Suris v. Gannett Co., Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

YAROSLAV SURIS, : MEMORANDUM

: DECISION AND ORDER

Plaintiff, :

: 20-cv-1793 (BMC)

- against - :

:

GANNETT CO., INC. AND GANNETT :

SATELLITE INFORMATION NETWORK, :

INC., :

:

Defendants. :

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COGAN, District Judge.

This Americans with Disabilities Act (“ADA”) case is before me on defendants’ motion

to dismiss. Plaintiff is a legally deaf individual with a hearing disability as defined under the

ADA.1 42 U.S.C. § 12102(2). Plaintiff requires closed captioning to access audio and

audiovisual content. Defendants own, manage, control, and maintain the website for the

newspaper USA Today, with the online domain name www.usatoday.com (the “website”). The

website offers written news reports and video content on sports, life, money, technology, and

travel across its digital, social media, and blog platforms that supplement defendants’ printed

national newspaper. Plaintiff attempted to watch various videos on the website but was unable to

do so due to the videos’ lack of closed captioning. Plaintiff brought suit alleging that the

website’s inaccessibility violates the ADA.

In deciding a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, the Court must “constru[e] the complaint liberally, accept[] all factual allegations in

1 Unless otherwise noted, the below facts are taken from plaintiff’s complaint and assumed to be true for purposes of

this motion. See Kolbasyuk v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019).

the complaint as true, and draw[] all reasonable inferences in the plaintiff’s favor.” Elias v.

Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Chase Grp. All. LLC v. City of

New York Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010)). To survive a motion to dismiss, a

complaint must plead “enough facts to state a claim to relief that is plausible on its face,” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and to “allow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

Title III of the ADA provides that “[n]o 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). To

state a claim under this title, a plaintiff must allege that: (1) he is disabled within the meaning of

the ADA; (2) the defendant owns, leases, or operates a place of public accommodation; and (3)

the defendant discriminated against him by denying him a full and equal opportunity to enjoy the

services the defendant provides. See Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir.

2008). The parties do not dispute that plaintiff is disabled within the meaning of the ADA. At

issue is whether defendants own, lease, or operate a place of public accommodation.

Defendants contend that, as newspaper publishers and operators of a news website, they

do not operate a place of public accommodation. The term “public accommodation” is defined

under the ADA by an enumerated list of twelve categories of private entities. 42 U.S.C. §

12181(7); see 28 C.F.R. § 36.104, Appendix C (“In order to be a place of public accommodation,

a facility . . . must fall within one of these 12 categories.”). Examples include places of lodging,

places of entertainment, places of education, and sales establishments. Although a website is not

specifically listed among the categories, courts in this Circuit have held that a retailer’s website

may be covered by the Act. See, e.g., Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d

381, 393 (E.D.N.Y. 2017) (website of retail chain with brick-and-mortar stores must be

accessible under the ADA); Nat’l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, (D. Vt.

2015) (Title III of the ADA covers the website of a company without any physical locations).

The Second Circuit has not yet decided the issue, nor offered guidance on whether a website can

be a “public accommodation” if a defendant operated no physical space open to the public but

nevertheless provided goods or services to the public.

The case at hand does not concern the website of retailer, but rather the website of a

newspaper publisher. Plaintiff contends that defendants’ website is a place of exhibition and

entertainment, place of recreation, and service establishment. The categories of establishments

covered by Title III “should be construed liberally” in light of the Act’s legislative history

focused on affording persons with disabilities equal access to the wide variety of establishments

available to the nondisabled. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 676–77 (2001). But

even liberally construed, I cannot find that defendants’ website falls within any of these

categories.

Defendants, the website, and the goods and services provided therein are not a place of

exhibition and entertainment like that of “a motion picture house, theater, concert hall, [or]

stadium.” See 42 U.S.C. § 12181(7)(C). Nor are they a place of recreation like that of “a park,

zoo, [or] amusement park.” See id. at § 12181(7)(I). And they are by no means a service

establishment like that of “a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel

service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer,

pharmacy, insurance office, professional office of a health care provider, [or] hospital.” See id.

at § 12181(7)(F). Neither a newspaper publisher nor a digital media content provider falls within

any of the twelve enumerated places of public accommodation categories under the ADA. See

Treanor v. Wash. Post Co., 826 F. Supp. 568, 569 (D.D.C. 1993) (“[T]he ADA specifically lists

those private entities that constitute ‘public accommodations’ for purposes of coverage under the

ADA, and newspapers are not included.”); Stoutenborough v. Nat’l Football League, 59 F.3d

580, 583 (6th Cir. 1995) (the National Football League and associated media networks are not

places of public accommodation). As news website publishers or operators, defendants are also

“not sufficiently analogous” to any of the public accommodations listed in the statute to be

“deemed to be a public accommodation.” See Brown v. 1995 Tenet ParaAmerica Bicycle

Challenge, 959 F. Supp. 496, 498 (N.D. Ill. 1997) (organizing group for cycling event not

analogous to a place of public accommodation); Torres v. AT&T Broadband, LLC, 158 F. Supp.

2d 1035, 1037 (N.D. Cal. 2001) (provider of digital cable system not analogous to any of the

public accommodation categories).

Plaintiff points to defendants’ offices, video and television studios, blog facilities, live

event locations, internet and website businesses, newspaper publishing facilities,

telecommunication and advertising offices, and hosting locations, arguing that these physical

facilities operate “in conjunction with its website” and render defendants a place of public

accommodation. These various facilities owned and operated by defendants may support the

operation of its website, but “the mere fact that [services] [were] organized at the defendants’

offices, which presumably are places of public accommodation, is not a sufficient link to support

application of the ADA.” See Brown, 959 F. Supp. at 499.

Even construing the list of categories liberally, plaintiff has not sufficiently alleged that

defendants’ goods and services fall within one of the enumerated categories. Because I conclude

that defendants’ website is not a good or service of a place of public accommodation, the motion

to dismiss is granted.

SO ORDERED.

Digitally signed by

Brian M. Cogan

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U.S.D.J.

Dated: Brooklyn, New York

July 14, 2021