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Gniewkowski v. Lettuce Entertain You Enterprises, Inc.

United States District Court, W.D. Pennsylvania

April 21, 2017

RACHEL GNIEWKOWSKI, et al. Plaintiffs,
CHURCHILL DOWNS INCORPORATED, Defendant. LISA FRAZIER, ACCESS NOW, INC. a not-for-profit corporation, and, R. DAVID NEW, Plaintiffs,



         Before the Court is a Motion for Dismissal filed by Defendant, Churchill Downs Incorporated (“Churchill”), in accordance with Rule 12(b)(1) of the Federal Rules of Civil Procedure. Doc. no. 45. Plaintiff filed a Brief in Opposition (doc. no. 61), and Churchill filed a Reply to the Brief in Opposition. Doc. no. 63.

         Also before the Court, is a Motion for Dismissal filed by AmeriServe Financial Bank (“Ameriserve”), in accordance with Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Doc. no. 50. Plaintiff filed a Brief in Opposition (doc. no. 65), and AmeriServe filed a Reply to the Brief in Opposition. Doc. no. 75.

         These matters are now ripe for adjudication.


         A. Rule 12(b)(1)

         A Motion to Dismiss pursuant to Fed. R.Civ.P. 12(b)(1) challenges this Court's “very power to hear the case.” See Judkins v. HT Window Fashions Corp., 514 F.Supp.2d 753, 759 (W.D. Pa. 2007) (Lancaster, J.) (quoting Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). As the party asserting jurisdiction, Plaintiff “bears the burden of showing that its claims are properly before the district court.” Dev. Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). In reviewing a Motion to Dismiss pursuant to Rule 12(b)(1), this Court must distinguish between facial attacks and factual attacks. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006).

         A facial attack challenges the sufficiency of the pleadings, and the Court must accept the Plaintiff's allegations as true. Id. A Defendant who attacks a complaint on its face “[asserts] that considering the allegations of the complaint as true, and drawing all reasonable inferences in favor of [plaintiff], the allegations of the complaint are insufficient to establish a federal cause of action.” Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa. 2001). Dismissal is proper under Rule 12(b)(1) only when “the claim clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or. . . is wholly insubstantial and frivolous.” Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).

         When, as in this case, a Defendant launches a factual attack on subject matter jurisdiction, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Petruska, 462 F.3d at 302 (quoting Mortenson, 549 F.2d at 891). In a factual attack, this Court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings. See United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).

         B. Rule 12(b)(6)

         In considering a Rule 12(b)(6) motion, Federal Courts require notice pleading, as opposed to the heightened standard of fact pleading. Fed.R.Civ.P. 8(a)(2) requires only “‘a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds on which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         Building upon the landmark United States Supreme Court decisions in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit explained that a District Court must undertake the following three steps to determine the sufficiency of a complaint:

First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).

         The third step requires this Court to consider the specific nature of the claims presented and to determine whether the facts pled to substantiate the claims are sufficient to show a “plausible claim for relief.” Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013). “While legal conclusions can provide the framework of a Complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 664.

         This Court may not dismiss a Complaint merely because it appears unlikely or improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits. Twombly, 550 U.S. at 563, n.8. Instead, this Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556. Generally speaking, a Complaint that provides adequate facts to establish “how, when, and where” will survive a Motion to Dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 212 (3d Cir. 2009).

         In short, a Motion to Dismiss should not be granted if a party alleges facts, which could, if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.


         Because the Court writes primarily for the benefit of the parties, the factual background shall be truncated. The Court assumes all facts set forth in the Complaints to be true solely for the purpose of deciding these Motions.

         Plaintiffs are blind or visually impaired individuals who claim Defendants' websites are not accessible to them in violation of the Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. Plaintiffs' Complaints against the two Defendants at issue (Churchill and AmeriServ), allege that a permanent injunction is necessary to ensure Defendant's websites will become, and will remain, accessible to Plaintiffs and other blind or visually impaired individuals.

         AmeriServ, as a federally-chartered bank, offers and advertises a full range of financial solutions and banking expertise to the general public through its website. See doc. no. 1, ¶ 13, in case no. 2:17-cv-00031. AmeriServ's principal place of business is located in Johnstown, Pennsylvania and AmeriServ owns and operates “brick and mortar” retail locations throughout Pennsylvania. Id.

         Churchill, a Kentucky corporation, owns, operates, and maintains the venue where the Kentucky Derby is held annually, as well as five other racetracks, six casinos, the country's leading online wagering business, a video poker business, a multi-state network of off-track betting facilities, a collection of racing-related data, and telecommunication companies that support its sports and gaming operations. See doc. no. 1, ¶ 13, in case no. 2:17-cv-00006. Churchill offers its website users the information they need to participate in its online gaming and betting platforms, such as information on handicapping, wagering, live odds, and calendars of events taking place at Churichill's physical locations. Churchill's website also helps users view and manage their rewards club membership and member benefits. Id. at ¶ 17.

         As noted above, both Churchill and AmeriServ have filed Motions to Dismiss the Complaint for a Permanent Injunction brought against each of them and their legal arguments will be discussed, collectively, below.


         A. Ameriserv's 12(b)(1) Argument

         AmeriServ first argues that Plaintiffs failed to sufficiently allege that they have standing to pursue this lawsuit. More specifically, AmeriServ contends that Plaintiffs did not allege that they suffered an “injury in fact, ” meaning “concrete and particularized” harm that is “actual or imminent” in order to maintain standing. Doc. no. 51, p. 5. AmeriServ also contends that none of the Plaintiffs can demonstrate a “real and immediate threat of future injury.” Doc. no. 51, p. 5.

         With respect to standing, the United States Supreme Court has held:

[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.] Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. ...

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