United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO.
Y. PEARSON UNITED STATES DISTRICT JUDGE
before the Court is Defendant Dover-Phila Federal Credit
Union's Motion to Dismiss. ECF No. 5. Plaintiff Walter
Mitchell has responded. ECF No. 16. Defendant has replied.
ECF No. 19. Also, Amici Ohio Credit Union League and Credit
Union National Association have filed an amicus brief in
support of Defendant's motion to dismiss. ECF No. 12. For
the following reasons, the Court grants Defendant's
an Ohio resident, is permanently blind. ECF No. 1 at PageID
#: 2. Blind individuals can access websites by using
keyboards and screen-reading software that vocalizes visual
information that appears on a computer screen. Id.
at PageID #: 4.
is a federal credit union. Id. at PageID #: 3. In
addition to having physical locations, Defendant has a
website that allows members to perform online banking
services and potential members to learn of the services
Defendant offers to its members. Id.
alleges that he has tried to access Defendant's website
several times in recent months, but he has been unable to do
so. Id. at PageID #: 10. Plaintiff alleges that at
least four barriers preclude his ability to use the site: (1)
the site lacks alternative text; (2) the site contains empty
links that do not include text; (3) the site has empty or
missing labels; and (4) the site contains redundant links.
Id. at PageID #: 9-10. Plaintiff contends that each
of these barriers prevent or make it difficult to use
screen-reading software. Id.
result, Plaintiff filed a lawsuit, alleging a violation of
Title III of the Americans with Disabilities Act, 42 U.S.C.
§ 12181, et seq. ECF No. 1. In his complaint,
Plaintiff seeks injunctive relief, attorney's fees, and
costs. Id. at PageID #: 13-14.
has filed a motion to dismiss. ECF No. 5. Defendant brings
the motion to dismiss under Federal Rules of Civil Procedure
12(b)(1) and (6). Defendant begins by arguing that Plaintiff
lacks standing, because, as a resident of Cincinnati, Ohio,
he is ineligible to be a member of the credit union.
Id. at PageID #: 185-89. As to the 12(b)(6)
argument, Defendant argues as follows: (1) Defendant's
website is not a place of public accommodation (id.
at PageID #: 189-94); (2) Plaintiff failed to make a request
for auxiliary aids or services (id. at PageID #:
194-98); (3) Title III of the ADA does not require Defendant
to create an accessible website (id. at PageID #:
198-200); and (4) Defendant offers a staffed phone line to
those who cannot access its website, so it does in fact offer
a sufficient auxiliary aid and service (id. at
PageID #: 200-01).
its standing argument, Defendant states that it is a
community credit union existing under 12U.S.C. §
1759(b)(3). Id. at PageID #: 188. Section 1759(b)(3)
limits members to "[p]ersons or organizations within a
well-defined local community, neighborhood, or rural
district." Defendant contends that Plaintiff cannot be a
member, because he lives more than 200 miles south of the
credit union's southernmost branch. ECF No. 5 at PageID
#: 188. Defendant also argues that Plaintiff has employed a
"scattershot approach of suing credit unions throughout
the State" that "essentially forecloses an
allegation he could be a member of DoverPhila consistent with
Rule 11 of the Federal Rules of Civil
response as to membership is two-fold: (1) he is eligible for
membership, because he works and volunteers in Tuscarawas
County and that he is the coordinator/director of the Ohio
NFB's News Line, which services residents of Tuscarawas
County, and (2) he is a member of Kemba Credit Union, whose
members may use Defendant's services through a
cooperative sharing network. ECF No. 16 at PageID#: 464-65.
He also argues that the ADA applies to individuals, so he
need not be a patron of the credit union to have standing.
Id. at PageID#: 465-68. Next, Plaintiff asserts that
he has alleged a likelihood of future harm. Id. at
PageID #: 468-69. He then contends that the number of
lawsuits he has filed is irrelevant to the matter of
standing. Id. at PageID #: 469-70. Plaintiff also
argues that case law on physical barriers is inapplicable to
this case. Id. at PageID #: 471-72. Finally,
Plaintiff concludes his standing argument by arguing the
Court should apply cases that ruled in his favor, while
attempting to distinguish cases that reach the opposite
conclusion. Id. at PageID #: 472-74.
Defendant's reply, it argues that Plaintiffs factual
allegations are insufficient to show standing and that his
legal authority is also lacking. First, Defendant points out
that Ohio NFB News Line "is a service, not an employer,
and the organization which offers it (NFB of Ohio), does not
have a single chapter or division in Tuscarawas County."
ECF No. 19 at PageID #: 669. Defendant also argues that its
co-op agreement only permits members of cooperating credit
unions to use Defendant's physical locations, not its
website. Id. at PageID #: 670. Defendant asserts
that Plaintiff fails to allege any plans to use
Defendant's banking services, that he ever visited one of
Defendant's physical locations, or that he has any future
intent to visit Defendant's website. Id. at
PageID #: 371. Defendant then argues Plaintiffs case law does
not apply and any claim that Plaintiff has suffered an injury
to his dignitary interest fails. Id. at PageID #:
672-73. Defendant also argues that even if Plaintiff is an
ADA tester, he still must show standing in this case.
Id. at PageID #: 674-76.
Standard of Review
Rule of Civil Procedure 12(b)(1) allows dismissal for
"lack of jurisdiction over the subject matter" of
claims asserted in the complaint. Fed.R.Civ.P. 12(b)(1). A
motion to dismiss for lack of subject-matter jurisdiction may
involve either facial attacks or factual attacks upon a
court's jurisdiction. United States v. Ritchie,
15 F.3d 592, 598 (6th Cir. 1994). "A facial attack on
the subject-matter jurisdiction alleged in the complaint
questions merely the sufficiency of the pleading."
GentekBldg. Prods., Inc. v. Sherwin-Williams Co.,
491 F.3d 320, 330 (6th Cir. 2007). When resolving a facial
attack, the reviewing court assumes the allegations within
the complaint are true. Id. "Where, on the
other hand, there is a factual attack on the subject-matter
jurisdiction alleged in the complaint, no presumptive
truthfulness applies to the allegations." Id.
When reviewing a factual attack, the court must weigh the
conflicting evidence to determine whether subject-matter
jurisdiction exists. Howard v. Whitbeck, 382 F.3d
633, 636 (6th Cir. 2004). Plaintiffs bear the burden of
establishing that jurisdiction exists. Madison Hushes v.
Shalala, 80 F.3d 1121, 1130 (6th Cir. 1996). Lack of
subject-matter jurisdiction is a non-waivable, fatal defect.
Von Dunser v. Aronoff 915 F.2d 1071, 1074 (6th Cir.
survive a Fed.R.Civ.P. 12(b)(6) motion to dismiss, a
plaintiffs complaint must allege enough facts to "raise
a right to relief above the speculative level." Ass
'n of Cleveland Fire Fishters v. City of Cleveland,
Ohio,502 F.3d 545, 548 (6th Cir. 2007) (quoting
Bell Atl. Corp. v. Twombly,550 U.S. 544, 555
(2007)). Fed.R.Civ.P. 8(a)(2) requires only that a pleading
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief."
However, "a plaintiff s obligation to provide the
'grounds' of his' entitle[ment] to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Twombly, 550 U.S. at 555 (citing
Papasan v. Allain,478 U.S. 265, 286 (1986)). A
complaint requires "further factual enhancement,"
which "state[s] a claim to relief that is plausible on
its face." Id. at 557, 570. A claim has facial
plausibility when there is enough factual content present to
allow "the court to draw the reasonable inference that
the defendant is liable for the ...