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`EQUAL RIGHTS CENTER,
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`UBER TECHNOLOGIES, INC., et al.,
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`Plaintiff,
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`v.
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`Defendants.
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 1 of 48
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`No. 17-cv-1272 (KBJ)
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`MEMORANDUM OPINION
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`Providers of public transportation services have long been subject to federal and
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`state regulation with respect to the provision of accommodations for people with
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`physical disabilities. See, e.g., 42 U.S.C. § 12184; D.C. Code §§ 2-1402.31(a)(1), 2-
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`1401.02(24). In the instant action, plaintiff Equal Rights Center (“ERC”) alleges that
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`defendant Uber—a company that maintains a ride-sharing application (“app”) that
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`connects users to drivers—systematically discriminates against those disabled
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`individuals in the District of Columbia who use non-foldable wheelchairs, because
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`Uber’s wheelchair accessible ride-share services are allegedly far less reliable and
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`predictable than its non-wheelchair accessible offerings. (See Am. Compl., ECF No.
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`22, ¶¶ 2–12.) ERC also alleges that Uber requires wheelchair users to pay higher fares
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`and endure longer wait times than people who use Uber’s standard transportation
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`service. (See id. ¶¶ 79–96.) In the two-count complaint that ERC has filed against
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`Uber in the instant case, ERC claims that Uber qualifies as a public transportation
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`service for the purpose of federal and local law, and, therefore, that the identified
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`1
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 2 of 48
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`disparities amount to unlawful discrimination under Title III of the Americans with
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`Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., and the District of Columbia
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`Human Rights Act (“DCHRA”), D.C. Code § 2-1401.01 et seq. (See id. ¶¶ 117–42.)
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`Before this Court at present is Uber’s motion to dismiss ERC’s claims pursuant
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`to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (See Defs.’
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`Mot. to Dismiss 1st Am. Compl. (“Defs.’ Mot.”), ECF No. 25; Mem. in Supp. of Defs.’
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`Mot. to Dismiss 1st Am. Compl. (“Defs.’ Mem.”), ECF No. 25-1.) As a threshold
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`jurisdictional issue, Uber argues that ERC lacks Article III standing to sue, either on its
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`own behalf or on behalf of its members. (See Defs.’ Mem. at 18–28.)1 Uber maintains
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`further that ERC has not plausibly alleged that the ADA and DCHRA apply to its app,
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`and that even if those statutes do apply, Uber’s services do not constitute discrimination
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`and cannot be reasonably modified. (See id. at 28–45.) Uber also asserts that the
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`DCHRA claim is barred by that statute’s one-year limitations period. (See id. at 46.)
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`Ever mindful of the fact that all that is required at this early stage of the
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`litigation is for ERC to make plausible claims of liability, this Court must reject Uber’s
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`dismissal arguments, for the reasons explained fully below. As a threshold matter, the
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`Court finds that ERC has associational standing to bring the complaint’s ADA and
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`DCHRA discrimination claims on behalf of its members. The Court also concludes that
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`the complaint contains plausible allegations concerning Uber’s eligibility for regulation
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`under section 12184 of Title III of the ADA and the DCHRA; that ERC has alleged
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`circumstances that plausibly sustain discrimination claims under the cited statutes; and
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`that ERC’s DCHRA claim is timely. Therefore, Uber’s motion to dismiss ERC’s
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`1 Page numbers herein refer to those that the Court’s electronic case-filing system automatically
`assigns.
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`2
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 3 of 48
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`complaint will be DENIED. A separate Order consistent with this Memorandum
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`Opinion will follow.
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`I.
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`BACKGROUND
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`A. ERC’s Allegations Regarding Uber’s Services
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`ERC is a non-profit corporation that focuses, among other things, on combatting
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`discrimination against people with disabilities in the public and private transportation
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`sectors. (See Am. Compl. ¶¶ 14, 17.) According to ERC’s complaint, Uber operates a
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`ridesharing service that enables people to “secure rides more swiftly, reliably, and
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`conveniently—and then ride more cheaply—than was possible under taxi service
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`alone.” (Id. ¶ 1.) Uber delivers its service via a smartphone app through which users
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`can “hire a private vehicle for transportation in any region in which Uber operates” (see
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`id. ¶ 43), including in the District of Columbia, where Uber’s services have been
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`available since 2011 (see id. ¶ 4).
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`In order to use Uber, a person must download the app and create an account,
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`which requires providing a phone number and credit card information. (See id. ¶ 44.)
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`The user can then request rides through the app; specifically, users identify pick-up and
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`drop-off locations, and thereby provide information about their whereabouts and
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`destination, and Uber’s software system then uses that information to “determine[]
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`which nearby drivers will have the opportunity to respond and direct[] the request to
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`[the drivers].” (Id. ¶ 45.) When a driver accepts a request, Uber “notifies the user of
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`the driver’s name, phone number, vehicle make and model, license plate number,
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`estimated time of arrival, and customer satisfaction rating[,]” and the user can track that
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`vehicle’s progress as it makes its way to the pick-up location. (Id.) Moreover, at the
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`3
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 4 of 48
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`end of the trip, Uber “automatically processes payment with the user’s credit card
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`information.” (Id. ¶ 46.) Uber then takes a 20 to 25 percent cut of the total payment,
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`giving the rest to the driver. (See id.)
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`Uber “has approximately 30,000 active drivers in the D.C. area” who collectively
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`provide users with a variety of ride options. (See id. ¶ 59.) UberX, which uses standard
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`vehicles, is “Uber’s most popular service.” (Id. ¶ 48.) Uber’s other options include
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`UberBlack, which involves “‘high-end rides with professional drivers’”; UberXL,
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`which provides “seating capacity for up to six passengers”; and UberSUV, which uses
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`“luxury SUVs with seating capacity for up to six passengers.” (Id. ¶ 49.) Uber also
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`currently provides two wheelchair accessible user options: TAXI WAV, which allows
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`riders to hail D.C. taxi cabs through the Uber app (see id. ¶ 9), and UberWAV, a
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`relatively new service that uses Uber drivers’ own vehicles (see id. ¶ 11).
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`To ensure there are enough drivers on the road to meet demand, Uber “uses a
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`variety of methods[.]” (See id. ¶ 62.) For example, Uber “regularly informs drivers as
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`to where demand is or is likely to become high” and modifies rates through “‘surge
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`pricing’ to give drivers the incentive to work during times and places of heavy
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`demand.” (Id.) In addition, to increase efficiency, Uber uses an algorithm for matching
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`drivers and riders that allows drivers to have “the next ride lined up even as one
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`passenger is being dropped off.” (Id.) Thus, even though drivers “determine when and
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`where they work,” Uber influences drivers’ schedules through its policies and practices.
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`(See id.)
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`Beyond managing supply and demand, Uber also prescribes the types of vehicles
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`that its drivers may use. (Id. ¶ 64.) While each driver is responsible for obtaining his
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`4
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 5 of 48
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`own vehicle, Uber imposes certain criteria regarding which vehicles can be used for
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`which services. (See id.) For instance, drivers participating in UberX “must use a ‘4-
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`door car or minivan’ that is in good condition, seats at least four passengers in addition
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`to the driver, and has a model year of 2007 or later.” (Id. ¶ 65.) Uber also circulates a
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`list of recommended vehicles for UberX and helps drivers who do not already own such
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`vehicles to lease or rent them through “special programs” with its subsidiary, Xchange
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`Leasing, LLC. (See id. ¶¶ 65, 67–68.) Similarly, Uber offers discounted rentals
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`through partnerships with local rental car companies. (See id. ¶ 72.)
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`B. ERC’s Allegations Concerning Uber’s Services For Persons Who Use
`Wheelchairs
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`At the time that ERC filed its first complaint in this action in June of 2017, Uber
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`provided only TAXI WAV for wheelchair users, meaning that the company had no
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`wheelchair accessible vehicles in its own 30,000-vehicle fleet. (See id. ¶ 29.) As
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`indicated above, Uber now offers UberWAV—a service involving drivers who own and
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`use wheelchair accessible vehicles—as well. (See id. ¶ 53.) However, ERC alleges that
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`it has conducted an investigation into Uber’s wheelchair accessible services, and that
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`both TAXI WAV and UberWAV are “woefully inadequate” to provide full and equal
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`enjoyment of Uber’s services. (See id. ¶ 11.) To demonstrate the alleged disparities, in
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`the summer of 2016, ERC conducted four “matched pair tests” that assessed the
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`reliability of Uber’s TAXI WAV service. (Id. ¶ 80.) In each test, a TAXI WAV user
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`and an UberX user requested rides “within five minutes of one another[,]” using the
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`same pick-up and drop-off locations, and ERC then measured the difference in the wait
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`times and costs of each ride. (Id.) ERC also conducted a follow-up comparison
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`between these two services in May of 2017 (id. ¶ 85), as well as a matched pair test
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`5
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 6 of 48
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`between UberWAV and UberX in November of 2017 (id. ¶ 92). Additionally, on
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`November 29, 2017, ERC asked a tester to request rides from UberWAV during the
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`“morning rush hour” and in the afternoon, and ERC recorded the time it took for the
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`cars to arrive. (Id. ¶¶ 93–94.)
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`Based on the results of its investigation, ERC alleges that both service rates and
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`waiting times for Uber’s wheelchair accessible services are significantly greater than
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`those of Uber’s standard services. With respect to rates, ERC found that TAXI WAV
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`users are charged an average of $6.81 more per ride than UberX users (id. ¶¶ 80–81), in
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`part because TAXI WAV allegedly requires users to pay standard D.C. taxi fares
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`instead of Uber fares (see id. ¶ 52), and there is a “vast disparity in the per-mile and
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`per-minute rates” of those two services (id. ¶ 57). In May of 2017, for instance, ERC
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`found that UberX cost $0.17 per minute and $1.02 per mile, compared with D.C. taxi
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`charges of $0.58 per minute and $3.25 for the first mile, with $2.16 for every
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`subsequent mile. (See id.) ERC also alleges that the disparity between the rates of
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`TAXI WAV and UberX is further exacerbated by the fact that Uber charges a $2.00
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`booking fee for TAXI WAV rides, compared to a $1.35 booking fee for UberX rides.
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`(Id. ¶ 80.) As for UberWAV, ERC maintains that users similarly pay more for this
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`service than for Uber’s standard option, even though “Uber claims that its new
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`UberWAV service is priced the same as UberX[.]” (See id. ¶ 95.) For example, in the
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`matched pair test that ERC conducted in November of 2017, ERC observed that “[t]he
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`user who requested UberWAV was quoted a higher price than the user who requested
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`UberX for an equivalent ride.” (Id.)2
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`2 ERC was not able to calculate the actual (paid) difference in the costs of the rides, because “no
`UberWAV ever showed up.” (Am. Compl. ¶ 95.)
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`6
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 7 of 48
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`With respect to waiting times, ERC alleges that both TAXI WAV and UberWAV
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`take longer to serve users than UberX. Starting with TAXI WAV, ERC asserts that,
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`during the matched pair tests that it conducted in 2016, the person who requested a
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`TAXI WAV had to wait an average of 34.25 minutes longer than the UberX user. (See
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`id. ¶ 81.) And in a follow-up test that ERC conducted in May of 2017, the TAXI WAV
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`requester allegedly struggled to find a wheelchair accessible ride at all: he was matched
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`with a driver who then cancelled the ride because he was too far away, and the user
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`subsequently could not get a ride for an additional 45 minutes. (See id. ¶ 85.)
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`UberWAV allegedly suffers from the same “speed and reliability” defects as
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`TAXI WAV. (Id. ¶ 91.) For instance, during the matched pair test that ERC conducted
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`on November 13, 2017, the UberWAV user was allegedly “unable to secure a ride in 45
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`minutes of trying.” (Id. ¶ 92.) Similarly, when a tester attempted to book UberWAV
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`later that month during morning rush hour, it took him two tries to connect with a car,
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`and once he did, he had to wait 36 minutes for the car to arrive. (Id. ¶ 93.)
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`Additionally, when the tester attempted to book an UberWAV that afternoon, he waited
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`over two hours to be matched with a car, which then took 16 minutes to arrive after
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`accepting the request. (Id. ¶ 94.)
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`In light of these observations, ERC maintains that neither TAXI WAV nor
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`UberWAV provides services anywhere close to that of UberX. (See id. ¶¶ 89, 96.)
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`However, in ERC’s view, the documented deficiencies in Uber’s wheelchair accessible
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`services are by no means unavoidable. Uber allegedly “has the ability to ensure that the
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`supply of wheelchair accessible vehicles in its fleet meets demand better than what is
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`currently provided in the D.C. area” (id. ¶ 39), but has opted instead to continue to
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 8 of 48
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`“impose vehicle-type restrictions that actively discourage its drivers from acquiring and
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`operating wheelchair accessible vehicles” (id. ¶ 8). In fact, according to ERC’s
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`complaint, Uber “has told at least one individual that he could not drive for Uber if he
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`used a wheelchair accessible vehicle[,]” prompting that driver to replace his wheelchair
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`accessible vehicle with a non-accessible one in order to work for Uber. (Id. ¶ 31.)
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`Moreover, although Uber now has some wheelchair accessible vehicles in its fleet
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`through UberWAV, it does not include wheelchair accessible vehicles on its list of
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`recommended vehicles for UberX drivers, nor does it offer special financing programs
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`for wheelchair accessible vehicles. (See id. ¶¶ 65, 70; see also id. ¶ 72 (noting that
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`discounts through Uber’s partnerships are “either entirely unavailable or not readily
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`available for wheelchair accessible vehicles”).) Thus, ERC claims that Uber’s choices
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`concerning wheelchair accessible vehicles and services violate both federal and D.C.
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`law.
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`C. Procedural History
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`ERC filed the instant lawsuit on June 28, 2017 (see Compl., ECF No. 1), and
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`amended its complaint on December 8, 2017 (see Am. Compl.). In the amended two-
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`count complaint, ERC generally alleges that Uber Technologies, Inc., and also its
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`subsidiaries Rasier, LLC, and Drinnen, LLC, have adopted policies regarding Uber
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`vehicles that “systematically deny wheelchair users full and equal enjoyment of Uber’s
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`service in the District of Columbia and surrounding areas.” (Id. ¶ 12; see also id.
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`¶¶ 20–21.) ERC maintains that Uber’s failure to ensure that “ a meaningful number of
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`wheelchair accessible vehicles” are provided has undermined ERC’s mission and has
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`“forced ERC to postpone or abandon other projects and services.” (Id. ¶¶ 36, 105, 110.)
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 9 of 48
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`ERC also alleges that Uber’s actions have harmed ERC’s members, many of whom use
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`wheelchairs. (See id. ¶¶ 13, 103.)
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`In Count I, ERC asserts a claim on behalf of its members under section 12184 of
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`the ADA, which makes it unlawful to discriminate against disabled individuals in “the
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`full and equal enjoyment” of certain transportation services. (Id. ¶ 118.) ERC alleges
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`that the “[in]sufficient number of wheelchair accessible vehicles available through any
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`of [Uber’s] offerings” (id. ¶ 125), along with Uber’s refusal “to make reasonable
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`modifications to [its] policies, practices, and procedures” concerning its fleet (id.
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`¶ 128), injures wheelchair-reliant individuals by generating higher fares and longer wait
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`times for such individuals than people who use Uber’s standard non-accessible options,
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`such that individuals who use wheelchairs are being denied the full and equal
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`enjoyment of Uber’s services (see id. ¶¶ 125–28). In the alternative, ERC alleges that
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`Uber has violated section 12182 of the ADA, which prohibits discrimination in places
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`of public accommodation. (See id. ¶ 122; see also Pl.’s Mem. in Opp’n to Defs.’ Mot.
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`to Dismiss (“Pl.’s Opp’n”), ECF No. 27, at 32.)
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`In Count II, ERC asserts a claim on behalf of itself and its members under the
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`DCHRA, which similarly “makes it unlawful to deny any person the full and equal
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`enjoyment of the services of a place of public accommodation on the basis of
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`disability.” (Am. Compl. ¶ 132.) Count II alleges that Uber’s inferior wheelchair
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`accessible options unlawfully deprive individuals with disabilities of the full and equal
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`enjoyment of its services (see id. ¶¶ 135–38); that Uber’s conduct is intentional and
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`discriminatory (see id. ¶ 139); and that Uber’s actions “constitute[] an ongoing and
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 10 of 48
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`continuing violation of the DCHRA that has injured Plaintiff ERC and its members” (id.
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`¶ 141).
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`For relief, ERC requests that the Court not only declare that Uber’s policies and
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`practices violate both the ADA and the DCHRA, but also, inter alia, enjoin Uber “from
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`denying people who use non-folding wheelchairs full and equal enjoyment of [its]
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`services” and require Uber “to develop and implement policies, practices, and
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`procedures that afford people who use non-folding wheelchairs full and equal
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`enjoyment of [its] services[.]” (Id., Prayer for Relief, (a)–(c).) ERC also seeks an
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`award of compensatory and punitive damages under the DCHRA, as well as reasonable
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`attorney’s fees and costs. (Id., Prayer for Relief, (d)–(e).)
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`On January 12, 2018, Uber filed the motion to dismiss that is before this Court at
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`present, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil
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`Procedure. (See Defs.’ Mot.; Defs.’ Mem.) In contesting the Court’s jurisdiction to
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`hear this case, Uber first argues that ERC does not have standing to sue, either on
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`behalf of its members or on behalf of itself. (See Defs.’ Mem. at 15.) In this regard,
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`Uber asserts that ERC lacks associational standing to sue on behalf of its members
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`because ERC’s members themselves lack standing, and that, regardless, the
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`participation of individual members is necessary to determine which members have
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`already downloaded the Uber app and which members lack the necessary equipment and
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`credit card information to do so. (See id. at 23–28.) With respect to ERC’s
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`organizational standing, Uber argues that ERC itself has not suffered a cognizable
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 11 of 48
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`injury under Article III, and that even if it has, Uber did not cause ERC’s alleged
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`injury, nor can a judgment against Uber redress the alleged injury. (See id. at 18–22.)3
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`As for the merits of ERC’s claims, Uber insists that because it is a technology
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`company that is not engaged in the business of transporting people, much less primarily
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`so, section 12184 of the ADA is not applicable to the instant circumstances. (See id. at
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`35–39.) Furthermore, Uber maintains that even if section 12184 does apply to its
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`business, section 12184 does not cover the kind of discrimination that ERC alleges (see
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`id. at 40–42), and requiring Uber to provide wheelchair accessible services would fall
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`outside the realm of the “reasonable modifications” that the statute contemplates (see
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`id. at 42–43).4
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`With respect to ERC’s DCHRA claim, Uber similarly insists that the phrase
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`“place of public accommodation” does not cover its services since Uber does not own
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`or operate any public conveyances. (See id. at 45–47.) And it also mounts an attack
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`based on the DCHRA’s statute of limitations, maintaining that ERC’s claim is time-
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`barred because such claims must be filed within one year of the plaintiff’s discovery of
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`the unlawful conduct, which ERC failed to do. (See id. at 46.)
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`3 In the realm of standing-like arguments, Uber also asserts that the participation of ERC’s members is
`necessary for monetary damages to be awarded in this litigation (see Defs.’ Mem. at 26–27), but ERC
`has subsequently clarified that it does not seek damages for its individual members; it seeks damages
`only for itself under the DCHRA (see Pl.’s Opp’n at 20). Likewise, Uber argues that ERC cannot sue
`on its own behalf because it has no private right of action under the ADA, given that ERC—as an
`organization—was not subjected to any allegedly discriminatory conduct. (See Defs.’ Mem. at 22–23.)
`Here too, ERC has explained that it is not bringing its ADA claim on behalf of itself, and as a result,
`Uber appears to have dropped its right-of-action argument. (See Pl.’s Opp’n at 19–20; see also Defs.’
`Reply to Pl.’s Opp’n (“Defs.’ Reply”), ECF No. 28.)
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` Because this Court rejects Uber’s merits argument for now, and concludes that ERC has stated a claim
`under section 12184 for purposes of Count I, see infra Part III.B, it need not address Uber’s argument
`that its services do not constitute a place of public accommodation under section 12182. The parties’
`arguments concerning section 12182 are preserved, and may be re-raised, if necessary, at a later stage
`of the proceedings in this case.
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` 4
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 12 of 48
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`The parties appeared before this Court on May 10, 2018, for a hearing
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`concerning Uber’s motion to dismiss, during which Uber argued that ERC’s complaint
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`does not adequately demonstrate that Heidi Case—an ERC member whose allegations
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`ERC relies upon for associational standing—has any knowledge of the new UberWAV
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`service, and, therefore, ERC cannot establish that Case has an injury in fact. (See Mot.
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`Hr’g Tr., ECF No. 34, at 40:6–11, 43:25–44:16.) Because there was no record evidence
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`concerning the matter, the Court provided ERC with the opportunity to file an affidavit
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`or other evidence demonstrating Case’s knowledge (see Order of Aug. 2, 2018, ECF
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`No. 35), and ERC submitted a declaration from Case (hereinafter “Case Declaration”)
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`on August 14, 2018 (see Notice of Filing Heidi Case Decl., ECF No. 36, at 1). On
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`September 7, 2018, by leave of the Court, Uber filed a supplemental brief in response to
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`the Case Declaration (see Defs.’ Suppl. Br. in Further Supp. of Mot. to Dismiss (“Defs.’
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`Resp. to Case Decl.”), ECF No. 39), and ERC filed a reply on September 17, 2018 (see
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`Pl.’s Suppl. Mem. in Further Opp’n to Defs.’ Mot to Dismiss, ECF No. 40).
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`In addition, both before and after the motion hearing, the parties filed multiple
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`notices of supplemental authority and responses thereto. (See Pl.’s Notice of Suppl.
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`Auth., ECF No. 29; Defs.’ Resp. to Pl.’s Notice of Suppl. Auth., ECF No. 30; Pl.’s 2d
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`Notice of Suppl. Auth., ECF No. 31; Defs.’ Resp. to Pl.’s 2d Notice of Suppl. Auth.,
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`ECF No. 32; Defs.’ Notice of Suppl. Auth., ECF No. 41; Pl.’s Resp. to Defs.’ Notice of
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`Suppl. Auth., ECF No. 42; Defs.’ 2d Notice of Suppl. Auth., ECF No. 44; Pl.’s Resp. to
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`Defs.’ 2d Notice of Suppl. Auth., ECF No. 45; Pl.’s 3d Notice of Suppl. Auth., ECF No.
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`46; Defs.’ Resp. to Pl.’s 3d Notice of Suppl. Auth., ECF No. 48; Pl.’s 4th Notice of
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`12
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 13 of 48
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`Suppl. Auth., ECF No. 49; Defs.’ 3d Notice of Suppl. Auth., ECF No. 50; Pl.’s Resp. to
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`Defs.’ 3d Notice of Suppl. Auth., ECF No. 51.)
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`Uber’s motion to dismiss has now been fully and extensively briefed and argued,
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`and is ripe for this Court’s review.
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`II.
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`LEGAL STANDARDS
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`A. Motions To Dismiss Under Rule 12(b)(1)
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`A motion to dismiss brought pursuant to Rule 12(b)(1) of the Federal Rules of
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`Civil Procedure challenges a court’s subject matter jurisdiction—that is, a court’s
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`power to hear a plaintiff’s legal claims. When a defendant files a Rule 12(b)(1) motion,
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`“the plaintiff bears the burden of establishing [the court’s] jurisdiction by a
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`preponderance of the evidence.” Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48,
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`53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). In
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`deciding whether or not to grant the motion, a district court must “‘accept all of the
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`factual allegations in [the] complaint as true,’” Jerome Stevens Pharms., Inc. v. Food &
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`Drug Admin., 402 F.3d 1249, 1253–54 (D.C. Cir. 2005) (quoting United States v.
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`Gaubert, 499 U.S. 315, 327 (1991)), and “may consider materials outside the pleadings”
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`when making its determination, id. at 1253. Moreover, “[b]ecause Rule 12(b)(1)
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`concerns a court’s ability to hear a particular claim, the court must scrutinize the
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`plaintiff’s allegations more closely when considering a motion to dismiss pursuant to
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`Rule 12(b)(1) than it would under . . . Rule 12(b)(6).” Schmidt v. U.S. Capitol Police
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`Bd., 826 F. Supp. 2d 59, 65 (D.D.C. 2011).
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`B. Motions To Dismiss Under Rule 12(b)(6)
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 14 of 48
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`A motion to dismiss brought pursuant to Rule 12(b)(6) tests the sufficiency of a
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`complaint’s factual allegations in support of a plaintiff’s legal claims. See Howard
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`Univ. v. Watkins, 857 F. Supp. 2d 67, 71 (D.D.C. 2012). Thus, courts considering a
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`motion to dismiss under Rule 12(b)(6) must accept as true all of the plaintiff’s
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`allegations of fact and must also “grant [a] plaintiff the benefit of all inferences that can
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`be derived from the facts alleged[.]” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
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`1113 (D.C. Cir. 2000) (internal quotation marks and citation omitted). To withstand a
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`Rule 12(b)(6) motion, the complaint must set forth sufficient factual allegations to
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`“state a claim to relief that is plausible on its face[,]” Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 570 (2007), meaning that the complaint’s “factual content [must] allow[] the
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`court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged[,]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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`Unlike Rule 12(b)(1), Rule 12(b)(6) “places th[e] burden on the moving party” to
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`show that the complaint is legally insufficient. Cohen v. Bd. of Trs. of the Univ. of
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`D.C., 819 F.3d 476, 481 (D.C. Cir. 2016) (citing 5B Charles A. Wright & Arthur R.
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`Miller, Federal Practice and Procedure § 1357 (3d ed. 2015)). A court assessing
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`whether a complaint states a claim upon which relief can be granted is limited to a
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`review of the four corners of the complaint, as well as any “documents attached as
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`exhibits or incorporated by reference in the complaint, or documents upon which the
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`plaintiff’s complaint necessarily relies[.]” Page v. Mancuso, 999 F. Supp. 2d 269, 275
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`(D.D.C. 2013) (internal quotation marks and citations omitted).
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 15 of 48
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`III. ANALYSIS
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`Uber insists that ERC lacks both associational standing and organizational
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`standing to bring the instant discrimination claims in federal court, and thus, that ERC’s
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`claims must be dismissed under Rule 12(b)(1). (See Defs.’ Mem. at 15.) In the
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`alternative, Uber maintains that ERC has failed to state either an ADA claim or a
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`DCHRA claim for the purpose of Rule 12(b)(6), primarily because, according to Uber,
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`its ride-coordination services do not qualify as public transportation services that are
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`subject to regulation under either statute. (See, e.g., id. at 28–39, 45–47.) With respect
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`to its evaluation of Uber’s threshold standing argument, the Court must apply the legal
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`standards that pertain to Article III standing to sue as it relates to organizations, and, in
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`particular, the well-established principle that an organization is generally authorized to
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`bring claims in federal court on behalf of its members so long as at least one member
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`has standing in her own right. See, e.g., Hunt v. Wash. State Apple Advert. Comm’n,
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`432 U.S. 333, 343 (1977). The Court is also fully cognizant of the fact that an ADA or
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`DCHRA plaintiff at this early stage of the litigation needs only standing and a plausible
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`claim that the defendant’s conduct amounts to discrimination in violation of those
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`statutes’ standards; that is, certainty regarding the meritorious nature of the plaintiff’s
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`legal claims is not required.
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`For the reasons explained below, this Court concludes that the discrimination
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`claims that ERC has brought against Uber must be allowed to proceed, at least for now,
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`because ERC has associational standing to pursue its ADA and DCHRA claims on
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`behalf of its members, and because the facts alleged in the complaint give rise to viable
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`and timely claims under the ADA and the DCHRA. Therefore, Uber’s motion to
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`dismiss will be denied.
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 16 of 48
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`A. ERC Has Associational Standing
`1. An Organization Can Bring Legal Claims On Behalf Of Its Members
`And/Or Itself
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`Article III of the Constitution limits “federal-court jurisdiction to actual cases or
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`controversies[,]” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013) (quoting
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`DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)), and fundamental to a
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`federal court’s determination of whether it has been presented with a proper case or
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`controversy is whether “plaintiffs [have] establish[ed] that they have standing to sue[,]”
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`id. (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Article III standing thus
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`ensures that plaintiffs have “such a personal stake in the outcome of the controversy as
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`to warrant [the] invocation of federal-court jurisdiction.” New Eng. Anti-Vivisection
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`Soc’y v. U.S. Fish & Wildlife Serv., 208 F. Supp. 3d 142, 155 (D.D.C. 2016) (emphasis
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`omitted) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).
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`The “‘irreducible constitutional minimum’ of standing consists of three
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`elements.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan, 504
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`U.S. at 560). First, the plaintiff must have suffered an injury in fact that is both
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`“concrete and particularized” and “actual or imminent, not conjectural or
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`hypothetical[.]” Lujan, 504 U.S. at 560 (internal quotation marks and citations
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`omitted). Second, there must be a “causal connection” such that the plaintiff’s injury is
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`fairly traceable to the defendant’s challenged conduct. Id. (citation omitted). And,
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`third, it must be likely that the plaintiff’s “injury will be redressed by a favorable
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`[judicial] decision.” Id. at 561 (internal quotation marks and citation omitted). “[E]ach
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`element must be supported in the same way as any other matter on which the plaintiff
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`bears the burden of proof, i.e., with the manner and degree of evidence required at the
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`Case 1:17-cv-01272-KBJ Document 55 Filed 03/15/21 Page 17 of 48
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`successive stages of the litigation.” Id. Accordingly, “[a]t the pleading stage, general
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`factual allegations of injury resulting from the defendant’s conduct may suffice, for on
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`a motion to dismiss” courts assume “that general allegations embrace those specific
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`facts that are necessary to support the claim.” Id. (internal quotation marks and citation
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`omitted).
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`Notably, an organization has more than one option with respect to establishing
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`Article III standing: it may bring a claim on behalf of its members under an
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`“associational” theory, or it may bring the claim on behalf of itself, under an
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`“organizational” theory of standing. See Elec. Priv. Info. Ctr. v. U.S. Dep’t of Com.,
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`928 F.3d 95, 100–01 (D.C. Cir. 2019). To demonstrate associational standing at the
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`pleading stage, the organization must plausibly allege that: “(1) at least one of [its]
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`members has standing, (2) the interests the association seeks to protect are germane to
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`its purpose, and (3) neither the claim asserted nor the relief requested requires the
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`participation of an individual member in the lawsuit.” Am. Libr. Ass’n v. FCC, 406
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`F.3d 689, 696 (D.C. Cir. 2005); see also Hunt, 432 U.S. at 343. Meanwhile, to support
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`the allegation that there is organizational standing, the organization must, “like an
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`indi