United States District Court, W.D. Pennsylvania
J. Schwab United States District Judge.
Albris, Inc., filed a Motion to Dismiss the Complaint
(ECF 103) and Brief in Support (ECF 104)
arguing that this Court: (1) lacks subject matter
jurisdiction, and (2) that the Complaint failed to state a
claim upon which relief could be granted. See Fed.R.Civ.P.
12(b)(1) and Fed.R.Civ.P. 12(b)(6). Plaintiff opposed this
Motion (ECF 121), making the matter ripe for
Court, after careful consideration of the issues raised and
argued by both Parties, will deny the Motion to Dismiss for
the reasons set forth herein.
Court writes primarily for the benefit of the parties, and
thus, the factual background shall be truncated.
a blind and/or visually impaired individual, brought this
action against Defendant alleging that Defendant denied her
equal access to its website, thereby violating the rights
guaranteed to her under Title III of the Americans with
Disabilities Act, 42 U.S.C. §§ 12181 to 12189
(“ADA”). Simply stated, Plaintiff claims
Defendant's website is not ADA compliant and she, as a
visually impaired person, is unable to utilize the
Defendant's Motion to Dismiss and Brief in Support,
Defendant first contends that “Plaintiff cannot as a
matter of law establish that Defendant's website is
indeed a place of public accommodation under Title III of the
ADA, as interpreted by the 3rd Circuit.” However, the
Court notes that Defendant primarily relies upon a decision
reached the United States Court of Appeals for the Third
Circuit in Ford v. Schering- Plough Corp., 145 F.3d
601 (3d Cir. 1998).
Gniewkowski v. Lettuce Entertain You Enterprises,
Inc., 251 F.Supp.3d 908 (2017), this Court considered
the very argument raised by Defendant in the instant matter,
and denied the Motion to Dismiss. The Gniewkowski
case is factually on all four corners with the instant
matter. For Defendant's edification, the Court will
restate the relevant portions of the Gniewkowski
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
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.'”