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Mitchell v. Dover-Phila Federal Credit Union

United States District Court, N.D. Ohio, Eastern Division

June 25, 2018

WALTER MITCHELL, Plaintiff,
v.
DOVER-PHILA FEDERAL CREDIT UNION, Defendant.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 5]

          BENITA Y. PEARSON UNITED STATES DISTRICT JUDGE

         Pending 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 motion.

         I. Background

         Plaintiff, 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.

         Defendant 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.

         Plaintiff 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.

         As a 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.

         Defendant 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).

         As to 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 Procedure."[1] Id.

         Plaintiffs 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.

         In 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.

         II. Standard of Review

         Federal 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. 1990).

         To 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 ...


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