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
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT (Re: Docket No. 66)
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
I. FACTUAL AND PROCEDURAL BACKGROUND
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 eBay.com 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 ...