United States District Court, S.D. Ohio, Western Division, Dayton
ENTRY AND ORDER GRANTING DEFENDANT DAYMET CREDIT
UNION'S MOTION TO DISMISS, ECF 3.
M. ROSE, UNITED STATES DISTRICT JUDGE.
before the Court is Motion of DayMet Credit Union
(“DayMet”) to dismiss Plaintiff Walter
Mitchell's (“Mitchell”) claims pursuant to
Fed.R.Civ.P. 12(b)(1) and (6). ECF No. 3. Mitchell filed the
complaint on March 2, 2018. ECF No. 1. DayMet filed the
present motion and memorandum in support of the motion on
June 4, 2018. ECF Nos. 3, 4. Mitchell filed his response to
the motion on June 25, 2018. ECF No. 6. DayMet filed its
reply to the response motion on July 5, 2018. ECF No. 8.
DayMet has filed three notices of supplemental authority in
the action, to which Mitchell has responded twice. ECF Nos.
11-12, 14, 16-17. Mitchell has also filed two notices of
supplemental authority. ECF Nos. 9, 10. Because
Mitchell's complaint requests injunctive relief but
alleges no future harm, DayMet's Motion to Dismiss for
Lack of Standing is hereby granted.
Walter Mitchell is a blind resident of Ohio. ECF No. 1 ¶
5. Mitchell uses screen reading technology to access
websites. He alleges that he attempted to access Defendant
DayMet's website, but he was unable to navigate the
website because it was incompatible with screen reading
technology. ECF No. 1 ¶ 14-17. Mitchell has sued DayMet
under Title III of the Americans with Disabilities Act (ADA),
alleging that DayMet is denying blind and visually impaired
individuals equal access to DayMet's website. ECF No. 1
at Count I.
is a Credit Union that limits its membership to those who
“live, work, attend school, or worship in Montgomery,
Miami, Greene, or Clark Counties in Ohio.” ECF No. 4 at
5. Mitchell is not a member of DayMet, and DayMet alleges
that he cannot become a member of DayMet. Id.
Mitchell, however, alleges that he is eligible for membership
in DayMet because he publishes a newsletter, the National
Foundation for the Blind Newsletter, in three of those
counties, and interacts with and visits subscribers of the
newsletter in those counties, such that he works in those
counties. ECF No. 1 ¶ 4.
alleges that he visited DayMet's website several times.
Id. ¶ 17. He alleges DayMet's website
deficiencies as follows: “(1) Linked image missing
alternative text . . . result[ing] in an empty link . . .;
(2) [e]mpty or missing form labels . . .; and (3) [r]edundant
[l]inks where adjacent links go to the same URL address . . .
.” Id. ¶ 15. Mitchell alleges that these
deficiencies “denied [him] full and equal access, and
deterred [him] on a regular basis from accessing
[DayMet]'s website.” Id. ¶ 17.
Mitchell also alleges he was deterred from visiting
DayMet's physical locations because of the deficiencies
on DayMet's website. Id. ¶ 17. Mitchell has
requested injunctive relief requiring DayMet to make its
website equally accessible for blind and visually impaired
individuals, for attorney fees and expenses, litigation
costs, and for any other relief this Court might find
appropriate. Id. at Relief Requested, PageID 11.
has moved to dismiss Mitchell's suit under Federal Rule
of Civil Procedure 12(b)(1) for lack of subject matter
jurisdiction and under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. The standard of review
will be applied below, followed by an analysis of the
Standard of Review
the Court may determine whether a plaintiff has failed to
state a claim upon which relief may be granted, under a Rule
12(b)(6) motion, the Court must first resolve whether it may
exercise jurisdiction over the subject matter. City of
Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp. 971, 975
(S.D. Ohio 1993). “Federal courts may exercise
jurisdiction only where an actual ‘case or
controversy' exists.” Parsons v. U.S. Dep't
of Justice, 801 F.3d 701, 709-10 (6th Cir. 2015) (citing
U.S. Const. art. III, § 2). The case or controversy
requirement has been interpreted as requiring “a
litigant have standing to invoke the jurisdiction of the
federal courts.” Parsons, 801 F.3d at 710
(internal citation and quotation marks omitted). In other
words, this Court must first determine the 12(b)(1) motion
before it may determine the 12(b)(6) motion before it.
Subject-Matter Jurisdiction Standard of Review
subject-matter jurisdiction is challenged, the party claiming
the jurisdiction bears the burden of proving it. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 561 (1992). Rule
12(b)(1) provides that the defendant may file a motion to
dismiss based on a “lack of jurisdiction over the
subject matter.” The standard of review of a 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction
depends on whether the defendant makes a facial or factual
challenge to subject matter jurisdiction. Wayside Church
v. Van Buren County, 847 F.3d 812, 816-17 (6th Cir.
2017) (citing Carrier Corp. v. Outokumpu Oyj, 673
F.3d 430, 440 (6th Cir. 2012). A facial attack- which DayMet
uses here-"questions merely the sufficiency of the
pleading.” Id. (citing Gentek Bldg Prods.,
Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th
Cir. 2007)). This requires the Court to “take the
allegations in the complaint as true.” Id. A
factual attack of the subject-matter jurisdiction, however,
would raise a factual controversy, and would require the
district court to weigh evidence to determine whether
subject-matter jurisdiction does in fact exist. Id.
Because the attack DayMet makes in this case is facial, the
Court will only review the complaint to determine the
sufficiency of jurisdiction.
Failure to state a claim motion standard.
purpose of a Rule 12(b)(6) motion to dismiss is to allow a
defendant to test whether, as a matter of law, the plaintiff
is entitled to legal relief even if everything alleged in the
complaint is true.” Bihn v. Fifth Third Mortg.
Co., 980 F.Supp.2d 892, 897 (S.D. Ohio 2013) (citing
Mayer v. Mylod, 988 F.2d 635, 638 (6th
Cir. 1993)). Moreover, the purpose of the motion is to test
the formal sufficiency of the statement of the claim for
relief. Id. “[F]or the purposes of a motion to
dismiss, the complaint must be construed in the light most
favorable to the plaintiff and its allegations taken as
true.” Id. (citing Scheuer v. Rhodes,
416 U.S. 232 (1974)).
survive a 12(b)(6) motion to dismiss, a plaintiff must
provide more than labels and conclusions; a formulaic
recitation of the elements of a cause of action is not
enough. Bell Atlantic v. Twombly, 550 U.S. 544
(2007). Further, the factual allegations must be enough to
raise a right to relief above the speculative level and must
also do something more than merely create a suspicion of a
legally cognizable right. Id. However, the Court is
not bound to accept as true a legal conclusion couched as
factual allegation or unwarranted factual inferences.
Id. at 555; Morgan v. Church's Fried
Chicken, 829 F.2d 10, 12 (6th Cir. 1987); See also
Ashcroft v. Iqbal, 556 U.S. 662 (2009). ...