In her June 4, 2019, Opinion and Order, the Honorable Katherine Polk Failla, District Court Judge for the Southern District of New York, broke new ground, in allowing an ADA case, claiming website inaccessibility, to be dismissed on the grounds of mootness. In Diaz v. The Kroger Co., 1:18-vc-07953 (KPF), Judge Failla found in favor of The Kroger Co. and dismissed the plaintiff’s First Amended Complaint, which alleged that Kroger’s website discriminated against individuals with disabilities–specifically blind individuals, in that its website did not meet ADA standards for website accessibility–on the grounds of both lack of subject matter jurisdiction and lack of personal jurisdiction.
The Court’s Findings on Mootness:
In dismissing the plaintiff, Edwin Diaz’s, First Amended Complaint on the grounds of lack of subject matter jurisdiction, the Court held that Kroger was able to address the deficiencies that other sister courts have recognized in the supporting documentation submitted by similarly situated defendants in website accessibility cases claiming that their cases were mooted by virtue of them being accessible and compliant with ADA standards:
The instant case is different. [Kroger’s] affidavit addresses the deficiencies that courts have identified in defense showings made in support of mootness arguments. [. . .] Significantly, [Kroger] does not present some future plan for remediation of the Website, or some conclusory assertion that the Website is today compliant with the ADA. Instead, [Kroger] avers specifically that (i) Defendant undertook compliance with the WCAG standards before the lawsuit was filed; (ii) the Website is today compliant with those standards; (iii) [Kroger’s representative] personally confirmed that the specific barriers to access identified in Plaintiff’s initial and amended complaints “have been remedied and that no such barriers to access, as alleged, still exist with the website”; (iv) Defendant has no intention of undoing those changes or regressing to non-compliance with the ADA; and (v) Defendant commits “to keep its website up to date and compliant with all applicable standards to make the website as accessible to all as possible.” This is a level of detail that the Court has not observed in other cases it has reviewed.
Judge Failla went on to reject plaintiff’s contention that web accessibility cases could never be mooted, stating that such a sweeping proposition is unnecessary and “would insert a brittle, technology-specific exception into the mootness doctrine that would itself become obsolete in an era of rapidly-changing technology.”
In summarizing her rationale, Judge Failla stated, “To review, Plaintiff identified several barriers to his use and enjoyment of the Website. Defendant removed those barriers, brought the Website into compliance with Plaintiff’s preferred WCAG 2.0 standard, and commits to monitoring technological developments in the future to ensure that visually-impaired individuals have equal access to the Website. On this record, Defendant has met the stringent showing required by the Supreme Court’s mootness precedents.”
The Court’s Findings on Lack of Personal Jurisdiction:
Judge Failla went even further in her opinion and order, granting dismissal of the Plaintiff’s First Amended Complaint on a second and independent basis. Judge Failla found that since her discussion and holding on mootness broke new ground, and that a reviewing court may ultimately disagree with her analysis, that she would address the second independent basis for dismissing Plaintiff’s First Amended Complaint—lack of personal jurisdiction.
The Court found that Kroger did not have any brick and mortar stores within the State of New York. Additionally, the Court went on to Kroger’s website and attempted to order goods for shipment into the State of New York. Upon attempting to order goods, the Court confirmed that Kroger does not actually ship into the state. Upon this finding, and in conjunction with the fact that Kroger does not have any brick and mortar physical locations in the State of New York, Judge Failla found that the Court lacked personal jurisdiction over Kroger consistent with the requirements of due process and granted Kroger’s motion to dismiss on the independent ground of lack of personal jurisdiction.
Judge Failla’s decision was a groundbreaking decision for defendants in the Southern District of New York in website accessibility cases under the ADA. It now gives defendants an avenue in which to moot cases that were previously believed to be incapable of being mooted, so long as they meet the stringent requirements of the Supreme Court’s cases in demonstrating that the case itself is moot.
*The author of this article took part in drafting the motion to dismiss on behalf of The Kroger Co.
Anthony joined Perez & Morris in 2017. Prior to joining Perez & Morris, Anthony practiced with a law firm that handled personal injury, premises liability, and real estate litigation, amongst various other matters. He is a member of the New York State Bar Association, New Jersey State Bar Association, and the Columbian Lawyers Association of Rockland County.
Anthony is also an adjunct professor of Business Law at St. Thomas Aquinas College in Sparkill, New York, where he graduated magna cum laude in 2011 with a Bachelor’s Degree in History and a minor in Performing Arts. Read more
