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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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Docket No: 1:18-cv-07953-KPF

EDWIN DIAZ, on behalf of himself and

all others similarly situated,

Plaintiffs,

v.

THE KROGER CO.,

Defendant.

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PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS

By: Joseph H. Mizrahi, Esq.

[email protected]

Cohen & Mizrahi LLP

300 Cadman Plaza West, 12th Floor

Brooklyn, New York 11201

Tel: (929) 575-4175

Attorneys for Plaintiff

Case 1:18-cv-07953-KPF Document 30 Filed 03/04/19 Page 1 of 24

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TABLE OF CONTENTS

I. INTRODUCTION ……………………………………………………………..…………6

II. STATEMENT OF FACTS …………………………………………………..………….. 7

III. STANDARD OF REVIEW……..………………………………………………..………..8

a. Legal Standard: Rule 12(b)(1) Motion to Dismiss ……………………………..……....8

b. Legal Standard: Rule 12(b)(2) Motion to Dismiss ………………………………….…9

IV. ARGUMENTS

a. THE PLAINTIFF’S CLAIMS ARE NOT MOOT BECAUSE ALTHOUGH

DEFENDANT MAY HAVE INSTITUTED REMEDIATION PROCEDURES, IT HAS

FAILED TO AFFIRMATIVELY PROVE, VIA CORROBORATING AFFIRMATION

THAT THE WEBSITE IS AND WILL REMAIN ADA COMPLIANT

i. Defendant Failed to Satisfy Its Formidable Burden of Proof……………..10

ii. Mere Plans Do Not Moot An ADA Case……………………………....…11

iii. Website ADA Cases Cannot Be Mooted…………………………....……12

iv. The Requested Relief Included That Defendant Not Only Ensure

The Websites Compliance in the Present; But to Continuously

Maintain Its Website to Ensure it Remains Compliant…………..……….13

v. Defendant’s Mootness Claim is Premature……………………….………14

b. THIS COURT HAS PERSONAL JURISDICTION OVER KROGER

PURSUANT TO C.P.L.R. §§ 302(a)(1)

i. Legal Standard – Prima Facie Showing …………………….…………....15

ii. Defendant’s Interactive Website Subjects Defendant to this

Court’s Personal Jurisdiction……………………………………………..16

iii. Defendant’s New York Contacts – CPLR § 302(a)(1)…… ……………..18

iv. The Due Process Clause Supports The Court's Exercise Of Personal

Jurisdiction Over Defendant……………………..………………………19

c. THIS COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS

BECAUSE PLAINTIFF HAS STANDING TO BRING THIS ACTION

i. The Complaint Pled an Injury-In-Fact…………………………………...19

ii. Plaintiff’s Number of Lawsuits Is Irrelevant to Plaintiff’s Standing…….22

V. CONCLUSION ………………………………………………………………..………...24


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TABLE OF AUTHORITIES

Cases Page(s)

Adams v. Capko, Capko & Griffith, LLC.,

2015 U.S. Dist. LEXIS 160021 (W.D. Mis. Nov. 30, 2015) ……………………..…………......22

American Eyewear, Inc. v. Peeper’s Sunglasses and Accessories, Inc.,

106 F.Supp.2d 895, 901-05 (N.D. Tex. 2000) ………………………………………….……......17

Amidax Trading Group v. S.W.I.F.T. SCRL,

71 F.3d 140, 145 (2d Cir. 2011) …………………………………………...……………….……...9

Andrews v. Blick Art Materials, LLC,

(E.D.N.Y. Aug. 1, 2017) ………………………………………………………………................6

APWU v. Potter,

343 F.3d 619 623 (2d Cir. 2003) …………………………………………………………...……..9

Ball v. Metallurgie Hoboken-Overpelt, S.A.,

902 F.2d 194, 197 (2d Cir. 1990) ……………………………………………………………..…15

Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,

171 F.3d 779, 787 (2d Cir. 1999) ……………………………………………….………..............19

CompuServe, Inc. v. Patterson,

89 F.3d 1257 (6th Cir. 1996) ……………………………………………………………..……...17

Del-Orden v. Bonobos, Inc.,

2017 U.S. Dist. LEXIS 209251 (SDNY Dec. 20, 2017) …………………………………8, 11, 14

De La Rosa v. Lewis Foods of 42nd Street, LLC,

124 F. Supp. 3d 290 (S.D.N.Y. 2015) ...........................................................................................23

Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A.,

722 F.3d 81, 84 (2d Cir. 2013) …………………………………………………………………..10

Feltenstein v. City of New Rochelle,

254 F. Supp. 3d 647 (S.D.N.Y. 2017) ……………………………………………………………11

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167, 190 (2000) ……………………………………………………………………......12

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66, 71 (2013) …………………………………………………………………..……..8, 9

Giammatteo v. Newton,

452 Fed. App’x 24, 27 (2d Cir. 2011) ………………………………………………………….....9


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(Continued)

Gniewkowski v. Lettuce Entertain You Enters., Inc.,

251 F. Supp. 3d 908, 918 (W.D. Pa. 2017) ……………………………….…………......21, 22, 23

Haynes v. Hooters of Am., LLC.,

893 F.3d 781, 784 (11th Cir. 2018) ………………………………………………………………14

Haynes v. Interbond Corp. of America,

2017 WL 4863085, at *2 (S.D. Fla. Oct. 16, 2017) …………………………………….……….23

Houston v. 7-Eleven, Inc.,

13-60004, DE 85, at 2-3 (S.D. Fla. 1/31/2014) (Scola, J.) …………………….………………..13

Hsin Ten Enter. USA, Inc. v. Clark Enters.,

138 F.Supp.2d 449, 456 (S.D.N.Y. 2000) ………………………………………...……………..17

In re Terrorist Attacks on September 11, 2011,

714 F.3d 659, 673 (2d Cir. 2013) ……………………………………….……………………..…10

Makarova v. United States,

201 F.3d 110, 113 (2d Cir. 2000) ……………………………………………………….……...8, 9

Markett v. Five Guys Enters. LLC.,

2017 U.S. Dist. LEXIS 115212 (S.D.N.Y. July 12, 2017) …………………………….……12, 14

Metro. Life Ins. Co. v. Robertson-Ceco Corp.,

84 F/3d 560, 566 (2d Cir. 1996) ……………………………………………...………………9, 15

Nat’l Fed’n of the Blind v. Target Corp.,

582 F.Supp.2d 1185 (N.D.Cal. Sept. 28, 2007) ……………………………………………..…12

Natural Res. Def. Council v. Johnson,

461 F.3d 164, 171 (2d Cir. 2006)………………………………………………………….............9

Official Airline Guides, Inc. v. F.T.C.,

630 F.2d 920, 928 (2d Cir. 1980) ………………………………………….…………………….15

Packingham v. North Carolina,

582 U.S. ___, 137 S.Ct. 1730, 1736 (2017) ………………………………………………………6

Shipping Fin. Servs. Corps. V. Drakos

140 F.3d 129, 131 (2d Cir. 1998) ……………………………………………………………….....8

Sikhs for Justice v. Nath,

893 F. Supp. 2d 598, 622 (S.D.N.Y 2000) ……………………………………………...……….10


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(Continued)

Sigros v. Walt Disney World Co.,

129 F.Supp.2d 56 (D. Mass 2001) ……………………………………………..……………..….7

Sports Auth. Mich., Inc. v. Justballs, Inc.

97 F.Supp.2d 806, 814-16 (E.D. Mich. 2000) …………………………...……………………...17

Stomp, Inc. v. Neato, LLC.,

61 F.Supp.2d 1078, 79 (C.D. Cal. 1999) ………………………….......…………………………17

Zippo Manuf. Co. v. Zippo Dot Com, Inc.,

952 F.Supp1119 (W.D.Pa.1997) …………………………………………………………….17, 18


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I. INTRODUCTION

While we now may be coming to the realization that the Cyber Age is a revolution of

historic proportions, we cannot yet appreciate its full dimensions and vast potential to alter how

we think, express ourselves, and define who we want to be. The forces and directions of the internet

are so new, protean and far reaching that Courts must be conscious that what they say today may

be obsolete tomorrow. (Andrews v. Blick Art Materials, LLC, (E.D.N.Y. Aug. 1, 2017) (denying

the defendant’s Rule 12(b)(6) motion to dismiss plaintiff’s website accessibility claims) (quoting

Packingham v. North Carolina, 582 U.S. ___, 137 S.Ct. 1730, 1736 (2017).

Plaintiff, Edwin Diaz (“Plaintiff”) respectfully submits this Memorandum of Law in

Opposition to Defendant Kroger’s (“Defendant”) Motion to Dismiss Plaintiff’s First Amended

Class Action Complaint (“Complaint” or “Compl.”), pursuant to Fed.R.Civ.P. 12(b)(1) and

12(b)(2). The instant action was instituted as a result of Plaintiff being effectively denied equal

access to Defendant’s online store, and the goods and services offered to the public via its Website

“www.kroger.com” as a result of the numerous access barriers, encountered by Plaintiff on a

number of occasions in November, 2018, in violation of the rights guaranteed him under Title III

of the Americans with Disabilities Act, 42 U.S.C. §§ 12181 to 12189 (“ADA”), and New York

State Humans Rights Law, New York Executive Law Article 15, and New York City Human

Rights Law, N.Y.C. Admin. Code § 8-101 et seq.

Instead of using its time and resources to ensure all consumers can equally use and enjoy

its online marketplace, Defendant moves this Court to dismiss Plaintiff’s Complaint, arguing that

blind New York residents who cannot access the services of Defendant’s Website must effectively


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travel across the country and plead their case in Minnesota, Ohio, where Defendant’s principle

place of business is located.1

Defendant’s further allege they have “taken all the steps necessary to remediate their

Website, and/or “have already corrected the listed access barriers, and as such, the “[i]njunctive

relief Plaintiff seeks is no longer available, as the alleged issues have been remedied by Kroger.”

Finally, Defendant alleges that, “[P]laintiff failed to prove an injury-in-fact.”

II. STATEMENT OF FACTS

Established in 1883, Kroger has established a nationwide channel of distribution through

its Website (Kroger Ship), partnering with Ocado Solutions, 2 whose “purpose is to build a

seamless ecommerce system that allows Kroger to ship nationwide, serving all of America through

food inspiration and uplift.” (www.thekrogerco.com/newsroom). In fact, to ease the shopping

experience, for both online and in-store use, Kroger has also introduced a new mobile payment

application (Kroger Pay) and a Kroger’s Reward Debit Card, (a loyalty card option) – offering

consumers digital coupons and fuel points. 3 Kroger also has an online store at www.kroger.com,

which operates as a “virtual store,” where complete business transactions can be conducted solely

via the internet. Despite all of their accomplishments, Kroger has either intentionally or negligently

failed an entire class of U.S. citizens by their inaction – by ensuring that the approximate 7.3

1 Courts have condemned this approach towards Americans living with disabilities who seek to enforce their civil

rights. Sigros v. Walt Disney World Co., 129 F.Supp.2d 56 (D. Mass 2001) (rejecting corporate defendant’s attempt

to make disabled plaintiff litigate her ADA claim in Florida); Steir v. Girl Scouts of USA, 218 F.Supp.2d 58, 65

(D.N.H 2002) (rejecting corporate defendant’s attempt to make disabled plaintiff litigate her ADA claim in New

York). 2 Ocado is a UK based company admitted to trading on the London Stock Exchange (Ticker OCDO). It comprises

one of the world's largest dedicated online grocery retailers, operating its own grocery and general merchandise

retail businesses under Ocado.com and other specialist shop banners, together with its Solutions division.

(www.prnewswire.com/krogernews) (last visited Feb. 19, 2019) 3 (ir.kroger.com) (last visited Feb. 19, 2019)


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million sight-impaired citizens of the United States are effectively barred from taking advantage

of the services, accommodations and privileges of the Kroger entity. 4

Plaintiff, Edwin Diaz, a resident of the Bronx, New York, is a visually-impaired and legally

blind person, who requires screen-reading software to read website content using his computer.

Individuals with vision related disabilities rely on screen-reading software that converts online

content to an audio format. For this software to function, the information on a website must be

capable of being rendered to text. If it is not, a visually impaired consumer cannot access the same

information, products, and services contained on a website as non-visually impaired individuals.

Plaintiffs assert Defendant’s Website is not fully accessible to approximately 7 million

Americans who suffer from visual impairments. The individual Plaintiff asserts that he visited the

Websites on a number of occasions, the final time in November 2018, and personally encountered

access barriers that precluded his full and equal access to the goods and services the Website makes

available, and deterred the individual Plaintiff from attempting to use the Website.

III. STANDARD OF REVIEW

a. Legal Standard: Rule 12(b)(1) Motion to Dismiss

Under Fed. R. Civ. Pro. 12(b)(1) a Court may properly dismiss a claim for lack of subject

matter jurisdiction, “when the district Court lacks that statutory or constitutional power to

adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Article III, § 2 of the

United States Constitution limits the jurisdiction of the federal Courts to matters that present actual

“cases and controversies,” therefore, “an actual controversy must be extant at all stages of review.”

Del-Orden v. Bonobos, Inc., No. 17 Civ. 2744 (PAE) (SDNY Dec. 20, 2017), quoting Genesis

Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). “If an intervening circumstance deprives

4 (www.nfb.org/nfb/blindness_statistics) (last visited Feb. 9, 2019)


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the plaintiff of a personal stake in the outcome of the lawsuit at any point during litigation, the

action can no longer proceed and must be dismissed as moot.” Genesis, 569 U.S., at 72.

A plaintiff asserting subject matter jurisdiction has the burden of proving by a

preponderance of the evidence that jurisdiction exists.” Giammatteo v. Newton, 452 Fed. App’x

24, 27 (2d Cir. 2011) citing Makarova, 201 F.3d, at 113. “In resolving a motion to dismiss for lack

of subject matter jurisdiction, ‘the Court must take all facts alleged in the complaint as true and

draw all reasonable inferences in favor of plaintiff.’” Del-Orden, citing Natural Res. Def. Council

v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006). But “jurisdiction must be shown affirmatively” by

the plaintiff “and that showing is not made by drawing from the pleading inferences favorable to

the party asserting it.” Shipping Fin. Servs. Corps. V. Drakos, 140 F.3d 129, 131 (2d Cir. 1998);

see also APWU v. Potter, 343 F.3d 619 623 (2d Cir. 2003); Amidax Trading Group v. S.W.I.F.T.

SCRL, 671 F.3d 140, 145 (2d Cir. 2011). On a Rule 12(b)(1) motion to dismiss for lack of subject

matter jurisdiction, “[the] Court may consider evidence outside the pleadings, such as affidavits

and exhibits.” Del-Orden, citing Makarova, 201 F.3d, at 113.

b. Legal Standard: Rule 12(b)(2) Motion to Dismiss

“On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears

the burden of showing that the Court has jurisdiction over the defendant.” Metropolitan Life Ins.

Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996) (citing Robinson v. Overseas

Military Sales Corp., 21 F.3d 502, 507 (2d Cir.1994)). “In order to survive a motion to dismiss for

lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists.”

Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (quoting Licci ex rel.

Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 167 (2d Cir. 2013)). The plaintiff’s prima

facie showing “must include an averment of facts that, if credited by the ultimate trier of fact,


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would suffice to establish jurisdiction over the defendant.” In re Terrorist Attacks on September

11, 2011, 714 F.3d 659, 673 (2d Cir. 2013) (quoting Chloe v. Queen Bee of Beverly Hills, LLC,

616 F.3d 158, 163 (2d Cir. 2010) (internal quotation marks omitted)).

“Once a defendant has raised a jurisdictional defense on a Rule 12(b) motion to dismiss,

the plaintiff bears the burden of proving sufficient contacts with the relevant forum to establish

jurisdiction over each defendant.” Sikhs for Justice v. Nath, 893 F. Supp. 2d 598, 622 (S.D.N.Y.

2012). It is well-established that “in deciding a pretrial motion to dismiss for lack of jurisdiction a

district Court has considerable procedural leeway” and it “may determine the motion on the basis

of ... affidavits alone.” Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir.

2013) (citation omitted).

IV. ARGUMENTS

a. THE PLAINTIFF’S CLAIMS ARE NOT MOOT BECAUSE

ALTHOUGH DEFENDANT MAY HAVE INSTITUTED

REMEDIATION PROCEDURES, IT HAS FAILED TO

AFFIRMATIVELY PROVE, VIA CORROBORATING

AFFIRMATION THAT THE WEBSITE IS AND WILL REMAIN ADA

COMPLIANT

i. Defendant Failed to Satisfy Its Formidable Burden of Proof

A defendant claiming that its voluntary compliance moots a case bears a formidable burden

of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be

expected to recur. Already, LLC v. Nike, Inc., 658 U.S. 86, 91, 133 S.Ct. 721 (2013) Although

Defendant asserts that its Website is fully in compliance with the ADA, its sole evidence relied

upon is a mere Declaration of a Kroger employee (Andrew Whiting Affirmation), who has

everything to gain in his attempt to dissuade this Court from continuing this action, and is thus

completely unreliable. Pointedly, Defendant’s first filed Motion to Dismiss and Affirmation, failed

to assert that Defendant had remediated their Website, and it was not until the latter, instant


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dispositive Motion to Dismiss that Defendant now claims compliance with the ADA. In any event,

Plaintiff asserts that ADA website cases cannot be mooted under any circumstance.

ii. Mere Plans Do Not Moot An ADA Case

Courts have determined that defendants do not meet their significant burden to moot a case

when they are only in the process of fixing ADA violations. For example, Wu v. Jensen-Lewis Co.,

345 F.Supp.3dx 438 (S.D.N.Y. 2018) is instructive. In that case, the plaintiff, who was similarly

blind, instituted an ADA action against Jensen-Lewis, who is a retail company with brick and

mortar establishments in New York, and operates the website, www.Jensent-Lewis.com, and

alleged that “users can find information about store locations, hours of operation, the services

provided in its stores, special promotions, return policies, and shipping and delivery policies.” Id.

345 F.Supp.3d at 440-41. Months after the filing of the complaint, defendant filed a motion to

dismiss, claiming that it had “revamped its website, which contains entirely new code and new

functions, including the ability to electronically process sales.” Id.

In denying Jensen Lewis’ relief, the Court held that, “[T]he fact that Jensen-Lewis has a

new website is relevant only if the new website is ADA-compliant. Since Wu alleged the existence

of access barriers as of the time the Complaint was filed,” consequently, the Court determined,

“because the defendant has not shown that the "wrongful behavior has permanently ceased, Wu's

ADA claim is therefore not moot.” Id. 345 F.Supp.3d at 441. See, e.g., Feltenstein v. City of New

Rochelle, 254 F. Supp. 3d 647 (S.D.N.Y. 2017); and Del-Orden v. Bonobos Co., 2017 U.S. Dist.

LEXIS 209251 (S.D.N.Y. Dec. 20, 2017) (even one access barrier as of the time a Complaint is

filed is sufficient to preclude dismissal upon mootness grounds).

In Larkin v. Envoy Holdings LLC., 116 F.Supp.3d 1316, 1319 (M.D. Fla., 2015) (citing

Powell v. McCormack, 395 U.S. 486, 496 (1969)), on similar facts, the Court determined that


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[defendant's] assertion that it was, “presently working on fixing the ADA violations” was

insufficient to moot the case. Id. at 1319. (holding that “[t]he fact that Defendant is in the process

of fixing the violations does not render this case moot.”). Similarly, in Access For The

Disabled, Inc. v. Caplan, the Southern District of Florida rejected the argument that remediation

plans are a sufficient defense. In this regard, the Court stated, “[M]r. Caplan argues that because

he has undertaken steps to remove barriers to access at the [property], the plaintiffs' claims are

moot and should be dismissed. Mr. Caplan has submitted architectural plans to the City of Coral

Springs that would bring the parking lot into compliance. A claim for injunctive relief, however,

is moot only if “it is absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to occur,” and “a defendant claimant that its voluntary compliance moots a case bears

the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could

not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Environmental Services

(TOC), Inc. 528 U.S. 167, 190 (2000).

Finally, in Markett v. Five Guys Enters. LLC., 2017 U.S. Dist. LEXIS 115212 (S.D.N.Y.

July 12, 2017), the Court rejected the defendant’s comparable claim of mootness where Defendant

had been in the process of bringing its website into compliance as of the time the Complaint had

been filed. There, the Court held that “while defendant may be in the process of updating the

accessibility of its website, they have yet to successfully do so. Defendant has not established that

it [is] absolutely clear that the allegedly wrongful behavior could not reasonably be expected to

recur.” Id. 2017 U.S. Dist. LEXIS 115212, at *8.

iii. Website ADA Cases Cannot Be Mooted

Even assuming, arguendo, that the Defendant may bring it's website into compliance with

the applicable standards of the WCAG, this form of “voluntary cessation” is not the kind that can

be mooted. See Nat’l Fed’n of the Blind v. Target Corp. 582 F.Supp.2d 1185 (N.D.Cal. Sept. 28,


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2007) (cannot moot because of the “potential for new pages”). Indeed, websites are fluid. They

are constantly revised, updated and edited, with new pages being added and others being replaced

or deleted. This is due to changing technology, market conditions, updated coupons, business

announcements, specials, menu changes, product changes, service changes, new stores, and an

inexhaustive list of reasons for constant modification and alteration. A website that is compliant

one day may become completely non-compliant the next.

In Houston v. 7-Eleven, Inc., 13-60004, DE 85, at 2-3 (S.D. Fla. 1/31/2014) (Scola, J.), the

Court differentiated between communications barriers and structural changes. In its analysis, the

Houston Court reasoned, “[A]DA-architectural-barrier cases are a unique subset of voluntary-

cessation-doctrine cases; the nature of structural modifications (as opposed to simply a change in

a discriminatory policy) still satisfies the ultimate question that the voluntary-cessation doctrine

asks (i.e. is it absolutely clear that the allegedly wrongful behavior could not reasonably be

expected to recur).” Noting that, “[s]everal Courts have found that where structural modifications

have been undertaken to make the facility ADA compliant, the case is moot. The fundamental

rational supporting these cases is that the alleged discrimination cannot reasonably be expected to

recur since structural modifications permanently undo the offending conduct.” Houston v. 7-

Eleven, Inc., 13-60004, DE 85, at 2-3 (S.D. Fla. Jan. 2014) (Scola, J.).

As the Court held in 7-Eleven, ADA cases involving structural issues are fully

distinguishable from ADA cases involving non-structural forms of discrimination because

structural remediations are more permanent. Even if the District Court's rationale that structural

remediations are somehow irreversible, no such logic can be applied to websites.

iv. The Requested Relief Included That Defendant Not Only Ensure The

Websites Compliance in the Present; But to Continuously Maintain Its

Website to Ensure it Remains Compliant


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Whether or not Defendant's website becomes compliant during the course of this litigation,

Plaintiff remains entitled to injunctive relief requiring Defendant to maintain it in compliant

condition. Ample authorities have held that such injunctive relief is warranted, for structural and

non-structural violations. See e.g., Haynes v. Hooters of Am., LLC., 893 F.3d 781, 784 (11th Cir.

2018) (“[E]ven if Hooters website becomes compliant, Haynes seeks injunctive relief requiring

Hooters to maintain their website in a compliant condition. Thus, notwithstanding the fact … that

Haynes [has obtained] much of the relief requested, there is still a live controversy about whether

Haynes can receive an injunction to force Hooters to make its website ADA compliant or to

maintain it as such.”)

Additionally, Defendant’s admission that their efforts did not begin until after being made

aware of the instant suit, (“Since the inception of this lawsuit, Kroger, in good faith effort …”) and

recognizing the relevance of Lucia Markett v. Five Guys Enterprises LLC, No. 17-cv-788 (KBF)

(S.D.N.Y. July 21, 2017), and Del-Orden v. Bonobos, No. 17 Civ. 2744 (PAE), 2017 WL 6547902

(S.D.N.Y. Dec. 20, 2017) displays that Defendant has been well-aware of the ADA mandates in

effect since 1990, but chose their financial bottom-line over the disabled – until called to heed the

mandates of the ADA.

v. Defendant’s Mootness Claim is Premature

Finally, it is beyond dispute that this claim is premature because no exchange of discovery

or any other dispositive proceedings were conducted. As of the time the Complaint was filed,

Defendant’s Website contained a host of access barriers that prevented the “free and full use by

Plaintiff and blind persons using keyboards and screen reading software.” In their effort to dissuade

this Court from issuing the requested injunctive relief, Defendant includes a Declaration which

purports to affirm that the subject Website is remediated.


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However, Plaintiff asserts that the Declaration is irrelevant and insufficiently detailed to

ensure that the requested injunctive relief is now moot. In fact, faced with an assurance identical

to the one made by Defendant, in Official Airline Guides, Inc. v. F.T.C., 630 F.2d 920, 928 (2d

Cir. 1980), the Second Circuit held that a case is not moot even when a defendant agreed to, and

started to comply with the law because “quite plainly the mere cessation of illegal activity-even

when coupled with a promise to obey the law in the future-will not defeat the entry of a cease and

desist order.” Defendant’s promises in this case do nothing to ameliorate the violations that have

occurred and will occur until such time that the subject Website is remediated and remains so.

b. THIS COURT HAS PERSONAL JURISDICTION OVER KROGER,

PURSUANT TO C.P.L.R. §§ 302(a)(1)

i. Legal Standard – Prima Facie Showing

Under New York law, plaintiffs have the ultimate burden of establishing jurisdiction by a

preponderance of the evidence, either at an evidentiary hearing or at trial. Metro. Life Ins. Co. v.

Robertson-Ceco Corp., 84 F/3d 560, 566 (2d Cir. 1996) However, where the defendant challenges

"only the sufficiency of the plaintiff's factual allegation[s] . . . the plaintiff need persuade the Court

only that its factual allegations constitute a prima facie showing of jurisdiction. Ball v. Metallurgie

Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990) Prior to discovery, such a showing may

be made by “legally sufficient allegations of jurisdiction, and all pleadings and affidavits are

construed in light most favorable to plaintiff, and where doubts exist, are resolved in Plaintiff’s

favor. Metro. Life, 84 F.3d at 566; Hoffritz for Cutlery Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d

Cir. 1985).

According to Defendant, “Kroger is not subject to personal jurisdiction pursuant to New

York’s long-arm statute because Kroger does not engage in any of the activities enumerated in the

statute.” (citing C.P.L.R. § 302(a)) (Mtn. 10-11) As alleged by Defendant, “Kroger is an Ohio


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corporation, which is their principal place of business,” and that “the simple act of owning and

operating a website that can be accessed in New York does not create a substantial connection

with New York pursuant to New York’s long-arm statute.” Id. at 1 (citing to Freeplay Music, Inc.

v. Cox Radio, Inc., No. 04 Civ. 5238(GEL), 2005 WL 1500896, *6-7 (S.D.N.Y. June 23, 2005)

Additionally, Defendant alleges that, “[P]laintiff makes no credible allegation that Kroger

conducts commercial activity in New York State, and there is no evidence or allegation that Kroger

ever actually has directly shipped goods into the State of New York.” Id. at 11. Defendant

misconstrues the legal underpinnings of Jurisdiction, misstates the very nature of its Website, and

makes an outright false claim.

ii. Defendant’s Interactive Website Subjects Defendant to this Court’s

Personal Jurisdiction

Defendant operates an online store, www.kroger.com, which operates as a “virtual store,”

where complete business transactions can be conducted solely via the internet. A consumer may

access and amongst other features it offers, establish a Profile, scroll through the approximate

50,000 items listed of food and miscellaneous products offered therein, and request for the delivery

of such items, anywhere in the Continental United States, including New York State. The aspects

of Defendant’s Website lead to the only conclusion that it is “highly interactive,” in that the site is

not simply passive with information equally available to all who visit the site.

Rather, Defendant’s Website involves “contacts that illustrate purposeful availment of the

privilege of conducting commercial activity in the forum—contacts that tie the defendant to a

particular state, not those that merely link with equal strength the defendant to all states.” JB

Oxford Holdings, Inc. v. Net Trade, Inc., 76 F.Supp.2d 1363, 1367 (S.D.Fla.1999) (adopting the

rationale of Zippo, infra). Users must complete registration forms and must accept Defendant’s

terms of service, who then sends an email to the user containing a hyperlink through which


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registration may be confirmed. Once registered, users are directed to information about the

delivery to the specific State, its cost for shipping and applicable taxes.

In fact, Defendant’s established its “Kroger Ship” aspect solely to offer its products to

consumers within States who did not have physical establishments. By accepting consumers

Orders from New York, communicating directly with New York users, providing information

specifically about New York’s sales tax and shipping information, and soliciting advertisement

revenue from its users, including those in New York among other things, Defendant has

“purposefully availed” itself of doing business in New York.

Various Courts have generally found that the activity displayed by Defendant’s Website

acts as a projection into a forum state as sufficient to confer jurisdiction. Hsin Ten Enter. USA,

Inc. v. Clark Enters., 138 F.Supp.2d 449, 456 (S.D.N.Y. 2000); American Eyewear, Inc. v.

Peeper’s Sunglasses and Accessories, Inc., 106 F.Supp.2d 895, 901-05 (N.D. Tex. 2000); Sports

Auth. Mich., Inc. v. Justballs, Inc., 97 F.Supp.2d 806, 814-16 (E.D. Mich. 2000); EuroMarket

Designs, Inc. v. Crate & Barrel, Ltd., 96 F.Supp.2d 824, 838 (N.D. Ill. 2000); and Stomp, Inc. v.

Neato, LLC., 61 F.Supp.2d 1078, 79 (C.D. Cal. 1999); and CompuServe, Inc. v. Patterson, 89

F.3d 1257 (6th Cir. 1996).

In fact, the predicates here are analogous to those in Zippo Manuf. Co. v. Zippo Dot Com,

Inc., 952 F.Supp1119 (W.D.Pa.1997), in which the Court concluded after a review of the available

authority and commentaries that, “the likelihood that personal jurisdiction can be constitutionally

exercised is directly proportionate to the nature and quality of commercial activity that an entity

conducts over the Internet.” Id. at 1124. Thus, the Court described the appropriate “sliding scale”

analysis as follows:


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At one end of the spectrum are situations where a defendant clearly does business over the

Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that

involve the knowing and repeated transmission of computer files over the Internet, personal

jurisdiction is proper. At the opposite end are situations where a defendant has simply

posted information on an Internet Web site which is accessible to users in foreign

jurisdictions. A passive Web site that does little more than make information available to

those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The

middle ground is occupied by interactive Web sites where a user can exchange information

with the host computer. In these cases, the exercise of jurisdiction is determined by

examining the level of interactivity and commercial nature of the exchange of information

that occurs on the Web site.

Id. (internal citations omitted)

Thus, the highly interactive nature of Defendant’s Website, alone, establishes jurisdiction

based on its extensive internet activity, which “is directly proportionate to the nature and quality

of the commercial activity that an entity conducts over the Internet.” Gather, Inc. v. Gatheroo,

LLC, 443 F. Supp.2d 108, 115 (D. Mass. 2006) (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc.,

952 F. Supp. 1119, 1124 (W.D. Pa. 1997)); see also Acushnet Co., 155 F. Supp. 3d at 102–

03; Sportschannel New Eng. Ltd. Partn. v. Fancaster, Inc., 2010 WL 3895177, at *5 (D. Mass.

Oct. 1, 2010).

iii. Defendant’s New York Contacts – CPLR § 302(a)(1)

It is undisputed that Defendant is a non-domiciliary, as it is an Ohio corporation with its

principal place of business in Cincinnati, Ohio. Under the “doing-business” test of the forum State,

New York in this case, Section 302(a)(1) extends the jurisdiction of the New York state Courts to

a nonresident who "purposely availed [himself] of the privilege of conducting activities within

New York and thereby invoked the benefits and protections of its laws." Jurisdiction is established

under Section 302(a)(1) where (i) the defendant has transacted business within the state, and (ii)

the claim arises out of that activity. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,

171 F.3d 779, 787 (2d Cir. 1999). “Transacting business” under § 302 requires only a minimal


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quantity of activity, provided that it is of the right nature and quality.” Manhattan Life Ins. Co. v.

A.J. Stratton Syndicate, 731 F.Supp. 587, 592 (S.D.N.Y. 1990) A single transaction would be

sufficient to fulfill the requirement, even where the defendant does not enter the state. Bank

Brussels, 171 F.3d at 787. Such activity may also include the operation of an Internet website.

iv. The Due Process Clause Supports The Court's Exercise Of Personal

Jurisdiction Over Defendant

The Second Circuit has summarized the due process requirements for exercising personal

jurisdiction over a foreign defendant:

The Due Process Clause of the Fourteenth Amendment permits a state to exercise personal

jurisdiction over a non-resident defendant with whom it has "certain minimum contacts . .

. such that the maintenance of the suit does not offend 'traditional notions of fair play and

substantial justice.'" In determining whether minimum contacts exist, the Court considers

"the relationship among the defendant, the forum, and the litigation." To establish the

minimum contacts necessary to justify "specific" jurisdiction the plaintiff first must show

that [its] claim arises out of or relates to defendant's contacts with the forum state. The

plaintiff must also show that the defendant "purposefully availed" [itself] of the privilege

of doing business in the forum state and that the defendant could foresee being "haled into

Court" there.

Chew v. Dietrich, 143 F.3d 24, 28 (2d Cir. 1998)

In this case, Defendant’s interactive Website advertises to New York residents, and in fact,

sold products to at least one known New York resident. By virtue of these business activities in

New York, Defendant has purposely availed itself of the privilege of conducting business in New

York and should have reasonably anticipated being sued here. Thus, the exercise of jurisdiction

over Defendant does not offend traditional notions of fair play and substantial justice.

c. THIS COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS

BECAUSE PLAINTIFF HAS STANDING TO BRING THIS ACTION

i. The Complaint Pled an Injury-In-Fact

Defendant last argues that Plaintiff lacks Standing, “because he cannot prove any concrete

harm.” According to Defendant, this is so because, “P]laintiff is not dependent upon Kroger for


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delivery of groceries to New York.” The Defendant’s conception of a cognizable “injury” under

the ADA mistakes the statute's forest for its trees, by focusing on individual services that are

available on the Website, instead of equal access to all of the services, accommodations and

privileges offered by places of public accommodation. Moreover, Defendant unavailingly argues

that Plaintiff is not seeking redress from the Courts, by virtue of being a “serial plaintiff.” (Mtn.

18) Defendant’s claims are as fleeting as the wind.

Specifically, an ADA plaintiff suffers a legally cognizable injury under the ADA if he is

“discriminated against on the basis of disability in the full and equal enjoyment of the goods,

services, [or] facilities ... of any place of public accommodation.” 42 U.S.C. § 12182(a). This

experience of discrimination confers standing to seek the remedy provided by the ADA—an

injunction to correct the other, albeit unencountered, barriers that will subject a wheelchair-bound

individual like Plaintiff to future discrimination, provided that the threat of such discrimination is

real and immediate.

The First Amended Complaint describes several of the access barriers that Plaintiff

encountered. (Am. Compl. ¶¶ 29, 31, 33, 35). These barriers have prevented him from further

attempting to use the Website.” Id. ¶ 38. Despite the barriers that exist today, Plaintiff still “would

like to, and intends to, access Kroger’s Website in the future, in order to conduct online shopping

for delivery. Id. Plaintiff further asserts “Kroger has never had a plan or policy that is reasonably

calculated to make its Website fully accessible to, and independently usable by, individuals with

vision related disabilities. As a result, the complained of access barriers are permanent in nature

and likely to persist.” Id. ¶ 40.

The Western District of Pennsylvania addressed the issue of whether the plaintiffs’ pled an

injury-in-fact, in two very similar Title III website accessibility cases, consolidated at Lettuce


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Entertain You, 2017 WL 1437199 (W.D. Pa. Apr. 21, 2017). There, various plaintiffs brought

claims against AmeriServ Financial Bank (a bank) and Churchill Downs Incorporated (a sports

and gaming operator). Both defendants argued that plaintiffs “did not allege that they suffered an

‘injury in fact,’ meaning ‘concrete and particularized’ harm that is ‘actual or imminent’ in order

to maintain standing.” Id. at *3. The Court disagreed with both of the defendants, finding as to the

bank:

This Court finds that Plaintiffs have sufficiently established that they have sustained

an injury in fact. Specifically, Plaintiffs suffered “an invasion of a legally protected

interest which is concrete, particularized, and actual.” The Court finds that because

Ameriserv's website barred Plaintiffs' screen reader software from reading the

content of its website, Plaintiffs were unable to conduct on-line research to compare

financial services and products; and this constitutes an injury-in-fact under Article

III of the ADA.

Id. at 4.

And as to the sports and gaming operator:

[T]he Court finds that these allegations sufficiently establish that the individual

Plaintiffs have sustained an injury in fact. Specifically, Plaintiffs suffered “an

invasion of a legally protected interest which is concrete, particularized, and

actual.” Defenders of Wildlife, 504 U.S. at 560–61, 112 S.Ct. 2130. The Court finds

that because Churchill's websites barred Plaintiffs' screen reader software from

reading the content of its websites, Plaintiffs were unable to participate in the

gaming and entertainment services provided by Churchill. Moreover, this website

impediment purportedly has had a negative impact on Plaintiffs' ability to frequent

Churchill's brick and mortar locations as well. This constitutes an injury-in-fact

under Article III of the ADA.

Id. at 9.

As in Lettuce Entertain You, here the individual Plaintiffs encountered digital access

barriers at Kroger’s Website (Amended Compl. ¶¶ 30, 32, 34, 36) and have sufficiently asserted


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an intent to return to these particular places of injury (i.e. the Website) (Id. ¶ 38) even though

barriers remain (Id. ¶ 40) and deter their patronage (Id. ¶ 38). Nothing more is required.

ii. Plaintiff’s Number of Lawsuits Is Irrelevant to Plaintiff’s Standing

Labeling Diaz as a “Wandering Plaintiff in a forest,” one day to stumble upon a website

he could actually use and gain an advantage,” is rhetorical and extremely contentious

considering the case law. Various Courts have recognized that, “[P]rivate litigation serves as an

important means to enforce the public policy behind the civil rights statutes such as the ADA

and in fact, have acknowledged that “serial litigants” serve a valuable purpose as private attorney

generals ensuring that the ADA yields its promises of equal access to disabled persons.” Adams

v. Capko, Capko & Griffith, LLC., 2015 U.S. Dist. LEXIS 160021 (W.D. Mis. Nov. 30, 2015)

(citing various authority).

In this case, Defendant takes issue with the merits of the suit, alleging that they now

comply with the ADA, despite having had a decade of advance notice of its applicability to its

corporation and Website. Yet, their professed claim of compliance is directly contradicted by

the present allegations, under the guise of Standing. Defendant now claims that Plaintiff could

not have been injured from encountering its inaccessible website because, in relevant part,

“Plaintiff has filed 50 actions in the Southern District of New York. (Mtn. 16-17) and that

utilization of their Website would not “aid Plaintiff” in any event.

Defendant speciously claims that “Plaintiff is not dependent on Kroger for delivery of

groceries to New York, because those same groceries Plaintiff allegedly seeks, he is able to get

from more local retailers that are in the State of New York,” which would be ultimately more

economical. Id. (Mtn. 17. However, in a recent decision in response to an identical argument,

the Hon. Schwab, J., in Gniewkowski v. Lettuce Entertain You Enters., Inc., 251 F. Supp. 3d 908,


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918 (W.D. Pa. 2017), held that the fact a plaintiff is a frequent filer, “[i]s wholly irrelevant to a motion

for dismissal under either Rule 12(b)(6) or 12(b)(1).” The defendant in Gniewkowski argued

that because “plaintiff’s counsel had filed over 40 cases in the past two (2) years asserting the

same claims against a number of different businesses with websites” it did not have standing to

sue. The Court disagreed and reasoned that each case must be taken upon its own merits. (citing

Haynes v. Interbond Corp. of America, No. 17-CIV-61074, 2017 WL 4863085, at *2 (S.D. Fla.

Oct. 16, 2017).

In fact, although the Court in De La Rosa v. Lewis Foods of 42nd Street, LLC, 124 F.

Supp. 3d 290, 293 n.5 (S.D.N.Y. 2015) granted defendant’s motion to dismiss, the issue of

whether a plaintiff, who files numerous comparable ADA suits, would be held to a higher

standard – which Kroger seemingly contends, was decided in favor of the plaintiff. There, the

Hon. Caproni, J., definitively stated, “[T]hat fact does not affect the Court’s analysis—it is by no

means difficult to imagine that a wheel-chair bound New York City resident encounters illegal

barriers to access at many places of public accommodations on a regular basis or that such person

would continue to use the attorney with whom she has a relationship when trying to make New

York more accessible for all.” Id. 124 F. Supp.3d at 293 n.5 (stating that the fact that the ADA

plaintiff is a “frequent filer” who is a plaintiff in dozens of cases “does not affect the Court’s

analysis”).

Although Plaintiff in this case does not, by allegation within the Complaint or personal

Affirmation claim “Tester” status, the U.S. Supreme Court has, in fact, specifically endorsed

plaintiff “testers” especially in the discrimination context. See Havens Realty Corp. v. Coleman,

455 U.S. 363, 374, 102 S. Ct. 1114 (1982); id. at 373 (“As we have previously recognized, ‘[t]he

actual or threatened injury required by Art. III may exist solely by virtue of ‘statutes creating


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legal rights, the invasion of which creates standing . . . .’ ’ ”). Serial ADA litigation is not

improper. Multiple circuit Courts have expressly recognized that an ADA plaintiff’s litigation

history has no effect on his constitutional standing to sue and should not be considered on a

motion to dismiss. 5

V. CONCLUSION

For the reasons set forth herein, it is respectfully submitted that Defendant’s motion to

dismiss must be denied in its entirety. Alternatively, Plaintiff respectfully requests that this Court

issue an Order to conduct a hearing as to Personal Jurisdiction, should the Court feel it necessitated,

and for such other and further relief as this Court may deem just and proper.

Respectfully Submitted,

COHEN & MIZRAHI LLP

By: /s/ Joseph H. Mizrahi

Joseph H. Mizrahi, Esq.

5 Civil Rights Educ. and Enforcement Center v. Hospitality Props. Trust, 867 F.3d 1093, 1096 (9th Cir.

2017) (holding that “a plaintiff has constitutional standing” even if “her only motivation for visiting a facility is to

test it for ADA compliance”); id. at 1102 (“We . . . conclude that motivation is irrelevant to the question of standing

under Title III of the ADA. The Named Plaintiffs’ status as ADA testers thus does not deprive them of standing.”);

id. at 1101-02 (noting that 42 U.S.C. § 12182(a) states that “[n]o individual shall be discriminated against on the

basis of disability” and noting that Title III provides remedies for “any person” subjected to illegal disability

discrimination as stated in 42 U.S.C. § 12188(a)(1)) (emphasis in original); Colorado Cross Disability Coalition v.

Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (“anyone who has suffered an invasion of the legal

interest protected by Title III may have standing, regardless of his or her motivation in encountering the invasion”);

id. at 1216 (“a plaintiff’s status as tester is irrelevant in determining whether she has suffered an injury in fact under

Title III of the ADA.”); Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1330–40 (11th Cir. 2013) (finding

the plaintiff’s tester motive behind his visit to supermarket did not foreclose standing for his claim under Title III

of the ADA); id. at 1332 (“The substantive right conferred by [the ADA] statute is to be free from disability

discrimination in the enjoyment of the facility, regardless of [plaintiff’s] motive for visiting the facility.”); id.

Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1069 (9th Cir. 2009) (“we accord standing to individuals who sue

defendants that fail to provide access to the disabled in public accommodation as required by the Americans with

Disabilities Act (“ADA”), even if we suspect that such plaintiffs are hunting for violations just to file lawsuits.”)

(Gould, J., concurring) (emphasis added).


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