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Garner v. VIST Bank

United States District Court, Third Circuit

December 26, 2013




Presently before the Court is Defendant VIST Financial Corporation’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 12.) For the following reasons, Defendant’s Motion will be denied.


Plaintiff Darryl Garner (“Garner”), on behalf of himself and others similarly situated and, Plaintiff Blind Ambitions Groups (“Blind Ambitions”), on behalf of its members and all others similarly situated, bring this action against VIST Financial Corporation (“Defendant”), alleging violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq., (the “ADA”).

Garner was born and raised in the City of Philadelphia. (Am. Compl. ¶ 1, ECF No. 10.) He moved from Philadelphia in 1986 but continued to travel there on a daily basis as he was employed in West Philadelphia. (Id. at ¶ 2.) Most of his family still lives in Philadelphia, so he travels to Philadelphia at least once a month, but sometimes as often as once a week. (Id. at ¶¶ 5-6.) Garner lost his vision in 2009 due to diabetic retinopathy. (Id. at ¶ 4.) After Garner lost his vision, he had to stop working in Philadelphia. (Id. at ¶¶ 3-4.) Garner is an active member of Blind Ambitions, which provides educational support to the blind community, including advocacy for accessibility to goods and services. (Id. at ¶ 7.) Throughout his daily business, Garner uses banking services through ATMs, provided that the ATMs are accessible to the blind. (Id. at ¶ 8.) If an ATM is not accessible to the blind, Garner cannot use the ATM independently, but has to divulge private banking information to a third party to successfully use the ATM. (Id. at ¶ 9.)

Garner alleges that sometime after March 15, 2012, he visited an ATM owned and operated by Defendant, located at 36 North 3rd Street, Philadelphia, PA 19106 (the “Subject ATM”). (Id. at ¶¶ 15, 46.) At the time of Garner’s visit to the Subject ATM, there was no functional voice-guidance feature, and there were no features to provide blind and visually-impaired users with the same level of privacy of input and output that is provided for sighted individuals. (Id. at ¶ 47.) Garner is routinely in the immediate vicinity of the Subject ATM and has been unable to use it because it did not have a working voice-guidance feature. (Id. at ¶¶ 50, 52.) He will continue to attempt to use the Subject ATM because he wants to identify convenient-accessible ATM options within the geographic zone that he usually travels as part of his daily and weekly activities. (Id. at ¶ 55.) Garner alleges that once he discovered that the Subject ATM lacked accessibility for the visually impaired, he caused an investigation to be undertaken that revealed that “other ATM machines in Defendant’s ATM network are in violation of Chapter 707 of the 2010 Standards.” (Id. at ¶ 48.) Garner further alleges that Defendant has centralized policies regarding the management and operation of its ATMs, but Defendant does not have a plan or policy that provides for its ATMs to timely comply with Chapter 7 of the 2010 Standards for Accessible Design (the “2010 Standards”). (Id. at ¶ 49.)

Garner filed the original complaint on September 13, 2012, seeking injunctive and declaratory relief. (Compl., ECF No. 1.) On December 3, 2012, an Amended Complaint was filed, adding Blind Ambitions as a Plaintiff. (Am. Compl.) In the Amended Complaint, Plaintiffs allege that Defendant is in violation of Title III of the ADA because the Subject ATM is inaccessible to the blind. (Id. at ¶¶ 15, 17.) Plaintiffs also allege that Defendant’s entire network of ATMs does not comply with the 2010 Standards. (Id. at ¶ 48.) Plaintiffs seek class certification to challenge Defendant’s alleged system-wide ADA violations, a declaration that Defendant’s ATMs violate federal law, and an injunction requiring Defendant to update or replace its ATMs so that they are fully accessible to and independently usable by blind individuals. (Id. at ¶ 18.) Defendant filed a Motion to Dismiss the Amended Complaint on December 14, 2012. (Def’s Mot., ECF No. 12.) Plaintiffs filed a Response in Opposition to the Motion on January 4, 2013. (Pl.’s Opp’n, ECF No. 16.)


Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When considering such a motion, the district court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Allegations that constitute legal conclusions are “not entitled to the assumption of truth” and must be discounted by the Court. Iqbal, 556 U.S. at 679. A complaint that only alleges entitlement to relief but does not allege any facts to show this entitlement must be dismissed. Grant Mfg. & Alloying, Inc. v. Recycle is Good LLC, No. 11-3115, 2012 WL 3205514, at *3 (E.D. Pa. Aug. 7, 2012). However, a complaint should not be dismissed just because it seems implausible that the plaintiff can prove those facts. Leisure v. Pa. Dept. of Child Youth Servs., No. 10-07565, 2012 WL 1080142, at *2 (E.D. Pa. Mar. 30, 2012).


Title III of the ADA proscribes discrimination by places of public accommodation, and provides as follows: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a).

In support of its Motion, Defendant argues that Plaintiffs’ Amended Complaint is deficient and must be dismissed. Specifically, Defendant contends that Plaintiffs’ allegations of temporary technological malfunctions of the Subject ATM are not sufficient to support their claim for injunctive relief under the ADA. Defendant also contends that Garner and Blind Ambitions each lack standing to bring this lawsuit. In response, Plaintiffs argue that they have sufficiently pled a discrimination claim under the ADA, and that both Garner and Blind Ambitions have standing.

A. Discrimination Claim Under the ADA

Defendant first argues that Plaintiffs have failed to adequately plead that Defendant discriminated against Garner on the basis of his disability because Plaintiffs’ claim is based on Garner visiting one ATM that was temporarily malfunctioning on one occasion. To establish a prima facie case of discrimination under the ADA, a plaintiff must prove that: (1) he was discriminated against on the basis of disability; (2) in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation; (3) by any person who owns or operates ...

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