9th Circuit Dominos Opinion
9th Circuit Dominos Opinion
9th Circuit Dominos Opinion
FOR PUBLICATION
*
The Honorable Jennifer G. Zipps, United States District Judge for
the District of Arizona, sitting by designation.
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SUMMARY **
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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COUNSEL
OPINION
The district court first held that Title III of the ADA
applied to Domino’s website and app. The court highlighted
the ADA’s “auxiliary aids and services” section, 42 U.S.C.
§ 12182(b)(2)(A)(iii), which requires that covered entities
provide auxiliary aids and services to ensure that individuals
with disabilities are not excluded from accessing the services
of a “place of public accommodation”—in this case, from
using the website or app to order goods from Domino’s
physical restaurants.
1
WCAG 2.0 guidelines are private industry standards for website
accessibility developed by technology and accessibility experts. WCAG
2.0 guidelines have been widely adopted, including by federal agencies,
which conform their public-facing, electronic content to WCAG 2.0
level A and level AA Success Criteria. 36 C.F.R. pt. 1194, app. A
(2017). In addition, the Department of Transportation requires airline
websites to adopt these accessibility standards. See 14 C.F.R. § 382.43
(2013). Notably, the Department of Justice has required ADA-covered
entities to comply with WCAG 2.0 level AA (which incorporates level
A) in many consent decrees and settlement agreements in which the
United States has been a party.
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3
We recognize that DOJ withdrew its ANPRM on December 26,
2017, so the district court did not have the benefit of considering this
withdrawal when it issued its decision on March 20, 2017. See
Nondiscrimination on the Basis of Disability, 82 Fed. Reg. 60932-01
(Dec. 26, 2017).
4
Only after Robles filed this suit, Domino’s website and app began
displaying a telephone number that customers using screen-reading
software could dial to receive assistance. The district court noted that
Robles had “failed to articulate why [Domino’s] provision of a telephone
hotline for the visually impaired . . . does not fall within the range of
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III. DISCUSSION
5
The ADA exempts covered entities from the requirement to
provide auxiliary aids and services where compliance would
“fundamentally alter the nature of the good, service, facility, privilege,
advantage, or accommodation being offered or would result in an undue
burden.” 42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R.
§ 36.303(a). At this stage, Domino’s does not argue that making its
website or app accessible to blind people would fundamentally alter the
nature of its offerings or be an undue burden.
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6
We need not decide whether the ADA covers the websites or apps
of a physical place of public accommodation where their inaccessibility
does not impede access to the goods and services of a physical location.
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B. Due Process
7
See, e.g., Robles v. Yum! Brands, Inc., 2018 WL 566781, at *4
(C.D. Cal. Jan. 24, 2018); Rios v. N.Y. & Co., Inc., 2017 WL 5564530,
at *3 (C.D. Cal. Nov. 16, 2017); Reed v. CVS Pharmacy, Inc., 2017 WL
4457508, at *3 (C.D. Cal. Oct. 3, 2017); Gorecki v. Hobby Lobby Stores,
Inc., 2017 WL 2957736, at *3–4 (C.D. Cal. June 15, 2017); Target,
452 F. Supp. 2d at 953; Gomez v. Gen. Nutrition Corp., 323 F. Supp. 3d
1368, 1375–76 (S.D. Fla. 2018); Castillo v. Jo-Ann Stores, LLC, 286 F.
Supp. 3d 870, 881 (N.D. Ohio 2018); Gil v. Winn-Dixie Stores, Inc.,
257 F. Supp. 3d 1340, 1348–49 (S.D. Fla. 2017), appeal docketed, No.
17-13467 (11th Cir. Aug. 1, 2017).
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8
The district court also held (in error) that Robles conceded
Domino’s due process argument by not squarely addressing it at the
motion to dismiss stage. The relevant issue here is whether Domino’s
website and app comply with the ADA. Domino’s due process argument
is a defense to that issue. Domino’s cites no authority holding that a
plaintiff’s failure to respond to a defense waives the plaintiff’s cause of
action (here, the ADA). Regardless, “an issue will generally be deemed
waived on appeal if the argument was not raised sufficiently for the trial
court to rule on it.” In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
988, 992 (9th Cir. 2010) (internal quotation marks omitted). Here, the
parties raised the matter sufficiently for the district court to dedicate four
pages to this issue, and Robles did not waive his ability to respond to
Domino’s due process argument.
9
In Village of Hoffman Estates, the Supreme Court explained: “The
degree of vagueness that the Constitution tolerates—as well as the
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10
See, e.g., Baughman v. Walt Disney World Co., 685 F.3d 1131,
1135 (9th Cir. 2012) (holding that, to provide “full and equal
enjoyment,” public accommodations must “consider[] how their
facilities are used by non-disabled guests and then take reasonable steps
to provide disabled guests with a like experience”); Fortyune v.
American Multi-Cinema, 364 F.3d 1075, 1085 (9th Cir. 2004)
(interpreting “full and equal enjoyment” to require theater to provide
wheelchair seating and adjacent seat for plaintiff’s wife); see also, e.g.,
McGann v. Cinemark, 873 F.3d 218, 223 (3d Cir. 2017) (holding that
theater’s failure to provide deaf patron with sign language interpreter—
an auxiliary aid or service—excluded him from services); Argenyi v.
Creighton Univ., 703 F.3d 441, 449 (8th Cir. 2013) (holding that
university must provide reasonable auxiliary aids and services to
partially deaf medical student to afford him opportunity equal to his
nondisabled peers).
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IV. CONCLUSION
11
We also reverse the dismissal of Robles’ UCRA claims and
remand for proceedings consistent with this opinion.