United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO
STAY OR DISMISS (DKT. NO. 23)
G. MASTROIANNI United States District Judge.
National Association of the Deaf and four named plaintiffs
(collectively, “NAD” or “Plaintiffs”)
bring this action against the President and Fellows of
Harvard College (collectively, “Harvard” or
“Defendants”) under Title III of the Americans
with Disabilities Act (“ADA”), 29 U.S.C.
§§ 12181-12189, and Section 504 of the
Rehabilitation Act of 1972 (“Section 504”), 29
U.S.C. § 794, alleging discrimination in the provision
of goods and/or services. Defendants moved to dismiss or, in
the alternative, to stay based on the doctrine of primary
case was assigned to District Judge Mastroianni, who referred
it to Magistrate Judge Robertson for a Report and
Recommendation (“R&R”) pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). Judge
Robertson issued her R&R (Dkt. No. 50), to which
Defendants timely filed objections (Dkt. No. 63). Having
reviewed the complaint, the original motion and opposition,
the R&R, Defendants' objections, and Plaintiffs'
response to Defendants' objections, the court adopts
Judge Robertson's recommendation in full for the reasons
set forth below.
ongoing effort to improve educational access, Harvard has
launched an online learning platform that allows members of
the public to engage with academic material not otherwise
available to them. The available curricula cover a wide range
of topics, including the arts, history, engineering,
organizational development, mathematics, religion, finance,
and medicine. Describing its reasons for launching these
online curricula, Harvard states it “has long been a
leader in providing access to innovative learning
opportunities” and that “[p]art of this
leadership includes taking advantage of new
technologies” to provide “people from around the
world increasing access to the breadth and depth of
Harvard's learning content.” About Page,
visited Nov. 11, 2016). Plaintiffs allege Harvard violates
the ADA and Section 504 by denying the deaf and hard of
hearing meaningful access to its online curricula by not
closed captioning all of its online audio and audiovisual
content. Compl. ¶ 2 (Dkt. No. 1). Harvard denies its
obligation to do so.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). In determining whether
a movant meets this standard, a federal court must
“constru[e] the well-pleaded facts of the complaint in
the light most favorable to the plaintiffs.”
Fortuña-Burset, 640 F.3d 1, 7 (1st Cir.
2011). “[A] plaintiff's factual allegations must be
sufficient to raise a right to relief above the speculative
level.” DeGrandis v. Children's Hosp.
Bos., 806 F.3d 13, 17 (1st Cir. 2015) (internal
quotation marks omitted). A plaintiff may not rely on
conclusory allegations that “simply mirror the legal
standard against which the complaint is to be tested.”
Ocasio-Hernández, 640 F.3d at 11 (quoting
Iqbal, 556 U.S. at 686).
requests the court stay the present action pending
publication of a formal rule governing website and online
video accessibility by the Department of Justice
(“DOJ”). Defendants cite the doctrine of primary
jurisdiction in support of their request. This doctrine
allows federal courts to stay litigation on issues better
suited for resolution by an administrative agency, in this
case the DOJ. The First Circuit uses the following three-part
test to determine whether application of the primary
jurisdiction doctrine is justifiable: (1) whether an agency
determination lies “at the heart” of a task
assigned by Congress to the agency; (2) whether agency
expertise is required to “unravel intricate, technical
facts”; and (3) whether the agency's determination
would materially aid the court. See Pejepscot Indus.
Park, Inc. v. Me. Cent. R.R. Co., 215 F.3d 195, 205 (1st
Cir. 2000). A court's invocation of primary jurisdiction
is discretionary. See Composite Co., Inc. v. Am.
Int'l Grp., Inc., 988 F.Supp.2d 61, 73 (D. Mass.
2013) (quoting Dolan v. Utica Mut. Ins. Co., 630
F.Supp 305, 308 (D. Mass. 1986)).
court agrees a stay based upon primary jurisdiction is not
necessary in this case. Adjudicating the scope of the ADA and
Section 504 is not “at the heart” of the task
assigned the DOJ by Congress; while the DOJ has power to
issue rules and regulations interpreting these statutes,
Congress had not granted it adjudicative power over the same.
Additionally, the court does not need the DOJ's technical
expertise to resolve the issue at hand. Federal courts are
experienced in interpreting the ADA and Section 504, and
statutory interpretation is routine practice. See
DOJ Statement of Interest at 2 (“For more than two
decades, federal courts have resolved effective
communications claims alleging unequal access to goods,
benefits, and services provided through websites or other
electronic media.”). Furthermore, the agency's
future rule will not materially aid the court. The court is
aware of the DOJ's opinion on the issues, having reviewed
the DOJ's Statement of Interest. Lastly, the court finds
staying this case impractical. The DOJ does not have a
projected date of issuance. Rather, it expects to issue its
rule “at some point in the future.” Id.
The court finds this indeterminate estimation insufficient to
warrant a stay.
Motion to dismiss
court to grant Harvard's motion to dismiss, Defendants
must show Plaintiffs' claims under the ADA and Section
504 are facially implausible. Harvard has not done so. To
state a plausible claim under either statute, Plaintiffs must
satisfy three claim elements. First, Plaintiffs must show
they are disabled and otherwise qualified to participate in
Harvard's online curricula. Next, Plaintiffs must
establish Harvard receives federal funding (for purposes of
Section 504) and is a public accommodation (for purposes of
the ADA). Finally, Plaintiffs must allege facts that,
considered in the light most favorable to NAD, tend to
suggest Harvard discriminated against Plaintiffs on the basis
of Plaintiffs' disability. NAD has satisfied all three
elements. As to the first, Plaintiffs are deaf or hard of
hearing, and qualified as members of the general public to
participate in Harvard's online offerings. As to the
second element, there is no doubt Harvard receives federal
funding and qualifies as a public accommodation under the
ADA. See 42 U.S.C. § 12181(7) (listing as
public accommodations “secondary, ...