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Suchenko v. Ecco USA, Inc.

United States District Court, W.D. Pennsylvania

August 2, 2018

ANTOINETTE SUCHENKO, Plaintiff,
v.
ECCO USA, INC., Defendant. ANTOINETTE SUCHENKO, Plaintiff,
v.
HOLDINGS ACQUISITION CO., L.P., Defendant.

          MEMORANDUM OPINION AND ORDER OF COURT

          Arthur J. Schwab, United States District Court Judge.

         Before the Court is a Motion to Dismiss for failure to state a claim and Brief in Support of same filed by Defendant Holdings Acquisition Co, L.P. Doc. no. 75 and doc. no. 76. Plaintiffs filed a Brief in Opposition. Doc. no. 81. The Defendant's Motion will be DENIED for the reasons set forth below.

         I. Standard of Review - 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.

         II. Discussion

         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.

         Defendant identifies the lead Plaintiff as a “serial website tester” with at “least thirteen (13) active cases in the Western District of Pennsylvania.” Defendant notes that the instant case appears “to be yet another cookie cutter Complaint [where] she alleges that www.riverscasino.com, www.riverscasinoandresort.com and www.sugarhousecasino.com fail to comply with the ADA.” Thus, this Court deduces that Defendant operates the three aforementioned websites.

         Defendant essentially argues that Plaintiffs' Complaint must be dismissed because the DOJ has never issued implementing regulations for website accessibility. Defendant reasons that because the DOJ has failed to implement regulations for website activity, the Plaintiff cannot sufficiently plead an ...


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