Mercedes v. Broadway Play Publishing, Inc.
- Jesse Furman
- 1:23-cv-09519
- U.S. District Court · Southern District of New York
- 4
In Mercedes v. Broadway Play Publishing, Judge Furman granted standing discovery and an evidentiary hearing without deciding whether Mercedes has standing.
The order directly affects Luis Mercedes and Broadway Play Publishing, Inc. by allowing discovery and setting a hearing on whether Mercedes has standing; it does not resolve the underlying website-access claims.
What happened
In Mercedes v. Broadway Play Publishing, Inc., Luis Mercedes, who is visually impaired, alleged that he could not use Broadway Play Publishing’s website to buy a theater script and sued under the Americans with Disabilities Act and state and local law. He said he intended to return to the website if its problems were fixed.
Broadway Play Publishing asked the court to dismiss the case because Mercedes lacked standing—the legal basis for bringing a claim in federal court. It alternatively asked for discovery and a hearing about standing. The company questioned whether Mercedes genuinely intended to return to the website and whether he had previously been injured.
Judge Furman granted the request for standing-related discovery and an in-person evidentiary hearing, but did not decide whether Mercedes has standing or dismiss the case. The court authorized discovery, including a possible deposition and computer examination, and scheduled the hearing for July 17, 2024.
The detailed version
- Mercedes v. Broadway Play Publishing, Inc. · No. 1:23-cv-09519
- Jesse Furman
- May 28, 2024
Background
Luis Mercedes, who is visually impaired, alleged that he was denied equal access to Broadway Play Publishing, Inc.’s website in violation of the Americans with Disabilities Act, as well as state and local law. He alleged that he unsuccessfully tried on two dates in October 2023 to buy the script Hit the Wall for his nephew. Mercedes stated that he intended to use the website again to purchase products and services, including that script, if the website’s problems were remedied.
The opinion states that Mercedes had filed at least fifty similar lawsuits between July 2023 and January 2024. Broadway Play Publishing, Inc. moved under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal for lack of subject-matter jurisdiction, arguing that Mercedes lacked standing both to bring his claims generally and to seek an order requiring changes to the website. In the alternative, the company requested discovery about standing and, if necessary, an evidentiary hearing.
Court’s Analysis
The court expressed serious doubts about whether Mercedes’s stated intent to return to the website was genuine. It identified several reasons for those doubts: Mercedes apparently had visited the website only twice shortly before filing suit; the defendant was a specialized theater-script publisher, and the opinion found no apparent connection between Mercedes, his nephew, and the theater industry; the claimed reason for buying the script appeared questionable; the attempted purchase involved an acting edition generally bought in bulk for a production; the script was available from other, more prominent vendors at a lower price; and the complaint appeared to contain copied language.
The court clarified that the availability of a product on another website, by itself, does not defeat standing under the Americans with Disabilities Act. But it said that the product’s availability elsewhere—particularly if it is easier to obtain or cheaper elsewhere—can be relevant to whether a plaintiff genuinely intends to return to the defendant’s website. The court also stated that, when deciding a Rule 12(b)(1) jurisdictional motion, it may consider evidence outside the pleadings.
Ruling and Case Status
The court granted Broadway Play Publishing, Inc.’s motion to the extent it sought jurisdictional discovery and an evidentiary hearing. The company was allowed to take discovery about standing, including a deposition of Mercedes and, if requested, a forensic examination of his computer. The discovery could address both whether Mercedes intended to return to the website and whether he had suffered a prior injury.
The court ordered the parties to complete discovery by June 28, 2024, and scheduled an in-person evidentiary hearing limited to standing for July 17, 2024. It also ordered a joint pre-hearing submission and set an in-person final pre-hearing conference for July 16, 2024. The opinion did not finally decide standing, the merits of the Americans with Disabilities Act claims, or whether the case would be dismissed. Judge Jesse M. Furman directed the Clerk of Court to terminate ECF No. 8.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.