United States District Court, D. Massachusetts
LISA GATHERS, R. DAVID NEW, et al., Plaintiffs,
1-800-FLOWERS.COM, INC., Defendant.
MEMORANDUM AND ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
allege that Defendant 1-800-Flowers.com, Inc., violates Title
III of the Americans with Disabilities Act
(“ADA”) by not making its websites sufficiently
accessible to blind and visually-impaired consumers.
Plaintiffs seek a permanent injunction compelling Defendant
to bring its websites into compliance with the requirements
of the ADA, by, among others things, requiring Defendant to
comply with Version 2.0 of the Web Content Accessibility
Guidelines developed by the Worldwide Web Consortium. Compl.
8; 18-19 [#20]. Plaintiffs also seek a declaratory judgment
that at the time of the commencement of the action, Defendant
was in violation of the ADA, and payment of costs and
reasonable attorney's fees. Defendant has moved to
dismiss the Amended Complaint
(“Complaint”) [#20] pursuant to both Federal
Rules of Civil Procedure 12(b)(6) and 12(b)(1), arguing,
among other things, that Plaintiff improperly seeks to impose
liability for Defendant's failure to follow voluntary
standards for web accessibility that do not have the force of
law. Mot to Dismiss Pls. Am. Compl. [#26]. For the reasons
that follow, the motion is DENIED.
ruling on a motion to dismiss, whether for failure to state a
claim or lack of standing, the court must accept the
plaintiffs' well-pleaded factual allegations and draw all
reasonable inferences in the plaintiffs' favor. See
Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524
F.3d 315, 320 (1st Cir. 2008) (Rule 12(b)(6)); Blum v.
Holder, 744 F.3d 790, 795 (1st Cir. 2014) (Rule
12(b)(1)). To survive a motion to dismiss for failure to
state a claim, a complaint must contain sufficient facts
“to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The court “draw[s] the facts primarily
from the complaint, ” and “may supplement those
factual allegations by examining ‘documents
incorporated by reference into the complaint, matters of
public record, and facts susceptible to judicial
notice.'” Butler v. Balolia, 736 F.3d 609,
611 (1st Cir. 2013) (quoting Haley v. City of Bos.,
657 F.3d 39, 46 (1st Cir. 2011)).
III prohibits discrimination on the basis of disability in
the full and equal enjoyment of the goods and services of any
place of public accommodation. The ADA specifically requires
Title III entities to “take such steps as may be
necessary to ensure that no individual with a disability is
excluded, denied services, segregated, or otherwise treated
differently than other individuals because of the absence of
auxiliary aids and services.” 42 U.S.C. §
Access Now, Inc. is a national disability rights
organization. Am. Compl. (“Compl.”) ¶¶
14-18. Individual Plaintiffs Lisa Gathers, R. David New, and
Stephen Theberge allege that they are all legally blind
individuals who access the Internet using auxiliary aids
known as screen readers, which convert a website's text,
buttons, and links to audio. Id. ¶¶ 5,
19-21, 30, 32, 34 [#20]. Defendant owns and operates sixteen
websites, including 1-800-Flowers.com, which sell various
products and offer services to consumers. Id.
plaintiffs allege that they have tried to access websites run
by Defendant using screen readers but have discovered myriad
barriers that prevent them access. Id. ¶¶
29-34. For example, plaintiffs allege that, among other
things, the following problems arose when navigating one or
more of the websites owned and operated by Defendant:
• Buttons are missing labels describing their action to
a screen reader user;
• Error messages generated during the placement of
orders are difficult for a screen reader to locate and read;
• Multiple audio streams automatically begin playing
simultaneously on the customer support page, making it
impossible to determine what any feed is saying;
• Images of items for sale on many of Defendant's
websites do not provide any written description that a screen
reader program can read aloud to describe the pictures;
• The screen reader is unable to “go back”
• The screen reader is unable to locate the correct
field in which to type ...