, a visually impaired and legally blind person, brings this putative class action alleging that he has been denied full and equal access to a website operated by The Outdoor Gear Exchange, Inc. (“OGE”) in violation of federal and state law. Doc. 23. Before the Court is OGE's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim. Doc. 26. Alternatively, in the event the motion to dismiss is denied, OGE moves to transfer the venue to the District of Vermont. Id. For the reasons set forth below, the motions are DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY^[1]

Robert Weekes, a resident of New York City, is visually impaired. ¶ 12. To navigate websites online, he uses a screen-reading software, NonVisual Desktop Access (“NVDA”), one of the most popular software programs currently available. ¶¶ 1, 16.

OGE is a registered Vermont Corporation and operates an internet website, www.gearx.com (the “Website”).^[2] ¶ 13. The Website offers a variety of products relating to outdoor activity. ¶ 2. Additionally, the Website offers a live customer service representative during store hours whom customers can interact with to ask questions regarding OGE's products and to facilitate purchases. Doc. 26, at 4 (citing to the Website).

On February 10, 2022, Weekes attempted to purchase an Osprey-brand, carry-on bag from the Website to carry his athletic equipment for tennis and karate. ¶ 2. However while using the Website, Weekes experienced three issues. The screen-reader failed (1) to read the item descriptions, (2) to register when an item had been added to his cart, and (3) to read the size and color of the bag he selected. Id. As a result, Weekes was unable to complete the purchase.

Weekes filed this action on February 15, 2022. Doc. 1. A pre-motion conference was held on June 1, 2022, at which time Weekes was given leave to file an amended complaint by June 15, 2022.^[3] The amended complaint was ultimately filed on June 27, 2022. Doc. 23. Prior to filing the amended complaint, on June 15, 2022, Weekes returned to the Website but again experienced the same obstacles and was unable to complete the purchase. ¶ 2. Weekes asserts that he intends to return to the Website to complete his purchase as soon as the accessibility issues are resolved. ¶ 24. He specifically requests that the Website be compliant with the Web Content Accessibility Guidelines (“WCAG”). ¶¶18-19. WCAG is a set of guidelines developed by the World Wide Web Consortium to ensure that websites are accessible to visually-impaired individuals. ¶ 18.

Weekes alleges that the failure of the Website to accommodate his visual impairment discriminates against him, and others similarly situated, on the basis of disability in violation of Title III of the Americans with Disabilities Act (“ADA”) and the New York City Human Rights Law (“NYCHRL”). ¶ 4. Weekes seeks both declaratory and injunctive relief as well as compensatory damages against OGE. ¶¶ 34, 52.

On July 25, 2022, OGE filed the instant motion to dismiss pursuant to Federal Rules of Civil Procedure Rule 12(b)(1) and (6) for lack of standing and failure to state a claim. Doc. 26. Alternatively, OGE moves to change venue from this Court to the District of Vermont pursuant to 28 USC § 1404(a). Id.

II. LEGAL STANDARD

FRCP 12(b)(1)

When the issue before the Court involves a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), the Court must consider the Rule 12(b)(1) motion first because “disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction.” Chambers v. Wright, No. 5 Civ. 9915 (WHP), 2007 WL 4462181, at *2 (S.D.N.Y. Dec. 19, 2007) (internal quotation marks and citation omitted); see also Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F.Supp.2d 490, 499 (S.D.N.Y. 2011), aff'd, 496 Fed.Appx. 131 (2d Cir. 2012).

Pursuant to Rule 12(b)(1), the Court must dismiss a case for lack of subject matter jurisdiction if the Court “lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed.R.Civ.P. 12(b)(1)). The party asserting subject matter jurisdiction bears the burden of establishing that jurisdiction exists by a preponderance of the evidence. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova, 201 F.3d at 113). The Court accepts all material factual allegations in the complaint as true, id. (quoting Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006)), but it does not presume the truthfulness of the complaint's jurisdictional allegations, Frisone v. Pepsico, Inc., 369 F.Supp.2d 464, 469-70 (S.D.N.Y. 2005) (quoting Augienello v. Fed. Deposit Ins. Corp., 310 F.Supp.2d 582, 588 (S.D.N.Y. 2004)). When evaluating a Rule 12(b)(1) motion, the Court may consider evidence outside of the pleadings to resolve the disputed jurisdictional fact issues. Zappia Middle E. Constr. Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Morrison, 547 F.3d at 170 (citing Makarova, 201 F.3d at 113). However, the Court should refrain from drawing inferences in favor of the party asserting subject matter jurisdiction on a Rule 12(b)(1) motion. People United for Child., Inc. v. City of New York, 108 F.Supp.2d 275, 283 (S.D.N.Y. 2000) (citing Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)).

FRCP 12(b)(6)

Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). The Court is not required, however, to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.

Motion to Transfer Venue

When considering a motion to transfer venue, the analysis involves two parts. Megna v. Biocomp Lab'ys Inc., 220 F.Supp.3d. 496, 497 (S.D.N.Y. 2016). First, the court must determine whether the suit could have been filed in the proposed forum. Id. If this is met, the court considers nine factors:

“(1) convenience of witnesses; (2) convenience of the parties; (3) location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiff's choice of forum; and (9) judicial economy and the interests of justice.”

Id. at 498 (quoting Frame v. Whole Foods Mkt., Inc., No. 06 Civ. 7058 (DAB), 2007 WL 2815613, at *4 (S.D.N.Y. Sept. 24, 2007)). Furthermore, one factor is not necessarily dispositive of another and each factor will vary based on the circumstances of the case. Smart Skins LLC v. Microsoft Corp., No. 14 Civ. 10149 (CM), 2015 WL 1499843, at *4 (S.D.N.Y. Mar. 27, 2015).

III. DISCUSSION

12(b)(1) Motion

To have standing to sue, a “plaintiff must have (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, 578 U.S. 330, 338 (2016). When a plaintiff seeks injunctive relief, as here, he “must also prove that the identified injury in fact presents a ‘real and immediate threat of future injury' often termed ‘a likelihood of future harm.'” Bernstein v. City of New York, 621 Fed.Appx. 56, 57 (2d Cir. 2015) (quoting Shain v. Ellison, 356 F.3d 211, 215-16 (2d Cir. 2004)). “In reviewing standing under the ADA, ‘a broad view of constitutional standing' is appropriate because ‘private enforcement suits are the primary method of obtaining compliance with the Act.'” Feltzin v. Clocktower Plaza Props., Ltd., No. 16 Civ. 4329 (DRH)(AYS), 2018 WL 1221153, at *3 (E.D.N.Y. Mar. 8, 2018) (quoting Rosa v. 600 Broadway Partners, LLC, 175 F.Supp.3d 191, 199 (S.D.N.Y. 2016)).

In the context of the ADA, a plaintiff seeking injunctive relief has standing if: (1) it is reasonable to infer that the discriminatory treatment will continue; (2) it is reasonable to infer that the plaintiff intends to return to the public accommodation; and (3) he alleges past injury under the ADA. Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 74 (2d Cir. 2022) (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013)). For the reasons...