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United States District Court for the Eastern District of New York
August 11, 2020, Decided; August 11, 2020, Filed
CV 18-1127 (SJF)(ARL)
REPORT AND RECOMMENDATION
LINDSAY, Magistrate Judge:
Before the Court on referral from District Judge Feuerstein is Hilton Domestic Operating Company, Inc.'s ("Defendant") motion to dismiss Plaintiff Albert Rizzi's Third Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1). For the reasons set forth below, the undersigned respectfully recommends that Defendant's motion be granted.
The Court presumes familiarity with the facts and procedural history of this case and only includes those facts that are necessary for resolution the instant motion. The facts set forth in this report were drawn from the Third Amended Complaint and the affidavits submitted in support of and in opposition to the motion. The facts are taken as true for purposes of deciding the instant motion.
Plaintiff, Albert Rizzi, is legally blind [*2] and uses screen-reading software, a technology that allows people who are visually impaired to access websites. Third Amended Complaint (3rd Am. Compl.") ¶¶ 13, 21. Defendant is a hospitality services company that offers hospitality services to individuals across the United States, has offices throughout the United States, operates websites to provide its clients information on various aspects of their hospitality services and allows for the payment of such services online. Id. at ¶¶ 14, 15.
In the Third Amended Complaint, Plaintiff repeats his claims that he has been unable to utilize Defendant's websites to make reservations for several hotel stays. Plaintiff claims that from March 2016 to the present, Plaintiff "at numerous times . . . attempted on many occasions to utilize Defendant Hilton's websites . . . to learn about the services and products available and payment methods for such and also make hotel reservations." Id. at ¶ 25. In the Third Amended Complaint Plaintiff identifies four websites which he claims he has been unable to access: www.hilton.com/en/ ("Main Website"), www.hilton.com/en/doubletree/ ("DT Site"), www.hilton.com/en/hilton-garden-inn/ ("HGI Site"), and www.hilton.com/en/hampton/ [*3] ("H Site").1 Id. at ¶ 18. According to Plaintiff, "Defendant Hilton's websites, specifically, the Main Website, DT Site, HGI Site and H Site, did not integrate with Plaintiff's screen reader software, nor was there any function within Defendant's website to permit access for visually impaired through other means." Id. at ¶ 27. Plaintiff alleges that he attempted to visit each of the four listed websites between 8:00 a.m. and 9:00 a.m. daily, between two to four weeks prior to each of his stays but was unable to make a reservation. See, e.g., id. at ¶¶ 29, 33, 35. A list of each of Plaintiff's stays is set forth in Paragraph 28. In each instance, Plaintiff alleges "he was unable to access these websites to make a reservation for his trip." Id. at ¶¶ 29, 33, 35.2 Thus, according to the Third Amended Complaint, for each of Plaintiff's more than a dozen hotel stays during the relevant time period he unsuccessfully attempted to make a reservation on each of the four websites in question.
In the Third Amended Complaint, just as in the Second Amended Complaint, Plaintiff lays out a laundry list of errors on Defendant's websites, claiming the websites contain several types of Programming Error [*4] Types ("PETs") (easily identifiable and correctable), which occur throughout the website including the language of the document is not identified, image alternative text is not present, the home page contains unlabeled links, the home page has insufficient heading structure, the search results page contains insufficient color contrast, the search results page contains insufficient heading structure and the form control does not have a corresponding label. Id. at ¶ 76. Additionally, Plaintiff claims that Defendant's websites contain various types of Programing Alert Error Types ("PATs") (prone to making the website inaccessible), which occur throughout the website, including alternative text is likely insufficient or contains extraneous information, an event handler is present that may not be accessible, a heading level is skipped, flash content is present, adjacent links go to the same URL, a link contains no text, and alternative text is likely insufficient or contains extraneous information. Id. at ¶ 76. Plaintiff claims that these errors were apparent on each of the four websites, however, he does not specify the nature of the difficulties he encountered on any of the websites in [*5] question. Id. at ¶¶ 76, 77.
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2020 U.S. Dist. LEXIS 144884 *
ALBERT RIZZI, Plaintiff, -against- HILTON DOMESTIC OPERATING COMPANY, INC., Defendant.
Prior History: Rizzi v. Hilton Domestic Operating Co., 2019 U.S. Dist. LEXIS 120999 (E.D.N.Y., July 18, 2019)
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