United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
N. Scola, Jr. United States District Judge.
matter is before the Court upon the Defendant Chevron
Corporation's motion to dismiss for lack of personal
jurisdiction under Rule 12(b)(2) of the Federal Rules of
Civil Procedure. (Mot., ECF No. 17.) After careful
consideration of the motion, all opposing and supporting
submissions, the record in this case and the applicable case
law, the Court grants the motion to dismiss
(ECF No. 17).
filed the instant lawsuit under Title III of the Americans
with Disabilities Act of 1990, 42 U.S.C. §§
12181-12189 (the “ADA”), alleging that the
Defendant's website, www.chevron.com, is inaccessible to
the visually impaired. (ECF No. 1 ¶¶ 1-3.) The
Defendant is an American multinational energy corporation
with multiple franchised gasoline stations in Florida.
(Id. ¶ 16.) The Defendant's website allows
consumers to locate Chevron gasoline stations, and supports
sales and services at the physical locations. (Id.
Plaintiff is legally blind, and therefore a member of a
protected class under the ADA. (Id. ¶¶ 1,
15.) As a legally blind individual, he must use screen reader
software to access and comprehend information on the
internet. (Id. ¶ 20.) The Plaintiff alleges
that when he attempted to access the Defendant's website,
the website did not integrate with his screen reader software
and the website was inaccessible as a result. (Id.
¶ 22.) The Plaintiff claims that if the Defendant's
website was accessible, he would have been able to
independently research products and services offered at the
Defendant's gasoline stations and visited one of those
gasoline stations for in-person purchases. (Id.
Defendant, a Delaware corporation, is seeking dismissal under
Rule 12(b)(2) of the Federal Rules of Civil Procedure for
lack of personal jurisdiction.
considering a motion to dismiss for lack of personal
jurisdiction, the Court conducts a two-part analysis.
Future Tech. Today, Inc. v. OSF Healthcare
Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (citation
omitted). First, the Court must determine whether the
applicable state long-arm statute is satisfied. Id.
at 1249 (citation omitted). Second, if the state long-arm
statute is satisfied, the Court must analyze whether the
exercise of jurisdiction over the defendant is consistent
with the Due Process Clause of the Fourteenth Amendment.
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d
1339, 1350 (11th Cir. 2013).
plaintiff bears the initial burden of proof of pleading
sufficient material facts to support long-arm jurisdiction.
Future Tech. Today, Inc., 218 F.3d at 1249. The
burden then “shifts to the defendant to make a prima
facie showing of the inapplicability of the statute.”
Id. (quoting Prentice v. Prentice Colour,
Inc., 779 F.Supp. 578, 583 (M.D. Fla. 1991)). Once this
prima facie showing is made, “the plaintiff is required
to substantiate the jurisdictional allegations in the
complaint by affidavits or other competent proof, and not
merely reiterate the factual allegations in the
Defendant requests dismissal arguing that, because the
Plaintiff's claim is based on website design and
programming, and the Defendant's website was designed and
is maintained outside of Florida, the Court lacks personal
jurisdiction in this case. (See Aff. of Kari H.
Endries, ECF No. 17 at 10.) The Defendant argues further that
the Plaintiff's claim is not based on any of
Chevron's activities in Florida. However, properly
construed, the Plaintiff's claim asserts that the
Defendant's physical locations in Florida are
inaccessible to blind individuals in violation of the ADA
because the website, which constitutes in part a tool to
locate physical stores, does not interface with the
Plaintiff's screen reading software. Thus, the
Defendant's arguments do not correctly characterize the
Plaintiff's claim. Nevertheless, the Plaintiff must
sufficiently allege facts to support long-arm jurisdiction in
the first instance. Accordingly, the Court examines the
jurisdictional allegations in the complaint.
pertinent part, the Plaintiff alleges that the
Defendant's physical store locations and website work
collectively, and together offer services to the public in
South Florida. (Compl., ECF No. 1 ¶ 16.) In addition,
the Plaintiff alleges that the website is offered as a tool
to locate physical gasoline stations. (Id. ¶
4.) Upon review, these allegations alone are insufficient to
satisfy the long-arm statute.
the Plaintiff claims that Chevron does substantial business
in South Florida and that its stores in South Florida work in
conjunction with its website, it is not apparent upon which
basis the Court may find the long-arm statute to be
satisfied. In his response (ECF No. 18), the
Plaintiff argues that because the website is intended to be
used in conjunction with brick and mortar locations in
Florida, and the Defendant solicits customers in Florida
through its website, Chevron has established sufficient
minimum contacts to support the exercise of personal
jurisdiction. However, the Plaintiffs argument conflates the
two prongs of the Court's analysis, and in any event, the
Plaintiff may not amend the factual allegations in the
complaint in his response to the motion to dismiss. See
Burgess v. Religious Tech. Ctr., Inc., 665 (11th Cir.
2015) (citing Rosenberg v. Gould, 554 F.3d 962, 967
(11th Cir. 2009)) (noting that the Eleventh Circuit has
“repeatedly [ ] held that plaintiffs cannot amend their
complaint through a response to a motion to dismiss.”);
see also Tsavaris v. Pfizer, Inc., No.
1:15-cv-21826-KMM, 2016 WL 375008, at *3 (S.D. Fla. Feb. 1,
2016) (Moore, J.) (“A plaintiff, though, cannot amend
the complaint in a response to a motion to dismiss, for a
court's review on dismissal is limited to the four
corners of the complaint.”) (citing St George v.
Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir.
result, as currently pled, the Plaintiff fails to satisfy the
initial burden of pleading sufficient facts to ...