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In Toro, for example, the court relied on a “detailed declaration” submitted by the defendant's general manager outlining the audit process performed by the vendor hired to ensure that defendant's website was ADA-compliant.
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23-CV-6878 (AS) (JLC)
05-22-2024
LUIS TORO, Plaintiff, v. MEDBAR CORP., Defendant.
REPORT & RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
To the Honorable Arun Subramanian, United States District Judge:
Plaintiff Luis Toro has brought this action against defendant Medbar Corp. (“Medbar”) alleging that Medbar's website is inaccessible to blind and visually impaired people in violation of the Americans with Disabilities Act (“ADA”), New York State Human Rights Law (“NYSHRL”), New York State Civil Rights Law (“NYSCRL”), and New York City Human Rights Law (“NYCHRL”). Pending before the Court are Medbar's motions to dismiss Toro's amended complaint pursuant to Rules 12(b)(1) and 12(b)(2) of the Federal Rules of Civil Procedure. For the reasons set forth below, Medbar's 12(b)(1) motion to dismiss for lack of subject matter jurisdiction should be granted and its 12(b)(2) motion to dismiss for lack of personal jurisdiction should be denied as moot.
I. BACKGROUND
The following facts are taken from the amended complaint and assumed as true for purposes of the pending motions except where otherwise noted.
Toro is a visually-impaired and legally blind individual who resides in the Bronx, New York. Amended Complaint (“Am. Compl.”) ¶¶ 2, 15. Medbar is a Virginia-based corporation that sells a number of goods related to outdoor activities. Id. ¶¶ 17—18. In addition to maintaining brick and mortar locations, none of which is located in New York State, Medbar operates the website Richmondhondahouse.com (the “website”), from which consumers may purchase goods for delivery. Id. ¶ 18. Toro alleges that he visited the website on July 29, 2023, August 2, 2023, September 17, 2023, and October 17, 2023, during which he attempted but was unable to purchase a motorcycle helmet for a friend, as he could not navigate the website because it lacked sufficient accommodations for the visually-impaired. Id. ¶¶ 10, 36. Toro contends that despite the existence of “readily available accessible technology,” Medbar “has chosen to rely on an exclusively visual interface” that prevents blind and visually impaired individuals from using the website. Id. ¶¶ 7-8.
This information is found in the second of the two paragraphs numbered “15” in the amended complaint.
B. Procedural History
Toro filed the complaint on August 4, 2023. Dkt. No. 1. On August 8, 2023, this case was referred to me for general pretrial supervision and any dispositive motions. Dkt. No. 6. On October 11, 2023, following an extension, Medbar moved to dismiss the complaint pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction. Dkt. No. 14. In support, Medbar filed a memorandum of law. Dkt. No. 15. On October 26, 2023, the Court sua sponte extended Toro's deadline to respond to the motion to November 1, 2023. Dkt. No. 17. On November 2, 2023, Toro filed an amended complaint, and the Court directed Medbar to either renew its motion to dismiss, file a new motion to dismiss the amended complaint, or answer the amended complaint. Dkt. Nos. 18-19. On November 10, 2023, Medbar requested an extension of time to answer or otherwise respond to the pleading, which was granted. Dkt. Nos. 20-21.
On December 15, 2023, Medbar filed two motions to dismiss the amended complaint: a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure (Dkt. No. 22) and a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (Dkt. No. 24). Medbar also filed two memoranda of law in support of its motions. Defendant's Memorandum in Support of Motion to Dismiss Amended Complaint (“Def. PJ Mem.”), Dkt. No. 23 (addressing personal jurisdiction); Defendant's Memorandum in Support of Motion to Dismiss Amended Complaint (“Def. SMJ Mem.”), Dkt. No. 25 (addressing subject matter jurisdiction).Defendant also filed two declarations, the Declaration of Richard Upshur dated December 15, 2023 (“Upshur PJ Decl.”), Dkt. No. 23-1, and the Declaration of Richard Upshur dated December 15, 2023 (“Upshur SMJ Decl.”), Dkt. No. 25-1. Toro filed his memorandum of law in opposition to the motion to dismiss for lack of personal jurisdiction (“Pl. PJ Opp.”) on December 28, 2023. Dkt. No. 26.
It is not clear why Medbar filed two separate motions, rather than one motion that included both arguments for dismissal.
On January 4, 2024, Medbar filed its reply in support of its motion to dismiss for lack of personal jurisdiction (“Def. PJ Reply”). Dkt. No. 29. Following an extension, Toro then filed his opposition to Medbar's motion to dismiss for lack of subject matter jurisdiction (“Pl. SMJ Opp.”) along with the Declaration of Mars Khaimov dated January 18, 2024 (“Khaimov Decl.”) on January 24, 2024. Dkt. Nos. 30, 30-1. Medbar filed its subject matter jurisdiction reply papers (“Def. SMJ Reply”) on January 31, 2024. Dkt. No. 31.
II. DISCUSSION
Medbar argues that the Court should dismiss this case for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Alternatively, it argues that the Court should dismiss this case for lack of personal jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil Procedure. The Court will address each motion in turn.
A. Subject Matter Jurisdiction
1. Applicable Law
“Where defendant moves for dismissal for lack of subject matter jurisdiction, as well as on other grounds, the court should consider the subject matter jurisdiction challenge first since, if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.” Saint-Amour v. Richmond Org., Inc., 388 F.Supp.3d 277, 286 (S.D.N.Y. 2019) (quoting United States v. N.Y.C. Dep't of Hous., Pres. & Dev., 2012 WL 4017338, at *3 (S.D.N.Y. Sept. 10, 2012)). The Court will thus first evaluate Medbar's 12(b)(1) motion.
“Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b)(1) is proper when the district court lacks the statutory or constitutional power to adjudicate it.” Gelmart Indus., Inc. v. Everready Battery Co., Inc., No. 13-CV-6310 (PKC), 2014 WL 1512036, at *2 (S.D.N.Y. Apr. 15, 2014) (quoting Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009)). In deciding such a motion, the court construes the complaint in the plaintiff's favor and accepts all factual allegations as true. Id. However, “[j]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Ryan v. United States, No. 15-CV-2248 (GHW), 2015 WL 7871041, at *3 (S.D.N.Y. Dec. 3, 2015) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)).
In evaluating a Rule 12(b)(1) motion, “the Court may consider evidence outside the pleadings.” Id. “[P]laintiffs will need to come forward with evidence of their own to controvert that presented by the defendant if the affidavits submitted on a 12(b)(1) motion . . . reveal the existence of factual problems in the assertion of jurisdiction.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (quotation marks omitted). “However, the plaintiffs are entitled to rely on the allegations in the Pleading if the evidence proffered by the defendant is immaterial because it does not contradict plausible allegations that are themselves sufficient to show standing.” Id. Dismissals for lack of subject matter jurisdiction are without prejudice. See, e.g., Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1074 (2d Cir. 2021).
In order to show that a request for injunctive relief is moot on account of voluntary compliance and therefore the court lacks subject matter jurisdiction, the defendant must meet the “formidable burden” of demonstrating that it is “absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); see also Already, LLC v. Nike, Inc., 568 U.S. 85, 91-92 (2013); Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 110 (2d Cir. 2010). More specifically, “[t]he voluntary cessation of allegedly illegal activity may render a case moot ‘if the defendant can demonstrate that [i] there is no reasonable expectation that the alleged violation will recur and [ii] interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.'” Clear Channel, 594 F.3d at 110 (quoting Campbell v. Greisberger, 80 F.3d 703, 706 (2d Cir. 1996)).
2. Analysis
Medbar argues that the Court lacks subject matter jurisdiction over this case because Toro's claims are moot. Def. SMJ Mem. at 1. Specifically, Medbar contends that because it has updated its website to comply with the ADA and state law, and it will ensure that the website remains compliant in the future, there is no longer an actual controversy. Id. at 3-4. Toro, in turn, argues that Medbar failed to demonstrate that it has cured the violations on the website. Pl. SMJ Opp. at 11.
According to a declaration submitted by Richard Upshur, Medbar's general manager, Medbar has remedied all of the ADA violations identified by Toro in the amended complaint and contracted with a vendor to audit the website on a monthly basis going forward to ensure that the website remains compliant with the ADA and state law. Upshur SMJ Decl., ¶¶ 13-18. Specifically, Upshur affirms that all deficiencies were remedied prior to October 17, 2023. Id. ¶ 16. In similar ADA website cases, courts in this District have ruled that a sworn statement by a company official with direct knowledge of the allegations describing the steps taken to remedy the violations and the measures in place going forward to prevent future violations is sufficient grounds for determining the violations have been cured and are extremely unlikely to recur. See, e.g., Tavarez v. Extract Labs, Inc., No. 21-CV-9916 (JPO), 2023 WL 2712537, at *3 (S.D.N.Y. Mar. 30, 2023); Guglielmo v. Nebraska Furniture Mart, Inc., No. 19-CV-11197 (KPF), 2020 WL 7480619, at *6 (S.D.N.Y. Dec. 18, 2020); Diaz v. Kroger Co., No. 18-CV-7953 (KPF), 2019 WL 2357531, at *3 (S.D.N.Y. June 4, 2019); see also Suris v. Crutchfield New Media, LLC, No. 22-CV-6961 (NRM) (RML), 2023 WL 3792512, at *4 (E.D.N.Y. June 2, 2023). Toro argues that the existence of a “clear factual dispute” demonstrates the matter is not moot. Pl. SMJ Opp. at 11. Although Upshur affirms that Medbar cured the ADA violations on its website prior to October 17, Toro alleges in the amended complaint that he visited the website on that date and the barriers to access remained. Am. Compl. ¶ 36. However, unlike in other cases where ADA plaintiffs have disputed a defendant's claim to have remedied the violations, Toro does not offer any additional evidence beyond the single allegation in the amended complaint (which was filed prior to the instant motion) to contest the Upshur declaration. For example, in Hecht v Magnanni Inc., as in the present case, a visually impaired plaintiff sued a company under the ADA alleging its website was inaccessible. No. 20-CV-05316 (MKV), 2022 WL 974449, at *1 (S.D.N.Y. Mar. 31, 2022). In response, the company submitted an affidavit claiming the violations had been cured. Id. at *3-4. Plaintiff then filed an amended complaint asserting that the violations remained. Id. at *1. In response to a motion to dismiss for lack of subject matter jurisdiction, plaintiff provided an expert affidavit describing the still-extant violations, which defendant disputed. Id. at *3-4. Faced with these “voluminous” papers, the court determined that a dispute of fact existed and dismissal was not appropriate. Id. at *3; see also Rizzi v. Hilton Domestic Operating Co., Inc., No. 18-CV-427 (SJF) (ARL) 2020 WL 7000356, at *6 (E.D.N.Y. Aug. 11, 2020) (granting 12(b)(1) motion because plaintiff “has not come forward with a shred of evidence to suggest that Defendant's remedial actions have not corrected any issues with their websites”), adopted by 2020 WL 6253713 (Oct. 23, 2020). Toro has not provided a fraction of the evidence that the plaintiff in Hecht produced to dispute the claim that all deficiencies had been cured. Instead, Toro merely refers to the amended complaint, without offering any specificity as to what barriers to entry remained at the October 17 visit to the website.
Toro argues that the Upshur declaration should not be given weight because he did not establish his credentials and only provided “conclusory statements outside his realm of expertise.” Pl. SJ Opp. at 18. The Court disagrees. As the general manager of Medbar, Upshur “is in the best position to swear not only that Defendant made modifications to the Website, but that the conduct will not reoccur.” Diaz, 2019 WL 2357531, at *4 n.5. Upshur need not have knowledge of the technical nature of the modifications made to attest to the fact that Medbar hired a vendor with ADA expertise to modify and audit the website and that any ADA violations were resolved. See, e.g., Tavarez, 2023 WL 2712537, at *3 (sworn statement by marketing director with supervisory authority over website “sufficient to create a presumption of mootness”).
The Court is even less inclined to credit Toro's argument that the amended complaint contains sufficient allegations that access barriers remained on October 17 for two reasons. First, the amended complaint appears only to contain minor modifications designed to address the issue of personal jurisdiction. Am. Compl. at 5. It contains very little substantive information regarding Toro's later visits to the website beyond that they occurred, and the changes were so minor that errors remained in both versions. Compl. at 36; Am. Compl. at 36 (referring to Toro's inability to purchase a jacket despite previously stating he was trying to buy a helmet). Second, Medbar has provided evidence that the October 17 visit to the website was not, as Toro claims, a genuine attempt to purchase a product, but instead a more technical examination of the functionality of the website. Upshur Decl. ¶ 9. In the face of the detailed declaration provided by Medbar, Toro had to do more than refer back to a single sentence in the amended complaint stating that the website was not accessible on October 17. See Diaz, 2019 WL 2357531, at *2 (“[P]laintiff must show by a preponderance of the evidence that subject matter jurisdiction lies over the dispute.”).
Instead of offering evidence to rebut Medbar's claims, such as a declaration that he indeed visited the website subsequent to Medbar's alleged compliance with the ADA and a number of violations remained, Toro contends only that he needs to depose Upshur as well as the specialist who updated the website. Khaimov Decl. ¶¶ 5-9. Toro does not adequately explain why such depositions are necessary to contest Medbar's subject matter jurisdiction argument. Toro was able to determine that the website was not accessible prior to the filing of the amended complaint, identifying a number of specific deficiencies. Am. Compl. ¶ 32. Medbar now has offered evidence that it remedied these deficiencies. If it has not done so, it should be straightforward for Toro to visit the website, identify which barriers to access remain, and submit a sworn statement attesting to the same. Such a showing would have been sufficient to demonstrate a “clear factual dispute” without the need for any depositions.
Toro also argues that the Court should apply the summary judgment standard in resolving the motion to dismiss because the issue of mootness is “so intertwined” with the merits of the case. Pl. Opp. at 11-12. Despite the frequency of ADA litigation challenging noncompliant websites in this District, Toro has not identified any similar cases where courts have chosen to apply the summary judgment standard on a motion to dismiss for lack of subject matter jurisdiction. While Medbar's motion does raise factual issues, “[t]he Second Circuit recognizes that a defendant is permitted to make a fact-based Rule 12(b)(1) motion to dismiss, defined as a jurisdictional objection proffering evidence beyond the complaint and its exhibits as a basis for dismissal.” Tavarez, 2023 WL 2712537, at *2 (cleaned up). Furthermore, the Court does not agree that the instant motion to dismiss is so deeply entwined with the merits of the case that the more stringent summary judgment standard should be applied. Medbar does not argue that it does not need to comply with the ADA, or that it has always complied with the ADA; only that it cured the identified violations subsequent to the filing of this lawsuit. To survive this motion, Toro does not need to prove his case, but instead provide some showing, like the plaintiff in Hecht, that there is a genuine dispute as to whether violations remain. This he has failed to do.
For these reasons, Medbar has sufficiently shown, and Toro has not sufficiently challenged, that it has remedied the barriers to accessibility on the website and that they are extremely unlikely to reoccur. Accordingly, there is no live dispute and the Court lacks subject matter jurisdiction over this case.
Because dismissal of Toro's ADA claim is recommended, the Court should decline to exercise continuing supplemental jurisdiction over Toro's state and city claims. See, e.g., Taverez, 2023 WL 2712537, at *5.
B. Personal Jurisdiction
Because the Court lacks subject matter jurisdiction, this case should be dismissed and the 12(b)(2) motion should be denied as moot. Saint-Amour, 388 F.Supp.3d at 286. However, for completeness, an analysis of the 12(b)(2) motion to dismiss for lack of personal jurisdiction is included below.
Notably, at least one court in similar circumstances chose to address personal jurisdiction after determining it lacked subject matter jurisdiction. See Guglielmo, 2020 WL 7480619, at *7 (While recognizing the “preferred course of action is to refrain from considering other arguments” for dismissal when finding a lack of subject matter jurisdiction, court concluded that “[g]iven . . . the relatively few cases in this Circuit that have considered these issues in the ADA website context . . . it [is] prudent to address both bases for dismissal”).
1. Applicable Law
“A plaintiff opposing a motion to dismiss under Rule 12(b)(2) for lack of personal jurisdiction has the burden of establishing that the court has jurisdiction over the defendant,” Sanchez v. NutCo, Inc., No. 20-CV-10107 (JPO), 2022 WL 846896, at *3 (S.D.N.Y. Mar. 22, 2022) (quoting BHC Interim Funding, LP v. Bracewell & Patterson, LLP, No. 02-CV-4695, 2003 WL 21467544, at *1 (S.D.N.Y. June 25, 2003)), and “must make a prima facie showing that jurisdiction exists.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (quoting Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34-35 (2d Cir. 2010)) (internal quotation marks omitted). This requires “making ‘legally sufficient allegations of jurisdiction,' including ‘an averment of facts that, if credited[,] would suffice to establish jurisdiction over the defendant.'” Penguin Grp., 609 F.3d at 35 (quoting In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003)). In considering whether this burden has been met, a court “will not draw ‘argumentative inferences' in the plaintiff's favor,” nor is it “required ‘to accept as true a legal conclusion couched as a factual allegation.'” Licci ex rel. Licci, 673 F.3d at 59 (quoting Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994) and Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998)). On such a motion, the Court may consider “matters outside the pleadings.” Diaz, 2019 WL 2357531, at *5 (citing Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 86 (2d Cir. 2013)).
The personal jurisdiction analysis consists of a two-part inquiry, which assesses whether (1) there is jurisdiction under the forum state's long-arm statute, and (2) jurisdiction “comports with Due Process.” Diaz, 2019 WL 2357531, at *6. “Personal jurisdiction is determined in accordance with the law of the forum in which the federal court sits.” Sanchez, 2022 WL 846896, at *4 (citing Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)). Where there is no general jurisdiction, as is the case in this instance because Medbar is a Virginia corporation, the Court first determines whether it may exercise personal jurisdiction over Medbar pursuant to § 302(a) of New York's long-arm statute. See, e.g., id. If § 302(a) does confer jurisdiction over Medbar, the Court must ensure that the exercise of personal jurisdiction would not offend the Fifth Amendment's Due Process Clause. See id. The Court considers each of these issues below.
2. Analysis
a. Jurisdiction is Proper Under N.Y. C.P.L.R. § 302(a)(1)
Medbar maintains that its de minimis sales are not sufficient to confer jurisdiction, as it has not engaged in business in New York. Upshur PJ Decl. ¶ 8; Def. PJ Mem. at 6—7. This argument should not prevail.
N.Y. C.P.L.R. § 302(a)(1), New York's long-arm statute, permits the exercise of personal jurisdiction over a non-domiciliary like Medbar only if (1) it “‘transacts any business within the state'; and (2) the ‘cause of action aris[es] from' that business transaction.” Romero v. 88 Acres Foods, Inc., 580 F.Supp.3d 9, 15 (S.D.N.Y. 2022) (quoting N.Y. C.P.L.R. § 302(a)(1)). Whether a defendant conducts business transactions in New York “depends [first] on [its] degree of interactivity.” Sanchez, 2022 WL 846896, at *4 (citing Touro College v. Fondazione Touro Univ. Rome Onlus, No. 16-CV-3136 (DAB), 2017 WL 4082481, at *8 (S.D.N.Y. Aug. 31, 2017)) (quotation omitted). If a website allows for “the purchase and exchange of goods,” it is considered interactive, and thus may confer personal jurisdiction. Quezada v. U.S. Wings, Inc., No. 20-CV-10707 (ER), 2021 WL 5827437, at *6-7 (S.D.N.Y. Dec. 7, 2021); see also Romero, 580 F.Supp.3d at 12 (“Fully interactive websites, over which a seller knowingly transmits goods or services to users, are sufficient to confer personal jurisdiction.” (citing Royalty Network Inc. v. Dishant.com, LLC, 638 F.Supp.2d 410, 418-19 (S.D.N.Y. 2009))). Medbar's website is fully interactive under this standard, as it provides goods related to outdoor vehicles and activities which can be purchased online. Am. Compl. ¶ 18.
For a cause of action to “arise from” a business transaction, there must be an “an articulable nexus, or a substantial relationship, between the claim asserted and the actions that occurred in New York.” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007). “Operating a website that may be accessed from New York, without more, does not bring the operator within the jurisdiction of New York.” Camacho v. Emerson Coll., No. 18-CV-10600 (ER), 2019 WL 5190694, at *3 (S.D.N.Y. Oct. 15, 2019) (citing Best Van Lines, 490 F.3d at 253). “To the extent Plaintiff would argue that Defendant's ‘national web presence' targets New York, such national presence, standing alone, is insufficient to support the exercise of personal jurisdiction.” Guglielmo, 2020 WL 7480619, at *9 (citing Mercer v. Rampart Hotel Ventures, LLC, No. 19-CV-3551 (PAE), 2020 WL 882997, at *5-6 (S.D.N.Y. Feb. 24, 2020)). To confer jurisdiction, the defendant must also have “used the Website to ‘purposely avail' itself of the forum state.” Romero, 580 F.Supp.3d at 15 (citing Savage Universal Corp. v. Grazier Constr., Inc., No. 04-CV-1089 (GEL), 2004 WL 1824102, at *8-9 (S.D.N.Y. Aug. 13, 2004)) (quotations omitted). “[A] reasonable probability that the Website has been actually used to effect commercial transactions with customers in New York” satisfies this requirement. Diaz, 2019 WL 2357531, at *7 (quoting Alibaba Grp. Holding Ltd. v. Alibabacoin Found., No. 18-CV-2897 (JPO), 2018 WL 2022626, at *4 (S.D.N.Y. Apr. 30, 2018)) (cleaned up).
Medbar's website offers shipping to “the contiguous 48 states.” Am. Compl. ¶ 15. Furthermore, it has sold products to residents of New York. Upshur PJ Decl. ¶ 8. While it claims that only 0.013 percent of its sales since 2006 have been to New York, id., even such a small fraction is sufficient to confer jurisdiction. See, e.g., Grand v. Schwarz, No. 15-CV-8779 (KMW), 2016 WL 2733133, at *3 (S.D.N.Y. May 10, 2016) (“Section 302(a)(1) is a ‘single act statute and proof of one transaction in New York is sufficient to invoke jurisdiction'”) (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (N.Y. 1988)); Loadholt v. Herbs & Arts Intergalactic, Inc., No. 22-CV-7591 (PAE) (JLC), 2023 WL 2768064, at *4 (S.D.N.Y. Apr. 4, 2023) (report and recommendation) (finding personal jurisdiction in ADA website case where 0.014 percent of sales occurred in New York). In contrast, courts have found operating a retail website insufficient to confer jurisdiction under § 302(a)(1) where plaintiffs failed to show that any resident of New York could place an order on the website. See Guglielmo, 2020 WL 7480619, at *9; Diaz, 2019 WL 2357531, at *7.
The citation refers to the first paragraph numbered “15” in the amended complaint.
In sum, because Medbar has made its website available to New York customers and in fact shipped items to New York customers in the past, it has transacted business in New York for the purposes of § 302(a)(1).
Toro, a New York resident, allegedly attempted to purchase a product on Medbar's website, but was unable to do so. Am. Compl. ¶ 36. The claim in this case therefore arose out of Medbar's business in New York. See, e.g., Guglielmo v. JEGS Auto., Inc., No. 20-CV-5376 (LJL), 2021 WL 1026168, at *5 (S.D.N.Y. Mar. 17, 2021) (allegation that plaintiff could not purchase good on defendant's non-ADA-compliant website was harm arising out of business in New York). Medbar challenges the specifics of Toro's visits to the website, claiming that he did not view a helmet or a jacket during his alleged visits and his claim did not therefore arise out of a transaction in New York. Def. PJ Reply at 3-4. However, it is plausible that Toro visited the website seeking to buy a helmet, as he alleged, but could not navigate it successfully due to the accessibility issues identified in his pleadings. The second prong of New York's long arm statute is therefore satisfied.
b. Jurisdiction Under New York's Long Arm Statute Would Not Violate Due Process
Medbar also contends that the exercise of New York's jurisdiction would violate federal Due Process requirements because it lacks minimum contacts with the state and it would be unreasonable to require it to defend itself in the Southern District of New York. Def. PJ Mem. at 11.
To comport with Due Process requirements, the defendant must have “‘sufficient minimum contacts with the forum' to justify a court's exercise of personal jurisdiction, such that the ‘assertion of personal jurisdiction over the defendant comports with traditional notions of fair play and substantial justice.'” Sanchez, 2022 WL 846896, at *5 (quoting Waldman v. Palestine Liberation Org., 835 F.3d 317, 332 (2d Cir. 2016)). While § 302(a)(1)'s provisions are not entirely coterminous with Due Process, “the Second Circuit has noted that it would be a ‘rare' case where personal jurisdiction is proper pursuant to New York's long-arm but not pursuant to a due process analysis.” Romero, 580 F.Supp.3d at 16 (citing Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 168 (2d Cir. 2015)). Medbar has failed to distinguish its case from the other, very similar cases in this District where courts have found the exercise of jurisdiction on an out-of-state business not to violate Due Process. See, e.g., Loadholt, 2023 WL 2768064, at *6; Sanchez, 2022 WL 846896, at *5; Quezada, 2021 WL 5827437, at *7.
Lastly, exercise of personal jurisdiction over Medbar would not be unreasonable. “Because [defendant's] products are available to be sold . . . in New York, the forum has an interest in the resolution of the dispute.” Sanchez, 2022 WL 846896, at *5 (quoting Quezada, 2021 WL 5827437, at *7); see also Chanel, Inc. v. Shiver & Duke LLC, No. 21-CV-1277 (MKV), 2022 WL 3868113, at *3 (S.D.N.Y. Aug. 30, 2022) (“Courts in this Circuit routinely have held that selling items to New York-based customers through a website constitutes purposeful availment.”).
In conclusion, this Court has personal jurisdiction over Medbar and to the extent it is necessary to reach it, Medbar's 12(b)(2) motion to dismiss should be denied.
III. CONCLUSION
For the foregoing reasons, Medbar's motion to dismiss for lack of subject matter jurisdiction should be granted, and the amended complaint dismissed without prejudice. Because the Court lacks subject matter jurisdiction, it need not reach the issue of personal jurisdiction and Medbar's motion to dismiss on those grounds should be denied as moot.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Arun Subramanian, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Subramanian.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).