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Melissa J. Earll v. Ebay Inc


August 8, 2012


The opinion of the court was delivered by: Edward J. Davila United States District Judge

United States District Court For the Northern District of California


Presently before the court is Defendant eBay Inc.'s ("eBay") Motion to Dismiss the First Amended Complaint ("FAC") filed by Plaintiff Melissa J. Earll ("Earll"), on behalf of herself and 18 all others similarly situated. See Docket No. 66. Earll filed written opposition to the motion. See Docket No. 68. The court found this matter suitable for decision without oral argument pursuant to 20 Civil Local Rule 7-1(b) and previously vacated the hearing date. Subject matter jurisdiction in this 21 court arises pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are proper because eBay 22 is a corporation headquartered in Santa Clara County. Having fully reviewed the moving, opposing 23 and reply papers filed by the parties, the court has determined eBay's motion should be 24

GRANTED for the reasons described below.25


The allegations contained in this section are taken largely from the FAC. Earll, a Missouri 27 resident who is deaf, attempted to use eBay's selling services on June 23, 2008. FAC, Docket No. 28 63, ¶¶ 24-25. Earll alleges she was unable to register as an eBay seller because eBay's seller 2 registration process includes a telephone verification component. Id. ¶¶ 26-27. For over six weeks, 3

Earll repeatedly told eBay that she was deaf and that the procedures employed by eBay prevented 4 her from registering as a seller. Id. ¶¶ 25-37. Earll participated in several "live chat" sessions and 5 exchanged many emails with eBay representatives where she communicated with eBay 6 representatives over the Internet, but none accommodated her request to register as a seller using an 7 alternate means of verification. Id. ¶¶ 28, 31. Earll alleges eBay intentionally discriminated against 8 hearing-impaired persons by creating a verification system they cannot use. Id. ¶ 40. 9

Earll filed the putative class action on March 16, 2010 in the Western District of Missouri.

In her original complaint, Earll asserted claims pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA") and the California Disabled Persons Act, Cal. Civ. Code §§ 54, et seq. ("DPA").*fn1 See Docket No. 1. While the case was pending in Missouri, eBay moved to 13 dismiss the case, or alternatively sought to transfer venue to the Northern District of California. See 14 Docket Nos. 14-17. On January 4, 2011, the court in Missouri granted eBay's motion to transfer 15 venue, denied eBay's motion to dismiss as moot, and ordered the case transferred to the Northern 16 District of California. See Docket No. 28. After transfer to this court, eBay moved again to dismiss 17 the case on April 8, 2011. See Docket No. 45. 18

Thereafter, Earll moved for leave to file an amended complaint, which advanced claims 19 under the ADA and DPA, and also sought to add a claim under the Unruh Civil Rights Act, Cal. 20 Civ. Code §§ 51, et seq. ("Unruh Act"). See Docket No. 47. Judge Fogel denied Earll's motion for 21 leave to amend without prejudice, and dismissed eBay's then-pending motion to dismiss as moot. 22

Order, Docket No. 61, at 6:4-7. In denying Earll's motion to file an amended complaint, Judge 23 Fogel held that (1) the ADA could not afford a remedy to Earll in this case because is 24 not a place of public accommodation, but (2) Earll may be able to state an independent claim under 25 the Unruh Act if she sufficiently pleaded intentional discrimination and (3) Earll may be able to state independent claims under the DPA if she alleged a violation of a California law that requires 2 higher standards of website accessibility than the ADA. Order at 3:18-5:22. Earll had not done so 3 in her proposed amended complaint, but Judge Fogel granted Earll leave to file an amended 4 complaint consistent with his order. 5

On October 5, 2011, Earll filed her FAC alleging violations of the ADA, the DPA, and the Unruh Act. 7


Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient 9 specificity to "give the defendant fair notice of what the . . . claim is and the grounds upon which it 10 rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may therefore be dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "Dismissal under Rule 12(b)(6) is 13 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a 14 cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 15 2008). 16

When deciding whether to grant a motion to dismiss, the court must accept as true all "well- 17 pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court must also 18 construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 19 F.2d 1242, 1245 (9th Cir. 1988). However, "courts are not bound to accept as true a legal 20 conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. Moreover, anything 21 beyond the pleadings generally may not be examined. Hal Roach Studios, Inc. v. Richard Feiner & 22 Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). But "material which is properly submitted as part of 23 the complaint may be considered." Twombly, 550 U.S. at 555. 24 "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear 25 that the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 26 316 F.3d 1048, 1052 (9th Cir. 2003). "A district court's failure to consider the relevant factors and 27 28 articulate why dismissal should be with prejudice instead of without prejudice may constitute an 2 abuse of discretion." Id. 3


A. Violation of the ADA

To prevail on a discrimination claim under Title III of the ADA, a plaintiff must show that:

(1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, 7 leases, or operates a place of public accommodation; and (3) the plaintiff was denied a public 8 accommodation by the defendant because of her disability. Ariz. ex. rel. Goddard v. Harkins 9 Amusement Enters., 603 F.3d 666, 670 (9th Cir. 2010). 10

In denying Earll's motion to amend, Judge Fogel found that, "[u]nder controlling Ninth Circuit authority, 'places of public accommodation' under the ADA are limited to actual physical 12 spaces. Weyer v. Twentieth Century Fox Film Corp., 198 2 F.3d 1104, 1114 (9th Cir. 2000). Thus, 13 eBay is correct in arguing that the ADA cannot afford a remedy to Earll in this case." Order at 14 3:28-4:3. Judge Fogel granted Earll leave to file an amended complaint consistent with his Order. 15 Despite Judge Fogel's Order, Earll alleged an ADA violation in the FAC. In opposing this 16 motion to dismiss, Earll argues that Judge Fogel misinterpreted Weyer, or, alternatively, Weyer 17 was incorrectly decided. 18

The ADA claim in the FAC is inconsistent with Judge Fogel's Order and therefore 19 exceeded the scope of Earll's leave to amend the complaint. Additionally, Earll's attempt to re-20 litigate whether is a place of public accommodation is, in effect, a motion for 21 reconsideration, which is not properly before the Court. See Civil L.R. 7--9; Wehlage v. EmpRes 22 Healthcare Inc., 821 F. Supp. 2d 1122, 1134 (N.D. Cal. 2011) (observing that "attempts to re-23 litigate . . . the merits . . . are, in effect, motions for reconsideration . . . ." and rejecting arguments 24 on grounds that movant had failed to seek leave under Civ. L.R. 7-9(a)). Therefore, eBay's motion 25 to dismiss the ADA claim is GRANTED. Because Earll will not be able to overcome the fact that 26 the ADA does not apply to by amending her complaint, leave to amend is not 27 appropriate. 28

B. Violation of the DPA 2

The DPA provides that "[i]ndividuals with disabilities shall be entitled to full and equal 3 access, as other members of the general public, to accommodations, advantages, facilities, . . . and 4 privileges of all common carriers, . . . modes of transportation . . . , places of public 5 accommodation, . . . and other places to which the general public is invited . . . ." Cal. Civ. Code §§ 6 54, 54.1(a)(1). 7

Judge Fogel recognized that Earll could still assert a DPA claim independent of her ADA 8 claim, but to do so she "would need to allege in effect a particular provision or regulation under 9 California law that requires higher standards of website accessibility than the ADA." Order at 5:4-6 10 (internal citation and quotations omitted). "The DPA is not a freestanding statute. To succeed on a DPA claim, a plaintiff must point to separate California state regulations that prescribe higher accessibility standards than the ADA." Id. at 4:27-5:1 13

Contrary to Judge Fogel's Order, Earll did not allege a particular California provision or 14 regulation requiring higher standards of website accessibility than the ADA in the FAC. Rather, 15 Earll argues that Judge Fogel misinterpreted the DPA and that the DPA is a freestanding statute, 16 which does not require a DPA claim be based on a separate California statute. 17

The DPA claim in the FAC is inconsistent with Judge Fogel's Order and therefore exceeded 18 the scope of Earll's leave to amend the complaint. Additionally, Earll's attempt to re-litigate 19 whether the DPA requires that a plaintiff point to separate California state regulations that 20 prescribe higher accessibility standards than the ADA is, in effect, a motion for reconsideration, 21 which is not properly before the Court. See Civil L.R. 7--9(a); Wehlage, 821 F. Supp. 2d at 1134. If 22 Earll seeks reconsideration Judge Fogel's Order regarding this issue, she must comply with Civil 23 Local Rule 7-9. Therefore, eBay's motion to dismiss the DPA claim is GRANTED. Because Earll 24 also alleges that "there are no other statutes or regulations on which the DPA may rely in this 25 case," leave to amend would be futile. 26 27 28

D. Violation of the Unruh Act

The Unruh Civil Rights Act provides that "[a]ll person within the jurisdiction of this state 3 are free and equal, and no matter what their . . . disability . . . are entitled to the full and equal 4 accommodations, advantages, facilities, privileges, or services in all business establishments of 5 every kind whatsoever." Cal. Civ. Code § 51(b). To plead an Unruh Act violation independent of 6 an ADA claim, a plaintiff must allege "intentional discrimination in public accommodations in 7 violation of terms of the Act.' " Munson v. Del Taco, Inc., 46 Cal. 4th 661, 668 (2009) (quoting 8 Harris v. Capital Growth Investors XIV, 52 Cal. 3d 1142, 1175 (1991)). The California Supreme 9 Court has concluded that the Act requires allegations of "willful, affirmative misconduct," and that 10 a plaintiff must allege more than the disparate impact of a facially neutral policy on a particular group. See Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 854--54 (2005).

First, Earll argues that intentional discrimination may not be required to plead an 13 independent Unruh Act violation. Judge Fogel previously held that "[a] violation of the Unruh Act 14 may be maintained independent of an ADA claim where a plaintiff pleads 'intentional 15 discrimination in public accommodations in violation of the terms of the Act.' " Order at 4:13-15. 16 Judge Fogel denied Earll's motion to amend because Earll had not sufficiently pleaded facts 17 showing intentional discrimination. Id. at 5:7-22. Earll's attempt to re-litigate whether intent is a 18 necessary element of an independent Unruh Act violation is essentially a motion for 19 reconsideration, which is not properly before the Court, and therefore this argument fails. 20

Additionally, Earll argues that she has sufficiently pleaded intentional discrimination. Judge Fogel rejected Earll's previous attempt to plead an Unruh Act claim because Earll's allegations that 22 "eBay has gone out of its way to design a system that deaf and hard of hearing persons cannot use" 23 and refused to implement "easy and inexpensive" solutions "being used by thousands of companies 24 online" were "[c]onclusory and lack[ed] the requisite factual support to make out a plausible claim 25 for intentional discrimination." Id. at 5:7-13. Judge Fogel further observed that Earll's allegations 26 that she was told by eBay representatives to "enlist the help of a hearing person" were offset by 27 "other alleged communications in which eBay representatives informed her that she 'would be able 28 to verify her identify through the Live help function [on eBay's website]' " Id. at 5:13-17. Judge 2 Fogel concluded: "That Earll did not succeed in verifying her identity through these alternative 3 means does not reasonably imply that eBay was unwilling or unable to remedy the situation" and 4 that "[a]s described in [Earll's] proposed pleading, eBay's actions did not necessarily amount to an 5 intentional denial of access to a public accommodation." Id. at 5:18-21. 6

Similar to Earll's proposed complaint, the FAC acknowledges that eBay generally

"requires sellers to verify their identities in order to sell items on" by "plac[ing] an 8 automated phone call to the would-be seller" and "requir[ing] the would-be seller to verify her 9 identify by listening to a spoken PIN code or password and then inputting that PIN code or 10 password online." FAC ¶ 2. According to the FAC, eBay intentionally discriminated against Earll based on her disability by "construct[ing] a website that is inaccessible to [Earll] and Class members; maintain[ing] the website in this inaccessible form; and [failing] to take actions to 13 correct these barriers even after being notified of the discrimination that such barriers cause."*fn1 Id. ¶ 14 96. 15

Earll's allegations describe a facially neutral verification process with a disparate impact on 16 the deaf community, but they do not demonstrate intentional discrimination. Furthermore, the fact 17 that Earll contacted eBay's customer service and unsuccessfully requested to have eBay's 18 otherwise applicable procedures modified is not sufficient to state a plausible claim of intentional 19 discrimination. FAC ¶¶ 27-35; Young v. Facebook, Inc., 790 F. Supp. 2d 1110, 1116 (N.D. Cal. 20 2011) (dismissing Unruh Act claim where plaintiff alleged that Facebook customer service was 21 difficult to use but did not allege that "Facebook treated her differently because of her disability, 22 nor . . . that Facebook applies its policies in a way that targets individuals with disabilities."). In 23 51.5 of the Unruh Act shall be construed to "require any . . . modification of any sort . . . beyond 26 FAC be dismissed on this basis fails.

opposition to this motion, Earll argues that eBay designed and maintained its verification process 2 in this manner in order to accomplish its goal of discrimination and that she also has a viable Unruh Act claim for discriminatory application. The FAC, however, does not allege facts supporting these 4 potential theories of intentional discrimination.

Thus, Earll does not sufficiently plead intentional discrimination. Therefore, eBay's motion to dismiss Earll's Unruh Act claim is GRANTED WITH LEAVE TO AMEND. 7


Based on the foregoing, eBay's Motion to Dismiss the FAC is GRANTED WITHOUT LEAVE TO AMEND as to Earll's ADA and DPA claims. eBay's Motion to Dismiss is 10 GRANTED WITH LEAVE TO AMEND as to Earll's Unruh Act claim. Any amended complaint 11 must be filed no later than 30 days from the filing of this order.


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