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Davis v. Wendy's International, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 12, 2019

NICOLE DAVIS individually and on behalf of all others similarly situated, Plaintiffs,

          Gabriel A. Fuentes Hon. Mag. Judge


          MARVIN E. ASPEN, District Judge

         Plaintiff Nicole Davis, individually and on behalf of a proposed class, alleges that Defendant Wendy's International, LLC (“Wendy's”) violated Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, et seq., by offering late-night hours at its restaurants during which customers may patronize Wendy's only via drive-through windows. Davis argues that she cannot independently access Wendy's products during these hours because she is visually-impaired and unable to operate motor vehicles, and thus unable to use the drive-through. (Compl. (Dkt. No. 1) at 1.) Presently before us is Wendy's motion to dismiss Davis's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6). (Mot. to Dismiss (Dkt. No. 11) at 1.) As set forth below, we grant Wendy's motion to dismiss for failure to state a claim under Rule 12(b)(6) with prejudice and deny Wendy's motion to dismiss for lack of personal jurisdiction and lack of standing under Rules 12(b)(1) and (2).


         Nicole Davis is a citizen and resident of Chicago, Illinois. (Compl. ¶ 9.) Davis is a member of a protected class of visually impaired persons under the ADA. (Compl. ¶ 9.) Due to her vision impairment, she cannot operate a motor vehicle. (Compl. ¶ 9.) She brings this action on behalf of herself and a proposed nationwide class of visually impaired persons. (Compl. ¶ 57.)

         Wendy's is a corporation organized under the laws of the State of Ohio that owns, operates and/or leases the more than 6, 000 Wendy's restaurants in the United States. (Compl. ¶¶ 11, 13.) Restaurants are owned and operated either entirely by Wendy's or in part with franchisees. (Compl. ¶ 14.)

         Consumers can patronize Wendy's restaurants through an interior counter or exterior drive-through. (Compl. ¶ 23.) Patrons in automobiles can access service via a driveway system around the exterior of the restaurant. (Compl. ¶ 26.) The drive-through is often open later than the interior restaurant. (Compl. ¶ 27.)

         Wendy's does not serve pedestrians through the drive-through. (Compl. ¶¶ 30, 31.) People who are visually impaired cannot drive, so they cannot independently access the drive-through. (Compl. ¶ 34.)

         Davis alleges she “periodically desires to obtain food from Wendy's restaurants” during late hours. (Compl. ¶ 36.) In February 2019, Davis walked to the Wendy's restaurant located at 7 East 111th Street, Chicago, Illinois, approximately a sixteen-minute walk from her home. (Compl. ¶ 37.) When she arrived, the restaurant lobby doors were locked. (Compl. ¶ 38.) The restaurant continued to serve customers via the drive-through service, but Davis could not independently access the drive-through due to her inability to drive. (Compl. ¶¶ 39, 40.)

         Davis further alleges she visits the Wendy's at 7 East 111th Street “once every two months and she reasonably expects to visit there again in the future.” (Compl. ¶ 41.) This Wendy's is near her home and other commercial establishments that Davis visits. (Compl. ¶ 42.) This Wendy's is also close to the public bus that Davis uses regularly. (Compl. ¶ 43.) Davis alleges she sometimes avoids the Wendy's during late-night hours because she is aware that she will not be able to independently patronize the restaurant. (Compl. ¶ 46.)


         Once the defendant moves to dismiss the complaint for lack of personal jurisdiction, the plaintiff bears the burden of demonstrating the existence of jurisdiction. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003). “A district court sitting in diversity has personal jurisdiction over a nonresident defendant only if a court of the state in which it sits would have jurisdiction.” Id. at 779; see Fed. R. Civ. P. 4(k)(1)(A).

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is meant to test the sufficiency of the complaint. Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990) (citing Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 586 (7th Cir. 1989)). In evaluating a motion to dismiss, we “construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [the plaintiff's] favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A court may grant a motion to dismiss under Rule 12(b)(6) only if a complaint lacks enough facts “to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949-50 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007)). “A ...

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