Author: FGC
On June 4, 2019, the United States District Court for the Southern District of New York granted Defendant’s motion to dismiss since the company mooted Plaintiff’s claims and for lack of personal jurisdiction over Defendant.
By way of background, Plaintiff alleged that Defendant’s website denied equal access to visually-impaired customers and that Defendant’s website was not compliant with Title III of the Americans with the Americans with Disabilities Act, ADA; the New York State Human Rights Law, NYSHRL, the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101 to 8-131, NYCHRL; and the New York Civil Rights Law §§ 40-41, NYCRL.
Defendant is a supermarket chain, with a principal place of business in Cincinnati, Ohio. Defendant maintains brick and mortar locations – none of which is located in New York State – in addition to operating a website from which consumers may purchase goods for delivery and find some other information on promotions, coupons and recipes.
Defendant claimed that it remedied the barriers to access its website and moved to dismiss under FRCP Rule 12(b)(1) for lack of subject matter jurisdiction, and under Rule 12(b)(2) for lack of personal jurisdiction since it does not conduct business in New York State.
The Court granted Defendant’s motion.
First, it found that the company mooted the plaintiff’s claims based on Plaintiff’s affidavit which did not “present some future plan for remediation of the Website, or some conclusory assertion that the Website is today compliant with the ADA.” Instead, Defendant specifically stated that (i) the website was, is and will be compliant with the WCAG standards before the lawsuit was filed; (ii) the specific barriers to access the website initially identified by Plaintiff “have been remedied and that no such barriers to access, as alleged, still exist with the website”; (iii) Defendant commits “to keep its website up to date and compliant with all applicable standards to make the [*9] website as accessible to all as possible.”
Secondly, the court granted his motion for lack of personal jurisdiction based on the fact that “delivery is not available” to any New York state zip code. Therefore, the Court finds that Defendant does not sell, through the Website, goods or services to New York residents. In consequence, the fact that Plaintiff can access the Website in the Bronx, standing alone, does not amount to Defendant’s transacting business in the state for purposes of New York’s long-arm statute.”
Diaz v. Kroger Co., 2019 U.S. Dist. LEXIS 93177, 2019 WL 2357531 is available at https://www.pacermonitor.com…
For more information on how privacy concern could impact your business, Francesca Giannoni-Crystal and Federica Romanelli