Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 1 of 17 Civil Action No. 1:15-cv REB-KMT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO NATIONAL FEDERATION OF THE BLIND, on behalf of their members and themselves, et al., Plaintiffs, v. PETSMART, INC., Defendant. / DEFENDANT S PARTIAL MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT AS MOOT AND MEMORANDUM OF LAW Defendant PetSmart, Inc. ( PetSmart ), pursuant to Federal Rule of Civil Procedure 12(b)(1) ( Rule 12(b)(1) ), moves to dismiss Count One of Plaintiffs Amended Complaint ( Complaint ), which seeks injunctive relief under Title III of the Americans with Disabilities Act ( ADA ), 42 U.S.C , and Counts Two, Three and Four to the extent the claims seek injunctive relief. PetSmart also moves to dismiss, pursuant to Rule 12(b)(1), Plaintiffs, National Federation of the Blind ( NFB ) and the Colorado Cross-Disability Coalition ( CCDC ) (together, the Organization Plaintiffs ) because they lack standing to pursue claims for monetary damages under Counts Two, Three and Four. PetSmart further moves to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6) ( Rule 12(b)(6) ), Count Five for failure to state a claim under the Massachusetts Equal Rights Act. In support thereof, PetSmart incorporates by reference the Memorandum of Law below. I. INTRODUCTION MEMORANDUM OF LAW PetSmart is a national retail chain that sells specialty pet supplies and services. DB1/

2 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 2 of 17 (See Plaintiffs Amended Complaint ( Compl. ) 34.) Plaintiffs are two advocacy groups and individuals who allege that PetSmart discriminated against them by having in its stores Point-of-Sale ( POS ) devices that lack tactilely discernible keypads and thus require blind customers to reveal their private personal identification number ( PIN ) if they attempted to use a debit card to purchase goods or services. (Id. 2.) Despite the fact that there is no statute or case law that supports Plaintiffs claims that this type of POS device is required, PetSmart has POSs with tactilely discernible keypads in all of its stores at all registers nationwide. (Declaration of Pete Jorgenson ( Jorgenson Decl. ), 12-13, attached hereto as Exhibit 1.) Plaintiffs, nevertheless, are pursuing this class action to seek injunctive relief under Title III of the ADA requesting that the Court order PetSmart to do what it has already done. (Compl. 102.) The Complaint also alleges that some unascertainable, undefinable subset of blind customers who have shopped at PetSmart are entitled to injunctive relief and damages under Colorado, Massachusetts, and Texas law. (Id. 20, 83-85, ) As early as 2007, PetSmart has used POSs with tactilely discernible keypads in its stores. (Jorgenson Decl. 3.) And, in 2014 well before this Complaint was filed or threatened by Plaintiffs, and with an eye toward replacement of all touchscreen-only POS devices PetSmart voluntarily undertook a review of its POS devices in its stores because it became aware that devices with tactile keypads were important to the blind community. (Id. 4.) Following the review that showed that many stores had POS devices with tactile keypads, and others did not, PetSmart began obtaining bids, purchasing, and replacing POS devices across the country in March 2014 with new POSs with tactile keypads. (Id. 5-7.) The replacement process continued into 2015 DB1/

3 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 3 of 17 as it would have with or without this lawsuit and all stores nationwide had new POS devices by July (Id ) Because PetSmart s arguments in its initial motion to dismiss demonstrated that Plaintiffs class and injunctive relief claims should be dismissed, Plaintiffs amended to add a new, and entirely different claim. Specifically, in the new Complaint, Plaintiffs now also allege that the benefits available through PetSmart s loyalty program called PetPerks are not accessible to blind customers because information to confirm such as or physical addresses appear on the POSs and cannot be reviewed by blind customers and, therefore, is read to them. (Compl. 6-7.) Although Plaintiffs cite no authority for their position that reading the address aloud for confirmation is not a reasonable accommodation under the ADA and state laws, that question need not be addressed because Plaintiffs new claim is moot and should be dismissed as a matter of law. Indeed, this verification process no longer exists. Participation in the PetPerks rewards program does not require any such confirmation for any customer. (Declaration of Lorne Jackson ( Jackson Decl. ), 7-13, attached hereto as Exhibit 2.) Because all of PetSmart s POS devices have tactile keypads (Plaintiffs relief requested), and hence do not require a blind customer to have a companion or sales associate enter the PIN, and because its devices are not used to verify addresses or anything else related to the loyalty program for any customers, Plaintiffs claims for injunctive relief are moot. There is nothing for the Court to enjoin. Therefore, the Court lacks subject matter jurisdiction over all the claims seeking injunctive relief. It is black letter law that a request for prospective relief is mooted by a defendant s voluntary compliance where, as here, it is clear that the allegedly wrongful behavior is not DB1/

4 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 4 of 17 reasonably be expected to recur. Tandy v. City of Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000)). Here, PetSmart has no intention of throwing away all its brand new POS devices or changing how they are used. PetSmart has affirmed through declarations that all of its POS devices in all of its stores have tactile keypads, that POS devices are not used for the loyalty program, and that it does not intend to replace the brand new POS devices or utilize them for the loyalty program. (Jorgenson Decl , 15; Jackson Decl. 7, ) 1 Thus, Plaintiffs simply cannot show there is no real and immediate threat of repeated injury. Chambers v. M.H. Melmed, M.D., P.C., 141 F. App x 718, 720 (10th Cir. 2005). Therefore, the requests for injunctive relief in Counts One, Two, Three, and Four of the Complaint should be dismissed. Further, because the injunctive relief sought in the Complaint has already been provided and because the Organization Plaintiffs lack standing to recover damages under any of the Counts of the Complaint, the Organization Plaintiffs should be dismissed under Rule 12(b)(1) because there is no subject matter jurisdiction to consider the Organization Plaintiffs claims. Finally, Plaintiffs also erroneously seek relief under both the Massachusetts Public Accommodation Law ( MPAL ) and the Massachusetts Equal Rights Act ( MERA ), Mass. Gen. Laws ch. 93, 109. (Compl. 127, 133.) Plaintiffs cannot bring a MERA claim here because they have remedies available under the MPAL. As a result, Count Five must also be dismissed. 2 1 A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). 2 PetSmart will address Plaintiffs other Counts at an appropriate time. See Bd. of Cnty. Comm'rs Cnty. of La Plata, Colo. v. Brown Grp. Retail, Inc., No LTB-KMT, 2008 WL , at *1 (D. Colo. DB1/

5 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 5 of 17 II. RELEVANT CLAIMS AND FACTUAL BACKGROUND Count One of the Complaint, filed on behalf of all Plaintiffs, requests injunctive relief under Title III of the ADA and demands that PetSmart for an unspecified period of time certify that its POS devices are fully compliant with ADA s alleged requirement that the devices be fully accessible to legally blind individuals. (Compl ) 3 Count Two, filed on behalf of the Organization Plaintiffs, individual Plaintiffs from Colorado, and an alleged Colorado Subclass, demands monetary relief for each instance of alleged discrimination under the Colorado Anti-Discrimination Act ( CODA ). (Id ) Count Three, filed on behalf of the NFB, individual Plaintiffs from Texas, and an alleged Texas Subclass, demands monetary relief for each instance of alleged discrimination under the Texas Human Resource Code. (Id ) Count Four, filed on behalf of the NFB, individual Plaintiffs from Massachusetts, and an alleged Massachusetts Subclass, demands monetary relief for each instance of alleged discrimination under the MPAL. (Id ) Count Five of the Complaint, filed on behalf of the same Plaintiffs, demands relief from violations of MERA for allegedly excluding the blind or visually impaired from the participation in and benefits of services offered at PetSmart stores. (Id ) Well before this lawsuit was filed, PetSmart had a plan in place to upgrade all of its POS devices to include a tactile keypad at all of its stores. Because tactile keypads are important to blind people and advocacy groups on their behalf, in 2014, PetSmart Oct. 3, 2008) (recognizing that under the language of Fed. R. Civ. P. 12(a), a partial Rule 12(b) motion enlarges the time to file an Answer ). 3 Plaintiffs do not seek, nor are they entitled to, damages for alleged violations of the ADA Title III in Count One. See Rhodes v. S. Nazarene Univ., 554 F. App x 685, 690 (10th Cir. 2014) (holding Title III of the ADA provides for only injunctive relief and not compensatory damages ); McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) ( [P]ast exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effects. ). DB1/

6 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 6 of 17 reviewed its POS devices in its stores. (Jorgenson Decl. 4.) The review determined that there were different types of POS devices in the stores and that while PetSmart had POS devices with tactile keypads in hundreds of stores, they were not at every register in every store. (Id. 5.) As a result of this 2014 review, PetSmart began purchasing and replacing POS devices where needed across the country in 2014 and 2015 so that all checkout lanes in all stores would have a POS device with tactile keypads, such as a Verifone MX925 which was installed as part of this roll-out, and to which Plaintiffs have not objected. (Id. 6-8.) All PetSmart stores nationwide had at every register the new POS devices on or before July 24, 2015 earlier in all 33 stores in Colorado (February 2015), all 24 stores in Massachusetts (May 2015), and all 122 stores in Texas (June 2015). (Id ) 4 PetSmart has no plans to replace the brand new, state-of-the-art POS devices. (Id. 15.) Similarly, PetSmart has changed to a new customer experience which started to roll out in the summer of 2015 and now, as of last month, exists in all stores across the nation. (Jackson Decl ) Notably, this new customer experience does not utilize the POS device for participation in discounts provided through the PetPerks program, but rather, all information necessary to participate in PetPerks is obtained from all customers directly by the sales associate. (Id. 7-8.) The associate verbally requests a phone number to confirm participation or scans the customer s PetPerks card. (Id.) PetSmart found, for example, that this would enhance the customer experience, in part, by increasing the interaction between the customer and the sales associate. (Id. 12.) Accordingly, PetSmart has no intent to modify this customer 4 Notably, this roll out would have been completed earlier but for delays due to the volume of POS devices available to purchase and the time necessary for workers to be assigned to and to remove all touchscreen-only POS devices and to install replacement tactile POS devices. (Jorgenson Decl. 14.) DB1/

7 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 7 of 17 experience, or use the new POSs to verify or phone numbers. (Id. 13.) III. ARGUMENT A. Plaintiffs Title III ADA Claim And State Law Claims Seeking Injunctive Relief Are Moot Because PetSmart Has The POS Devices Requested And It Does Not Have A Loyalty Program That Requires Participation Through POS Devices. Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. Lewis v. Cont l Bank Corp., 494 U.S. 472, 477 (1990). The existence of a live case or controversy is a constitutional predicate to federal court jurisdiction.. Chambers, 141 F. App x at 720. This case-or-controversy requirement subsists through all stages of federal judicial proceedings and requires the parties to continue to have a personal stake in the outcome of the lawsuit. Lewis, 494 U.S. at For example, Plaintiffs here must have a continuing interest in having POS devices with tactile keypads installed in PetSmart stores and/or in having the same opportunities to use the loyalty program as customers who are not blind. A case, although live at the start, becomes moot when intervening acts destroy a party s legally cognizable interest in the outcome of adjudication. In such a case, Article III would deprive the federal courts of jurisdiction over that party s claim. Bacchus v. Denver Dist. Court, No RBJ, 2013 WL , at *2 (D. Colo. Aug. 19, 2013) (quoting Tandy, 380 F.3d at 1290); see also Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010) (courts have no subjectmatter jurisdiction if a case is moot ). The Tenth Circuit also has expressly held that [a] request for prospective [injunctive] relief can be mooted by a defendant s voluntary cessation of the challenged activity. Chambers, 141 F. App x at 720 (finding that a fertility clinic s changes in offered services mooted plaintiff s ADA claim). Indeed, DB1/

8 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 8 of 17 across the country, numerous [f]ederal courts have dismissed ADA claims as moot when the alleged violations have been remedied after the initial filing of a suit seeking injunctive relief. Norkunas v. Tar Heel Capital Wendy s LLC, No , 2011 WL , at *4 (W.D.N.C. July 19, 2011) (dismissing ADA Title III claims as moot because defendants permanently remedied the alleged violations at the properties). 5 Welchly v. Cadence Bank is particularly instructive. In Welchly, a blind plaintiff brought a Title III ADA claim for injunctive relief against the Bank, alleging that its ATM machines lacked features including proper tactile symbols on the function keys in violation of the express ADA regulations governing ATMs WL , at *1. The court granted the defendant s motion to dismiss because, as here, the defendant provided the court with a sworn declaration stating that it had replaced all of the allegedly non compliant ATM machines and plaintiff hence failed to meet her burden of establishing the court s subject matter jurisdiction. Id. at *2-3; see also Bacon v. Walgreen Co., 91 F. Supp. 3d 446, 446. (E.D.N.Y. 2015) (dismissing claims as moot because Walgreens has remedied the Title III ADA claim by widening the exit for wheelchair accessibility). Here, Plaintiffs seek injunctive relief requesting that the Court require PetSmart to install and operate POS devices that are fully accessible to, and independently usable by, legally blind individuals. (Compl. 102.) As in Welchly v. Cadence Bank, PetSmart already has already provided the requested relief and did so when it installed and/or replaced its POS devices across the country. (Jorgenson Decl. 12.) Moreover, 5 See also Brother v. CPL Invs., Inc., 317 F. Supp. 2d 1358, (S.D. Fla. 2004) (same); Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1087 (D. Haw. 2000) (same); Welchly v. First Bank, No , 2014 WL , at *9 (M.D. Tenn. June 12, 2014) (same); Welchly v. Cadence Bank, N.A., No , 2014 WL , at *2-3 (M.D. Tenn. Jan. 23, 2014) (same). DB1/

9 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 9 of 17 even putting aside that there is no authority for the proposition that addresses and physical addresses are protected personal identification information as Plaintiffs incorrectly suggest, 6 PetSmart no longer uses POS devices in connection with its loyalty program. (Jackson Decl. 11.) Because Plaintiffs already have the relief they seek under Count One and Counts Two, Three and Four to the extent they seek injunctive relief, and those claims must be dismissed as moot. 7 B. PetSmart s Voluntary Replacement With Tactile Key POS Devices And Discontinuance Of Use Of POS Devices For The Loyalty Program Moots Plaintiffs Claims Because The Alleged Violations Cannot Reasonably Be Expected To Recur. Plaintiffs claims for injunctive and declaratory relief are moot unless they have a reasonable expectation that the alleged wrong will recur in this case, that PetSmart (absurdly) would throw away all of its new POS devices and replace them with the outdated touchscreen-only POSs similar to those that were voluntarily disposed of and replaced by PetSmart nationwide or that PetSmart would return to a customer experience that it determined to be less effective. See Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1524 (10th Cir. 1992). Because there can be no reasonable 6 Plaintiffs Amended Complaint states that the United States Department of Commerce has identified and physical addresses as information deserving of protection, however, the guidance to which Plaintiffs cite (Compl. 8) explicitly provides that the recommendations within are intended primarily for U.S. government agencies and those who conduct business on behalf of the agencies. ( 7 Plaintiffs state law claims for injunctive relief are also moot because the state laws follow the guidance of the ADA. See Colo. Rev. Stat (4) ( A court that hears civil suits pursuant to this section shall apply the same standards and defenses that are available under the federal [ADA], and its related amendments and implementing regulations. ); Tesmer v. Colo. High Sch. Activities Ass n, 140 P.3d 249, 253 (Colo. App. 2006) ( Whenever possible, the CADA [Colorado Anti-Discrimination Act] should be interpreted consistently with the [ADA].... ); Nathanson v. Mass. Comm n Against Discrimination, No , 2003 WL , at *4 (Mass. App. Ct. Sept. 16, 2003) (the ADA is a statute with objectives similar to those of G.L.c. 272, It is thus appropriate to look to the ADA, and decisions interpreting it, for guidance when interpreting the provisions of the Massachusetts Public Accommodation statute. ); Kuketz v. Petronelli, 821 N.E.2d 473, 476 (Mass. 2005) (The [i]nterpretation of [G.L.c. 272, 98], proceeds hand in hand with the interpretation of the [ADA]. ); Brown v. Lopez, No CV, 2003 WL , at *1 n.1 (Tex. Ct. App. Aug. 13, 2003) ( Because this section [Texas Human Resources Code (c)] is substantially similar to the ADA, we will limit our analysis to the ADA. ). DB1/

10 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 10 of 17 expectation that this will happen, or hence, that the alleged injury would recur, Plaintiffs claims for injunctive relief are moot and should be dismissed. Tandy, 380 F.3d at 1291 (10th Cir. 2004); see also Welchly v. Cadence Bank, 2014 WL , at *2-3 (dismissing complaint seeking both a declaratory judgment and injunctive relief on mootness grounds); Cleveland v. Martin, 590 F. App x 726, (10th Cir. 2014) (finding claims for both injunctive and declaratory relief were moot because neither would provide any real-world effect ). In Tandy, 380 F.3d at 1281, the Tenth Circuit affirmed the dismissal of plaintiffs ADA Title III claims relating to wheelchair lifts on city buses and picking up passengers in wheelchairs because the claims were mooted, leaving the court with no Article III jurisdiction. The court determined that the installation of new equipment and instructions to drivers to deploy lifts at all bus stops for disabled riders demonstrated in documents submitted by the City sufficiently demonstrated the permanency of the changes, i.e., the plaintiffs can have no reasonable expectation that alleged wrong will recur. Id. at Similarly, in Welchly v. Cadence Bank, 2014 WL , at *2-3, the court dismissed the plaintiff s claims as moot, relying on a sworn statement from the defendant s Senior Vice President of EFT and ATM Operations stating that the bank had successfully remedied all the ADA violations alleged by the plaintiff. The court held that the declaration satisfied defendant s burden of demonstrating that its allegedly wrongful behavior cannot be reasonably expected to recur. Id. at *3. Similarly, here, through declarations from its Vice President of IS Technical Infrastructure and its IS Director of Store and Payment Technology, PetSmart has sufficiently established that the changes made to the POS devices and nonuse of them for the loyalty program are DB1/

11 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 11 of 17 sufficiently permanent in nature thereby establishing that the challenged POSs are unlikely to re-appear and that the Plaintiffs cannot reasonably expect the issue to recur. (Jorgenson Decl. 12, 15; Jackson Decl ) C. The Organization Plaintiffs Lack Standing To Pursue Their State Law Claims for Monetary Damages And Hence Should Be Dismissed. The Supreme Court has outlined two ways in which a group, organization or association can establish standing: organizational standing and associational standing. Hunt v. Wash. State Apple Advert. Comm n, 432 U.S. 333, 343 (1977); Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The NFB and CCDC satisfy neither. [O]rganizational standing, permits a group to allege standing on its own behalf for injuries directly inflicted upon the organization. Equal Rights Ctr. v. Abercrombie & Fitch Co., 767 F. Supp. 2d 510, 518 (D. Md. 2010) (relying on Warth v. Seldin, 422 U.S. 490, 511 (1975)) (emphasis added). Here, the Organization Plaintiffs vaguely assert that their efforts and purpose have somehow been adversely affected by PetSmart s conduct. (Compl ) Mere allegations of injury, however, are insufficient to establish standing. Rather, the organization must demonstrate that it can overcome the prudential limitations that often prevent organizational standing. Equal Rights Ctr., 767 F. Supp. 2d at 520. Prudential limitations on standing are a set of judicially selfimposed limits on the exercise of federal jurisdiction that generally require a plaintiff to assert its own legal rights and interests; the claim(s) cannot rest on the legal rights or interests of third parties, i.e., in this case, members of the organization. See, e.g., The Wilderness Soc y v. Kane Cnty., Utah, 632 F.3d 1162, 1168 (10th Cir. 2011); see also Mountain States Legal Found. v. City & Cnty. of Denver, 567 F. Supp. 476, 479 (D. DB1/

12 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 12 of 17 Colo. 1983) ( Even if a plaintiff has Article III standing to litigate a claim, statutory and judicial prudential limitations on standing may render the claim non-justiciable. ). To overcome the prudential limitations on standing necessary for organizational standing, a plaintiff must show that the statute(s) under which it seeks relief included an intention by the legislature to allow an organization to pursue such a claim and/or seek recovery for damages. Colorado Rail Passenger Ass'n v. Fed. Transit Admin., 843 F. Supp. 2d 1150, 1170 (D. Colo. 2011); see also Equal Rights Ctr., 767 F. Supp. 2d at 529 (dismissing organization s state law claims after finding no indication that the Massachusetts or Wisconsin legislatures intended to eliminate the generally applicable prudential limitations on standing ). Here, similar to Equal Rights Ctr. v. Abercrombie, there is no indication from the statutory language of the state statutes pursued by Plaintiffs that the legislatures of Colorado, Massachusetts, or Texas intended to eliminate the generally applicable prudential limitations on standing. See Colo. Rev. Stat. Ann (2)(a) (limiting the availability of statutory fines and monetary damages to qualified individual[s] with a disability ); Mass. Gen. Laws Ann. ch. 272, 98 (limiting statutory damages to person aggrieved ); Tex. Hum. Res. Code Ann (4) (limiting applicability of the statute to a person with a disability ). As a result, the Organization Plaintiffs fail to meet the prudential standing requirements to pursue claims resulting from any alleged injuries suffered directly by members of the NFB or CCDC. The Organization Plaintiffs also cannot establish associational standing. To establish associational standing, a plaintiff must show, among other things, that neither the claim asserted nor the relief requested requires the participation of individual DB1/

13 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 13 of 17 members in the lawsuit. Nat'l Fed'n of the Blind of Nebraska, Inc. v. Outlook Nebraska, Inc., No , 2011 WL , at *5 (D. Neb. Oct. 11, 2011); see also S. Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1153 (10th Cir. 2013) (finding organization had associational standing when the lawsuit did not seek damages but instead only challenged a decision by the Bureau of Land Management and therefore, unlike here, did not require the participation of any individual member ); Kansas Health Care Ass'n, Inc. v. Kansas Dep't of Soc. & Rehab. Servs., 958 F.2d 1018, 1021 (10th Cir. 1992) (reversing district court s finding of organizational standing where the claims asserted, like in this case, unavoidably require individual participation ); Owner- Operator Indep. Driver Ass'n, Inc. v. USIS Commercial Servs., Inc., d/b/a DAC Servs., No REB-CBS, 2006 WL , at *2 (D. Colo. July 28, 2006) (dismissing organization plaintiff because, as in this case, the relief requested require that individual members of the association participate in this suit ). Here, the Organization Plaintiffs lack associational standing for damages under Counts Two, Three and Four of the Complaint because the Court s evaluation of the relief requested, i.e., damages and/or penalties requires the participation of [the] individual members of the lawsuit. See Outlook Nebraska, 2011 WL , at *5. Specifically, [w]hen an association seeks relief in damages, the damages claims are not common to the entire membership [of a group], nor shared by all in an equal degree. Wein v. Am. Huts, Inc., 313 F. Supp. 2d 1356, 1360 (S.D. Fla. 2004) (quoting Warth, 422 U.S. at 515). In this case, the claims for damages are not common to all members of the Organization Plaintiffs. Some members may have never shopped at a PetSmart store or joined the loyalty program, others may not have a debit card, others DB1/

14 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 14 of 17 may prefer to and/or only pay in cash, others may shop only in the store in one or more of the 47 states which are not at issue in this case, others may have shopped at a PetSmart store only when that store had one or more tactile keypad POS devices, and yet other members may have used a POS device in a PetSmart store years back when the store did not have the newer model POSs. 8 Regardless of the countless likely scenarios, it is clear that recovery of damages under Counts Two, Three, and Four is dependent on individualized facts, and hence requires individualized proof by any individual member asserting damages under any of these laws. As a result, in addition to all their claims for injunctive relief being moot, the Organization Plaintiffs also lack standing to pursue damage claims on behalf of its members. Accordingly, because the injunctive relief sought by the Plaintiffs has been provided and, therefore, is a moot issue, and the Organization Plaintiffs do not have organizational or associational standing to pursue damages claims under the state laws at issue, the Court should dismiss all of the Organization Plaintiffs claims. D. Plaintiffs MERA Claim Should Be Dismissed Under Rule 12(b)(6). Rule 12(b)(6) empowers the Court to dismiss claims that fail to state a claim upon which relief may be granted. Voda v. Medtronic, Inc., No , 2011 WL , at *1 (W.D. Okla. Aug. 17, 2011). In deciding such a motion, the court s role is to assess whether the plaintiff s complaint alone is legally sufficient to state a claim for which relief may be granted. Id. (quoting Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). Count Four of the Complaint seeks to bring class claims under MPAL, Mass. 8 Plaintiffs allege that they could not get cash back from a credit card purchase at PetSmart s POS devices. (Compl. 2, 12.) However, PetSmart does not permit cash back on a credit card on both previous and new POS devices. (Jorgenson Decl. 16.) DB1/

15 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 15 of 17 Gen. Laws ch. 272, 98; Count Five of the Complaint seeks to bring class claims under MERA, Mass. Gen. Laws ch. 93, 103. (Compl ) It is well established that Plaintiffs, as a matter of law, cannot bring a MERA claim here because they have remedies available under Mass. Gen. Laws ch. 151B, 5 namely, the MPAL. The MPAL makes available such damages as are enumerated in section five of chapter one hundred and fifty-one B. Mass. Gen. Laws ch. 272, 98. Moreover, if a remedy under G.L. c. 151B is available to a plaintiff, he may not pursue a remedy under G.L. c. 93, 103 [MERA]. Pressman v. Brigham Med. Grp. Found. Inc., 919 F. Supp. 516, 524 (D. Mass. 1996) (summarily dismissing MERA claim because remedy was available under ch. 151B) (quoting Agin v. Fed. White Cement, Inc., 632 N.E.2d 1197, 1199 (Mass. 1994)); see also Martin v. Envelope Div. of Westvaco Corp., 850 F. Supp. 83, 93 (D. Mass. 1994) (summarily dismissing MERA claim because [a]s a matter of law, MERA does not provide separate remedies for... discrimination over and above those provided by Mass. Gen. Laws ch. 151B ). Accordingly, the Court should dismiss the MERA claim of Plaintiffs NFB, Mark Cadigan, and Jessica Fordyce given the availability of the MPAL under which they also bring a claim. IV. CONCLUSION For the reasons discussed above, PetSmart respectfully requests that the Court enter an order dismissing, with prejudice: (i) Plaintiffs ADA claim and their state claims to the extent they seek injunctive relief because PetSmart already has in place the remedies requested by Plaintiffs and the alleged violations cannot reasonably be expected to recur; (ii) the Organization Plaintiffs because they lack standing to pursue any remaining damage claims before the Court; and (iii) Plaintiffs MERA claim (Count Five) because it fails to state a claim upon which relief may be granted. DB1/

16 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 16 of 17 November 5, 2015 Respectfully submitted, /s/ Christopher K. Ramsey Christopher K. Ramsey MORGAN, LEWIS & BOCKIUS LLP One Oxford Centre, 32nd Floor Pittsburgh, PA (412) Anne Marie Estevez MORGAN, LEWIS & BOCKIUS LLP 200 South Biscayne Boulevard Miami, FL (305) W.V. Bernie Siebert Jonathon M. Watson SHERMAN & HOWARD L.L.C th Street, Suite 3000 Denver, CO (303) Counsel for Defendant PetSmart, Inc. DB1/

17 Case 1:15-cv REB-KMT Document 54 Filed 11/05/15 USDC Colorado Page 17 of 17 CERTIFICATE OF SERVICE I hereby certify that on this 5th day of November, 2015, I filed and served a true and correct copy of the foregoing DEFENDANT S PARTIAL MOTION TO DISMISS PLAINTIFFS AMENDED COMPLAINT AS MOOT AND MEMORANDUM OF LAW via the CM/ECF system on the following: Jana Eisinger Douglas W. Lambalot MARTINEZ LAW GROUP, P.C. 720 South Colorado Boulevard South Tower, Suite 1020 Denver, CO eisinger@mlgrouppc.com lambalot@mlgrouppc.com Scott C. LaBarre LABARRE LAW OFFICES, P.C South Albion Street, Suite 918 Denver, CO slabarre@labarrelaw.com Kevin W. Williams COLORADO CROSS-DISABILITY COALITION LEGAL PROGRAM 655 Broadway, Suite 775 Denver, CO kwilliams@ccdconline.org Pursuant to D.C.COLO.LCivR 6.1(c), Defendant s counsel is contemporaneously serving its client via . /s/ Christopher K. Ramsey DB1/