MEMORANDUM OPINION ON DEFENDANTS' MOTION TO COMPEL ARBITRATION ECF No. 24.

LISA PUPO LENIHAN, Magistrate Judge.

I. SUMMATION

For the reasons set forth below, the August 23, 2019 Motion to Compel Arbitration filed by Defendants Uber Technologies, Inc.; Rasier, LLC; and Rasier-CA, LLC (collectively "Uber"), ECF No. 24, will be denied.

II. FACTUAL AND PROCEDURAL HISTORY

The above-named Plaintiffs (collectively "Plaintiffs") filed a June 11, 2019 Complaint, ECF No. 1, followed by a July 12, 2019 First Amended Complaint, ECF No. 10, seeking class certification and injunctive and declaratory relief. Plaintiffs are Pennsylvania residents and a non-profit corporation headquartered in Pittsburgh, Pennsylvania; Defendants are Delaware corporations. Uber provides a ridesharing service which allows mobile smartphone application ("App") users to call an available vehicle driver when they need transportation.

Plaintiffs — like other plaintiffs in similar actions filed in Federal District Courts against Uber or Lyft, Inc., another ridesharing transportation company — allege that Defendants are in violation of Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., (the "ADA"). Plaintiffs allege Defendants' violation of both (1) Section 12182's prohibitions of disability discrimination with regard to places of public accommodation and (2) Section 12184's prohibitions with regard to public transportation services provided by private entities.1 More specifically, Plaintiffs allege that individuals such as themselves, who rely on wheelchairs for mobility and thus also wheelchair accessible vehicles ("WAVs") for transportation, are injured by Defendants' failure to provide any access to its on-demand ridesharing transportation service to disabled individuals requiring WAVs in Allegheny County, Pennsylvania. ECF No. 10; Plaintiffs' Response in Opposition, ECF No. 35 at 1.

Plaintiffs' allegations include that:

ECF No. 10 at 2.

Plaintiffs further allege that each individual Plaintiff (1) would use Uber but for the unavailability of WAVs and (2) has not downloaded Uber's application because s/he knows that doing so would be futile while WAVs are unavailable through Uber in Pittsburgh.2

Customers signing up for Uber's services must download and create an account using the Uber Rider App ("Uber App"). The terms and conditions required to be accepted to use the Uber App ("Terms of Use") include an arbitration provision. Defendants do not dispute that no named Plaintiff has created an account or entered into a service agreement with Uber.

Defendants filed their Motion to Compel Arbitration and Memorandum of Points and Authorities ("Brief in Support"), ECF No. 24 and 25 respectively, on August 23, 2019; Plaintiffs filed their Repose in Opposition, ECF No. 35, on September 30th; and Defendants filed their Reply in Further Support, ECF No. 38, on October 15th.

III. ANALYSIS

Uber's service agreement is a contract subject to the Federal Arbitration Act, 9 U.S.C. § 2 (the "FAA") and the District Court must compel a signatory party to a valid arbitration agreement to abide by those terms as to any dispute. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985). Conversely, parties who have not assented to an arbitration agreement generally cannot be compelled to arbitrate. E.E.O.C. v. Waffle House, 534 U.S. 279, 293 (1989); Bel-Ray Co., Inc. v. Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir. 1999) ("Arbitration is strictly a matter of contract. If a party has not agreed to arbitrate, the courts have no authority to mandate [arbitration].") Plaintiffs, having "never downloaded the Uber App . . . lacked notice of Uber's terms and conditions, including its embedded arbitration provision, and never manifested their intention to be bound." Namisnak v. Uber Technologies, Inc., 315 F.Supp.3d 1124, 1127 (N.D. Cal. 2018).

Uber's Brief in Support, ECF No. 25, contends that "this is not an appropriate forum", asserting that Plaintiffs are equitably estopped from refusing to arbitrate3 because (1) their claims necessarily "implicate" Uber's Terms of Use and (2) their standing to sue as deterrence-injury plaintiffs is based on allegations that they would have contracted with Uber but for its discriminatory policies, thus again necessarily incorporating Uber's arbitration conditions. In sum, Defendants argue that Plaintiffs are barred from Federal forum selection and this litigation because they cannot maintain an action apart from Uber's requisite Terms of Use, i.e., that their claims cannot "exist[] independent of the contract." ECF No. 38 at 1, 3.

First, Defendants contend — as they did last year, before Judge Seeborg in the Northern District of California — that Plaintiffs who have not entered into a service contract with Uber and raise claims under the ADA are nonetheless equitably estopped from bringing such claims in Federal Court by the arbitration provisions of Uber's service contract because they must rely on the contract terms by which Uber offers goods and services to the general public to bring their action. See, e.g., ECF No. 38 at 2 ("Plaintiffs are bound by the arbitration agreement in Uber's Terms of Use based on settled principles of equitable estoppel. Plaintiffs embrace the Terms of Use . . . as a fundamental component of their claim on the merits.");4 id. at 4-5. This Court is in entire accord with Judge Seeborg's dismissal of this assertion. Namisnak, 315 F.Supp.3d 1124.5

In Namisnak, as here, Uber argues that Plaintiffs necessarily rely on Uber's service contract to bring suit and should therefore be estopped from avoiding its obligations. Id. at 1128. As Judge Seeborg explained, however, Plaintiffs "assert claims against Uber based on rights created by the ADA, which are not dependent upon or bound up in the terms and obligations of Uber's service agreement. It is Uber's alleged refusal to comply with the requirements of the ADA, not the requirements of its consumer agreements, which form the basis of this lawsuit." Id. The essence of Plaintiffs' Complaint is that they have been excluded — by Defendants' disability discrimination — from participation in Defendants' increasing market share of available public transportation. Defendants reply that they could not be charged with illegal discrimination if they were not offering goods or services and thus their contract provisions apply.

Defendants elected to offer goods and/or services and in doing so were required to comply with any applicable Federal regulations, including the ADA; thus they can be charged with violation of Federal disability laws. Defendants' liability, if any, arises from their conduct as measured against the provisions of Federal law. The sine qua non is the ADA.6 As Plaintiffs argue, their claims are "based on Uber's failure to comply in its business practices with anti-discrimination law . . . ." ECF No. 35 at 2.

Second, Defendants contend that Plaintiffs necessarily "embrace" Uber's Terms of Use "for their benefit . . . in pursuit of Article III standing." ECF No. 38 at 1; ECF No. 25 at 5. More specifically, Defendants contend that Plaintiffs embrace the contract by asserting a deterrent-effect injury and thus seeking "essentially to step into the shoes" of "actual Uber Rider App users who all are bound by Uber's Terms of Use." ECF No. 38 at 2-3.

Plaintiffs' Article III standing is established by (1) injury in fact, (2) causal connection, and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-61 (1992). As to the element here at issue, injury in fact, Plaintiffs correctly quote the ADA's provision that its protections include any person "who has reasonable grounds for believing" s/he will be subjected to discrimination. 42 U.S.C. § 12188(a)(1). See ECF No. 35 at 3.7 Also relevant is the Supreme Court's 1977 conclusion — in its lengthy Opinion on race discrimination in employment — that one "can be a victim of unlawful discrimination entitled to make-whole relief" despite being unwilling "to engage in a futile gesture" or "useless act", or "subject [oneself] to the humiliation of explicit and certain rejection." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 366-67 (1977).

Indeed, as the Ninth Circuit has noted, the ADA's provision that "it does not require `a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization . . . does not intend to comply' with the ADA" is "taken from Teamsters", which "held that plaintiffs who did not actually apply . . . could nevertheless challenge" discrimination "if they could show that they would have applied . . . if not for [such] discriminatory practices." Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1136 (9th Cir. 2002) (citing Section 12188(a)(1) and noting that these provisions "[s]eek to avoid unreasonable burdens on ADA plaintiffs"); see also id. ("Congress specifically intended that Teamsters' `futile gesture' reasoning be applied to ADA claims. See H. Rep. No. 101-485(II) at 82-83 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 365 (`The Committee intends for this doctrine to apply to this title')").

To be clear, then, an individual's standing to bring a claim for disability discrimination under the ADA is not dependent on his/her undertaking futile gestures. To the contrary, such plaintiffs have their own standing; their deterrence-based injury is actual, cognizable and their own. See ECF No. 35 at 1 ("Plaintiffs . . . would have attempted to use Uber's services to travel to and from activities, but did not, because they knew— as a result of incidents they witnessed or heard about from friends and family—that Uber's services are inaccessible to them."), id. at 3 (quoting Section 12188(a)(1)).8 Compare ECF No. 38 at 3.

In addressing the parties' arguments on the available substantive rights remedies for the employer's unlawful discrimination, the Supreme Court in Teamsters faced the open question of "whether [retroactive] seniority relief may be awarded to nonapplicants". 431 U.S. at 364.9 It held that deterrence-injury plaintiffs — e.g., those who did not endeavor employment with a defendant whose known discrimination would make it a "vain gesture" — were "as much [victims] of discrimination as [those] who [went] through the motions" and could thus be entitled to the same employment redress when the District Court fashioned relief to effect the most complete, discrimination-deterrent restitution possible. Id. at 364-367 (emphasis added). Defendants' representation that this "seminal decision on deterrent-effect injuries" places Plaintiffs in "the same litigation position" as individuals who actually contracted with Uber — i.e., that they are bound to Uber's arbitration agreement and precluded from selecting a Federal forum — reflects a fundamental misreading of Teamsters. See ECF No. 38 at 1.10

Moreover, Defendants' briefing notwithstanding, the Third Circuit's Opinion in Bates v. Tandy Corp., 186 F.App'x 288 (3d Cir. 2006), merely distinguished Teamsters from Bates — an employment race discrimination case dismissed on summary judgment — noting that the record did not support plaintiffs' claim of futility and that:

186 F.App'x at 293-94 (citing Teamsters, 431 U.S. at 363-64).

The Ninth Circuit's Opinion in Pickern affirmed the applicability of Teamsters' "futile gesture" doctrine to determinations that deterrence-based injuries are independent, cognizable claims under the ADA. 293 F.3d at 1136.11 Neither Bates nor Pickern support Defendants' assertion that these ADA deterrence-injury plaintiffs must "seek essentially to step into the shoes" of their Riders App beneficiaries to attain Article III standing and are thus contractually barred from their Federal forum selection rights. Compare ECF No. 38 at 3-4.12

In sum, Defendants' assertions — that non-signatory Plaintiffs are equitably estopped from filing an ADA action in this forum because (1) Defendant's Terms of Use are necessarily "embraced" by Plaintiffs' claims under the ADA and/or (2) Plaintiffs must necessarily "stand in the shoes" of individuals who have embraced Defendants' Terms of Use — are equally meritless.13 As referenced supra, whether compliance with the ADA requires Uber, a private rideshare entity, to provide transportation service access to people with mobility disabilities—under either Section 12182 or 12184—is the subject of several recent Federal court actions. It is also a question which may be increasingly informed by expansion and developments in the operations of rideshare companies in the transportation marketplace.

IV. CONCLUSION

Accordingly, the August 23, 2019 Motion to Compel Arbitration filed by Defendants Uber Technologies, Inc.; Rasier, LLC; and Rasier-CA, LLC (collectively "Uber"), ECF No. 24, will be denied. A separate Order will be entered.