United States District Court, W.D. Pennsylvania
RACHEL GNIEWKOWSKI, et al. Plaintiffs,
LETTUCE ENTERTAIN YOU ENTERPRISES, INC, Defendant. LISA FRAZIER, ACCESS NOW, INC., R. DAVID NEW Plaintiffs,
CHURCHILL DOWNS INCORPORATED, Defendant. LISA FRAZIER, ACCESS NOW, INC. a not-for-profit corporation, and, R. DAVID NEW, Plaintiffs,
AMERISERV FINANCIAL BANK, Defendant.
J. SCHWAB, UNITED STATES DISTRICT JUDGE
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.
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.
matters are now ripe for adjudication.
STANDARD OF REVIEW
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).
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
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).
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
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
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).
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.
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).
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.
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.
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.
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.
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.
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.
Ameriserv's 12(b)(1) Argument
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.
respect to standing, the United States Supreme Court has
[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.