Orrick California Pleading Template, Rev. 11/1/97, the Legal Macpac
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LINDA1 D. KILB (State Bar No. 136101) ARLENE B. MAYERSON (State Bar No. 79310) DISABILITY2 RIGHTS EDUCATION AND DEFENSE FUND, INC. (DREDF) 22123 Sixth Street Berkeley, CA 94710 Telephone:4 (510) 644-2555 Facsimile: (510) 841-8645 5 WILLIAM F. ALDERMAN (State Bar No. 47381) ADRIANA6 M. DUFFY (State Bar No. 195451) ORRICK, HERRINGTON & SUTCLIFFE LLP Old7 Federal Reserve Bank Building 400 Sansome Street San8 Francisco, CA 94111-3143 Telephone: (415) 392-1122 Facsimile:9 (415) 773-5759
Attorneys10 for Plaintiffs BETTY L. INGRAM, et al. 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 15 BETTY L. INGRAM, on behalf of herself CASE NO. C 98-3058 CRB and16 all others similarly situated, CIVIL RIGHTS 17 Plaintiffs, THIRD AMENDED CLASS ACTION 18 v. COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES SERENDIPITY19 LAND YACHTS; COACH USA; ANTELOPE VALLEY JURY TRIAL DEMANDED BUS,20 INC.; and NATIONAL RAILROAD PASSENGER CORPORATION (“AMTRAK”),21 22 Defendants. 23 24 25 26 27 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 (No. C 98-3058 CRB) 1 I. 2 INTRODUCTION
3 1. This civil rights class action Complaint is filed by individuals with mobility disabilities4 who use common wheelchairs, and who have been, are being or will be denied nondiscriminatory,5 safe access to bus services operated by defendants SERENDIPITY LAND YACHTS6 (“SERENDIPITY”), COACH USA (“COACH”), and ANTELOPE VALLEY BUS, INC. (“ANTELOPE”),7 and the NATIONAL RAILROAD PASSENGER CORPORATION (“AMTRAK”), as8 a result of the acts and omissions alleged herein. Plaintiff BETTY L. INGRAM files this Complaint9 on behalf of herself and all other passengers with mobility disabilities who are past, present,10 future or deterred passengers on SERENDIPITY, COACH, ANTELOPE buses, and buses operated11 by or under contract with AMTRAK. 12 2. Defendants have been and are in violation of federal and state disability civil rights laws,13 in that they have failed to comply with federal nondiscrimination statutes including the Americans14 with Disabilities Act (“ADA”) of 1990, 42 U.S.C. §§ 12101, et seq., and Section 504 of the15 Rehabilitation Act of 1973, 29 U.S.C. § 794(a), as well as numerous provisions of California civil rights16 statutes and other legislation affording protection against discrimination, unfair and deceptive business17 practices and false advertising to persons with disabilities. 18 3. Defendants have discriminated and continue to discriminate against plaintiffs in many19 ways, including but not limited to (a) failing to ensure that individuals with mobility disabilities who20 use common wheelchairs have nondiscriminatory, safe access to bus services; and (b) failing to ensure21 that personnel are trained to proficiency regarding the safe operation of vehicles and equipment22 and the provision of respectful and courteous service to passengers with disabilities.
23 II. 24 JURISDICTION AND VENUE 25 4. Jurisdiction in this Court over plaintiffs’ federal claims is founded upon 28 U.S.C. §26 1331 (federal question jurisdiction), and 28 U.S.C. § 1343(a)(4) (civil rights actions), in that this case27 arises under federal statutes including 42 U.S.C. §§ 12101 et seq., and 29 U.S.C. § 794(a). 28 5. Jurisdiction in this Court over plaintiffs’ claims arising under the laws of the State
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 (No. C 98-3058 CRB) 1 of California is appropriate under 28 U.S.C. § 1367(a), in that all claims herein arising under both 2 federal and state law are so related that they form part of the same case or controversy. 3 6. Venue is proper in this Court under 28 U.S.C. § 1391(b), plaintiffs’ claims having 4 arisen within the Northern District of California, wherein defendants do business and plaintiff 5 BETTY L. INGRAM resides. This Court has personal jurisdiction over each of the defendants. 6 SERENDIPITY and ANTELOPE are each headquartered in California. COACH is headquartered in 7 Texas but does business and has substantial contacts in California, including referring to ANTELOPE 8 as its “division” (e.g., answering the telephone at ANTELOPE’s offices as “Coach USA, Antelope 9 division”); providing in its agreement for the acquisition of ANTELOPE that California law shall 10 apply, that the sole venue for any action shall be Los Angeles, California, and that COACH consents 11 to the personal jurisdiction of any court in Los Angeles; placing a listing for “Coach USA” in the San 12 Francisco telephone directory, showing a San Francisco address and telephone number; repeatedly 13 bringing and defending litigation in California; advertising on its website that it provides a wide 14 variety of bus services in California; placing large “COACH USA” logos on buses operating in 15 California; claiming on its website that the operations, buses, drivers and other employees of its 16 subsidiaries in California are its own; providing financing, insurance, vendor contracting, legal 17 services, equipment sharing, employee benefits, safety and maintenance programs and administrative 18 services to its subsidiaries in California, including ANTELOPE; providing a curriculum for the 19 training of bus drivers in California; using the assets of its California subsidiaries, including 20 ANTELOPE, to secure its $300 million revolving credit facility and its $150 million in senior 21 subordinated notes; and funding the operations of its California subsidiaries by regular advances, 22 including almost $29 million advanced to ANTELOPE alone during 1998, of which some $20 23 million was repaid. Amtrak is headquartered in Washington, D.C., but does business and has 24 substantial contacts in California, including operating Amtrak Thruway buses and operating buses 25 under contract with other entities providing public transportation services. 26 27 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -2- (No. C 98-3058 CRB) 1 III. 2 PARTIES 3 7. Plaintiff BETTY L. INGRAM is a resident of Alameda County, California. Mrs. INGRAM4 has progressive osteoarthritis, a physical impairment that substantially limits her in the major5 life activity of walking. This impairment is both permanent and degenerative. It has, and will continue6 to have, a severe impact on Mrs. Ingram’s entire muscular and skeletal systems. Among other7 things, it significantly limits her ability to ambulate in terms of speed, endurance and comfort in comparison8 to most people. Consequently, Mrs. INGRAM is an individual with a disability as defined9 in all federal and state statutes under which her claims arise, including the Americans with
Disabilities10 Act (ADA) of 1990, 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act of 1973,11 29 U.S.C. § 794(a); California Civil Code §§ 51, et seq.; California Civil Code §§ 54, 54.1 and 54.212 et seq.; California Civil Code §§ 1761 and 3345; and California Business & Professions Code §13 17206.1. 14 8. Due to her disability, Mrs. INGRAM uses a Pace Saver Plus III Premier (1996) three-wheeled15 scooter for mobility. This mobility device (or “chair”), which is manufactured by Leisure16 Lift, has dimensions of 25&1/2 inches by 45&1/2 inches, and weighs less then 600 pounds when17 occupied by Mrs. INGRAM. Consequently, Mrs. INGRAM’s mobility device is a “common wheelchair”18 as defined by the Architectural and Transportation Barriers Compliance Board (“ATBCB”19 or “Access Board”), which has specified that a “common wheelchair” for purposes of the ADA20 includes any mobility device, including three-wheeled scooters and other so-called non- traditional21 mobility devices, that fits on wheelchair lifts with dimensions 30 inches by 48 inches, and weighs22 no more than 600 pounds when occupied. Appendix D to 49 C.F.R Part 37, Comment to Section23 37.3, 56 Fed. Reg. 45734 (September 6, 1991), and Comment to Section 37.165, 56 Fed. Reg.24 45754 (September 6, 1991). 25 9. Defendant SERENDIPITY is a private entity that provides specified transportation services,26 is primarily engaged in the business of transporting people, and whose operations affect commerce.27 Defendant SERENDIPITY provides public transportation bus services in California, including28 bus services for which tickets may be obtained through the AMTRAK Thruway Bus
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -3- (No. C 98-3058 CRB) 1 reservations systems. Defendant SERENDIPITY is responsible for the violations of federal and state 2 disability civil rights laws and other legal obligations alleged herein. 3 10. Defendant COACH is a private entity that provides specified transportation 4 services, is primarily engaged in the business of transporting people, and whose operations affect 5 commerce. Defendant COACH provides public transportation bus services throughout California 6 and other states, including services through what it calls its COACH USA, ANTELOPE DIVISION, 7 which is responsible for the operation of ANTELOPE buses. This includes bus services for which 8 tickets may be obtained through the AMTRAK Thruway Bus reservations system. Defendant 9 COACH is responsible for the violations of federal and state disability civil rights laws and other 10 legal obligations alleged herein. 11 11. Defendant ANTELOPE is a California corporation that is a wholly-owned 12 subsidiary, or division, of defendant COACH. Defendant ANTELOPE is a private entity that 13 provides specified transportation services, is primarily engaged in the business of transporting people, 14 and whose operations affect commerce. Defendant ANTELOPE provides public transportation bus 15 services in California, including bus services for which tickets may be obtained through the 16 AMTRAK Thruway Bus reservations system. Defendant ANTELOPE is responsible for the 17 violations of federal and state disability civil rights laws and other legal obligations alleged herein. 18 Because COACH holds ANTELOPE out to the public as its division and because ANTELOPE uses 19 buses, marketing materials, financing and other services provided by COACH, directly or through 20 subsidiaries, COACH is responsible for the conduct of ANTELOPE alleged herein. 21 12. Defendant AMTRAK is a corporation incorporated under the laws of the District 22 of Columbia that funds, operates, owns and/or controls the operations of the AMTRAK intercity rail 23 passenger transportation system, which includes the provision of AMTRAK Thruway Bus services 24 operated by or under contract with AMTRAK. Defendant AMTRAK is responsible for the violations 25 of federal and state disability civil rights laws and other legal obligations alleged herein. 26 27 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -4- (No. C 98-3058 CRB) 1 IV. 2 CLASS ALLEGATIONS 3 13. Plaintiff BETTY L. INGRAM brings this action on her own behalf and on behalf of4 all persons similarly situated. 5 14. The class that Mrs. INGRAM seeks to represent is composed of all individuals with6 mobility disabilities who use common wheelchairs, and who have been, are being or will be denied7 the right to nondiscriminatory, safe access to SERENDIPITY, COACH and ANTELOPE buses,8 and buses operated by or under contract with AMTRAK, due to the legal violations alleged herein.9 This includes those individuals who have used, are using, or will use SERENDIPITY,
COACH10 or ANTELOPE buses, and buses operated by or under contract with AMTRAK, as well as those11 who have been, are being or will be deterred from such use as a result of the legal violations alleged12 herein. 13 15. The persons in the class are so numerous that joinder of all such persons is impracticable14 and the disposition of their claims in a class action is a benefit to the parties and to the Court.15 16 16. There is a well-defined community of interest in the questions of fact and law involved17 affecting the class members to be represented, in that they all have been, are being or will be denied18 their civil rights to nondiscriminatory, safe access to public transportation bus services provided19 by defendants due to violations of both federal and California law. 20 17. Common questions of fact and law predominate as to claims brought on behalf of the21 class. 22 18. The claims of plaintiff BETTY L. INGRAM are typical of those of the class, and Mrs.23 INGRAM and her attorneys will fairly and adequately represent the interests of the class. 24 19. For purposes of this Complaint, “plaintiff BETTY L. INGRAM” or “Mrs.25 INGRAM” shall refer to the named plaintiff only. References to “plaintiffs” or “plaintiff class”26 shall be deemed to include the named plaintiff and each member of the class. 27 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -5- (No. C 98-3058 CRB) 1 V. 2 FACTUAL ALLEGATIONS 3 20. In August 1997, plaintiff BETTY L. INGRAM visited her elderly mother in 4 Glendale, California. Mrs. INGRAM traveled from her home in the San Francisco Bay Area to 5 southern California on August 8, 1997 and back again on August 11, 1997. Specifically, Mrs. 6 INGRAM made a round-trip between Fremont, California and Glendale, California, traveling on 7 tickets that she had booked through the AMTRAK 1-800-USA-RAIL reservations system, which 8 tickets passengers for both AMTRAK rail and AMTRAK Thruway Bus travel. 9 21. Because AMTRAK provides rail passenger services only on the portion of 10 Mrs. INGRAM’s August 1997 travel route between Bakersfield and Stockton, Mrs. INGRAM was 11 ticketed through AMTRAK’s Thruway Bus reservations system for bus travel on the remaining 12 portions of her route. Specifically, Mrs. INGRAM traveled by bus on the northern portion of her 13 route from Fremont to Stockton and back again, and on the southern portion of her route from 14 Bakersfield to Glendale and back again. 15 22. During each of her contacts with AMTRAK’s 1-800-USA-RAIL reservations 16 system relating to this trip, Mrs. INGRAM notified AMTRAK that she uses a scooter type of 17 common wheelchair and has access needs. This included contact when she originally booked her 18 August 1997 travel to include passage on AMTRAK Thruway Buses, and contact on August 9, 1997 19 to again confirm her need for accessible features on her August 11, 1997 return trip. 20 23. Through AMTRAK’s Thruway Bus reservations system, Mrs. INGRAM was 21 ticketed for August 8, 1997 out-bound travel on a defendant SERENDIPITY bus from Fremont to 22 Stockton. 23 24. On August 8, 1997, Mrs. INGRAM boarded a SERENDIPITY bus in Fremont as 24 scheduled, using an operative wheelchair lift. 25 25. Upon boarding the SERENDIPITY bus on August 8, 1997, and after discussion 26 with the driver, Mrs. INGRAM found that the bus entirely lacked wheelchair securement devices (tie 27 downs and belts), which are necessary to ensure her safe travel in a wheelchair seating area. 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -6- (No. C 98-3058 CRB) 1 Consequently, Defendant SERENDIPITY made no effort whatsoever to secure Mrs. INGRAM’s 2 chair. 3 26. As a result of the lack of securement devices, on August 8, 1997, Mrs. INGRAM’s 4 chair was thrown on to its side when the SERENDIPITY bus veered to the right on an off-ramp of 5 Interstate 680 in Pleasanton, California. Mrs. INGRAM fell out of her chair, landing partly on the 6 floor and partly on a young child who was seated across the aisle. She sustained painful injuries to 7 her neck, side and thigh. This incident left Mrs. INGRAM fearful of remaining in her chair, even 8 though her prior practice had been to remain in her chair rather than transfer to alternative seating. 9 Consequently, she transferred to a fixed bus seat for the rest of the August 8, 1997 SERENDIPITY 10 bus trip from Fremont to Stockton, leaving her chair still unsecured in the wheelchair seating space. 11 Even after she did transfer, her unsecured, empty scooter created a safety hazard for all bus 12 passengers. 13 27. During her return trip from southern California on August 11, 1997, Mrs. 14 INGRAM again experienced access problems. 15 28. Through AMTRAK’s Thruway Bus reservations system, Mrs. INGRAM was 16 ticketed for August 11, 1997 return-trip travel from Glendale to Bakersfield on a bus owned by 17 COACH or a subsidiary of COACH and operated by ANTELOPE. 18 29. Despite the fact that she had provided notice of her access needs to an AMTRAK 19 Thruway Bus reservations agent when she was originally ticketed and again on August 9, 1997, the 20 driver of the August 11, 1997 return-trip ANTELOPE bus claimed to be unaware that a passenger 21 with a mobility impairment who used a common wheelchair would be boarding. 22 30. While the August 11, 1997 ANTELOPE bus had an operative wheelchair lift, the 23 driver originally deployed the lift too close to a curb and a fence. The driver then treated Mrs. 24 INGRAM in a rude and impatient manner when she requested that the lift be repositioned so that she 25 could access it. Further, after she boarded Mrs. INGRAM observed no wheelchair securement 26 devices. When she asked the driver about this, he again became irritated, and after a brief search 27 informed her that no securement devices were available. Consequently, Mrs. INGRAM made the 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -7- (No. C 98-3058 CRB) 1 Glendale-to-Bakersfield trip by transferring to a fixed bus seat, leaving her chair unsecured in the 2 wheelchair seating space. Due to this absence of securement devices, Mrs. Ingram could only travel 3 safely by transferring to a fixed seat, and was thus unable to travel safely while remaining in her 4 scooter. Moreover, even after she did transfer, her unsecured, empty scooter created a safety hazard 5 for all bus passengers. 6 31. Through AMTRAK’s Thruway Bus reservations system, Mrs. INGRAM was 7 ticketed for August 11, 1997 return-trip travel on a defendant SERENDIPITY bus from Stockton to 8 Fremont. 9 32. This August 11, 1997 SERENDIPITY bus again had an operative wheelchair lift, 10 but, like the first one, lacked wheelchair securement devices. Mrs. INGRAM made the trip home by 11 transferring to a fixed bus seat, again leaving her chair unsecured in the wheelchair seating space. 12 Due to this absence of securement devices, Mrs. Ingram could only travel safely by transferring to a 13 fixed seat, and was thus unable to travel safely while remaining in her scooter. Moreover, even after 14 she did transfer, her unsecured, empty scooter created a safety hazard for all bus passengers. 15 33. Even though Mrs. INGRAM had transferred to a fixed SERENDIPITIY bus seat 16 on August 11, 1997, due to the incident on August 8, 1997 she was very distressed at the idea of 17 traveling again on an Interstate 680 curved ramp. Consequently, although she was ticketed from 18 Stockton all the way to Fremont, she got off the bus in Pleasanton and traveled the rest of the way 19 home on Bay Area Rapid Transit (BART). 20 34. As a result of the August 8, 1997 incident on the SERENDIPITY bus, Mrs. 21 INGRAM sustained neck injuries and significant bruises to her thigh and side. These physical 22 injuries were painful, took approximately two months to resolve, and prevented Mrs. INGRAM from 23 making a pre-planned trip back East to visit her gravely ill uncle in mid-August 1997. As it 24 happened, this deprived her of her last opportunity to be with her uncle prior to his death later that 25 month. 26 35. As result of her above-described travel experiences during August 1997, Mrs. 27 INGRAM has dramatically changed her attitude toward travel. As a result of the distress and injuries 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -8- (No. C 98-3058 CRB) 1 that she experienced she is now fearful of and limits all vehicle travel, and does not leave her house 2 as much as she did prior to August 1997. 3 36. Among other things, Mrs. INGRAM’s new fear of travel, particularly travel by 4 bus, has caused her to decrease the number of visits that she pays to her mother in southern 5 California. This decrease is particularly significant because her mother, who is blind and deaf, has 6 always depended on regular visits from Mrs. INGRAM. 7 37. Traveling by air to southern California is exorbitantly expensive for Mrs. 8 INGRAM. Air travel rates are generally higher than ground travel rates, even when travel is booked 9 in advance. If Mrs. INGRAM has an unexpected emergency need to visit her mother, the cost of air 10 travel becomes even higher, because unlike ground travel rates air travel rates usually increase 11 dramatically when travel is not booked in advance. When she flies, in addition to the cost of airfare, 12 Mrs. INGRAM must also pay for lift-equipped vans to transport her to and from the airport. 13 38. Due to her osteoarthritis, driving herself causes Mrs. INGRAM pain. It is not 14 medically advisable for her to drive, and on the infrequent occasions when she does drive she limits 15 her driving to local, short trips. Consequently, Mrs. INGRAM is unable to travel independently by 16 car to southern California, because she requires another person to drive her. 17 39. Defendants SERENDIPITY and ANTELOPE are providers under contract with 18 AMTRAK to provide AMTRAK Thruway Bus services in northern and southern California, 19 specifically including services that permit travel between Mrs. INGRAM’s home in Union City and 20 her mother’s home in Glendale. 21 40. Travel by public bus and rail, and specifically through use of the AMTRAK 22 Thruway Bus system, is the only cost-effective way for Mrs. INGRAM to travel independently to and 23 from southern California. Because accessible Bay Area Rapid Transit (BART) has now been 24 extended to Pleasanton, Mrs. INGRAM can travel independently from her home by BART to board a 25 northern California SERENDIPITY bus in Pleasanton. When she disembarks from an ANTELOPE 26 bus in Glendale, she is independently able to transfer to accessible local public bus transportation, 27 which she picks up at a stop approximately three blocks away from the ANTELOPE bus stop. She 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -9- (No. C 98-3058 CRB) 1 can then disembark from this accessible local public bus transportation within a quarter mile of her 2 mother’s home. Mrs. Ingram is likely to use defendants’ services again, because travel by AMTRAK 3 Thruway Bus is the only cost-effective way for her to travel independently to southern California, 4 where she needs and wants to go frequently to visit her mother. Moreover, Mrs. Ingram is also likely 5 to experience discriminatory treatment again, because the complete absence of securement devices on 6 defendants’ buses evidences general and ongoing noncompliance with applicable nondiscrimination 7 laws. 8 41. Prior to filing this lawsuit, defendants SERENDIPITY, COACH, ANTELOPE, 9 and AMTRAK were informed of Mrs. INGRAM’s complaints. 10 42. As a result of the above-described experiences of plaintiff BETTY L. INGRAM, 11 plaintiffs herein allege that defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK have 12 not complied with the disability civil rights and access laws of the United States and the State of 13 California, and related legal obligations, and have discriminated and continue to discriminate against 14 individuals with disabilities in the provision of public transportation bus services. This 15 discrimination includes, inter alia, the following on-going, systemic, pattern and practice violations: 16 (a) failing to ensure that individuals with mobility disabilities who use common 17 wheelchairs have nondiscriminatory, safe access to bus services; and 18 (b) failing to ensure that personnel are trained to proficiency regarding the safe 19 operation of vehicles and equipment and the provision of respectful and courteous service to 20 passengers with disabilities. 21 43. Plaintiffs allege that defendants SERENDIPITY, COACH, ANTELOPE, and 22 AMTRAK have engaged in the above-described pattern and practice pursuant to systemic policies 23 and practices, or lack thereof, wherein the civil rights of passengers with mobility disabilities who use 24 common wheelchairs to nondiscriminatory, safe access to buses have been routinely disregarded. 25 This pattern and practice of legal violations has been and is ongoing, including, but not limited to, the 26 time period covering the last twelve months. 27 44. The injuries and damages sustained by plaintiffs include denial of their civil rights 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -10- (No. C 98-3058 CRB) 1 to nondiscriminatory access to bus services; interference with their ability to safely utilize bus 2 services; injury and risk of injury to plaintiffs’ health and safety; and inconvenience, annoyance and 3 distress. These injuries and damages are ongoing due to the continuing pattern and practice described 4 above. 5 45. Plaintiffs hereby request a jury trial on each and every one of their claims in this 6 action. 7 VI. 8 FIRST CLAIM FOR RELIEF 9 (Title III of the Americans with Disabilities Act of 1990) 10 (All Plaintiffs v. Defendants SERENDIPITY, COACH, and ANTELOPE) 11 46. Plaintiffs incorporate by reference herein the allegations in Paragraphs 1 through 12 45 above, inclusive. 13 47. Defendants SERENDIPITY, COACH and ANTELOPE, and each of them, are 14 private entities providing specified transportation services, primarily engaged in the business of 15 transporting people and whose operations affect commerce. Consequently, defendants 16 SERENDIPITY, COACH and ANTELOPE, and each of them, are subject to Title III of the 17 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., and particularly Section 304 18 thereof, 42 U.S.C. § 12184. 19 48. The conduct previously alleged violates Title III of the ADA and the federal 20 regulations promulgated pursuant to Title III, 28 C.F.R. part 36, and 49 C.F.R. parts 27, 37 and 38. 21 49. Title III of the ADA prohibits, inter alia, private entities primarily engaged in the 22 business of transporting people and whose operations affect commerce from discriminating against 23 individuals with disabilities on the basis of disability in the full and equal enjoyment of specified 24 public transportation services. 25 50. Defendants SERENDIPITY, COACH and ANTELOPE, and each of them, have 26 violated Title III of the ADA by, inter alia, failing to operate their services on a nondiscriminatory 27 basis; failing to ensure that individuals with mobility disabilities who use common wheelchairs have 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -11- (No. C 98-3058 CRB) 1 nondiscriminatory, safe access to bus services; and failing to ensure that personnel are trained to 2 proficiency regarding the safe operation of vehicles and equipment and the provision of respectful 3 and courteous service to passengers with disabilities. 4 51. Pursuant to 42 U.S.C. § 12188, and the remedies, procedures, and rights set forth 5 and/or incorporated therein, plaintiffs pray for judgment as set forth below. 6 VII. 7 SECOND CLAIM FOR RELIEF 8 (Title II of the Americans with Disabilities Act of 1990) 9 (All Plaintiffs v. Defendant AMTRAK) 10 52. Plaintiffs incorporate by reference herein the allegations in Paragraphs 1 through 11 45 above, inclusive. 12 53. Defendant NATIONAL RAILROAD PASSENGER CORPORATION 13 (“AMTRAK”) is specifically identified in Section 201(1)(C) of the Americans with Disabilities Act 14 (“ADA”) of 1990, 42 U.S.C. §§ 12131(1)(C), as a public entity for purposes of Title II of the ADA, 15 42 U.S.C. §§ 12131 et seq. 16 54. The conduct previously alleged violates Title II of the ADA and the federal 17 regulations promulgated pursuant to Title II, 28 C.F.R. part 35, and 49 C.F.R. parts 27, 37 and 38. 18 55. Title II of the ADA prohibits, inter alia, public entities from discriminating against 19 individuals with disabilities on the basis of disability by subjecting them to discrimination, excluding 20 them from participation in, or denying or otherwise limiting them in the benefits of the services, 21 programs or activities of the public entity. 22 56. Defendant AMTRAK has violated Title II of the ADA by, inter alia, failing to 23 operate its services, programs and activities, including its AMTRAK Thruway Bus services, on a 24 nondiscriminatory basis; failing to afford individuals with mobility disabilities who use common 25 wheelchairs the structural and program access required as necessary to ensure that AMTRAK 26 services, programs and activities, including AMTRAK Thruway Bus services, are readily accessible 27 to and usable by individuals with disabilities; and to the extent that AMTRAK services, including 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -12- (No. C 98-3058 CRB) 1 AMTRAK Thruway Bus services, are provided through contractual, licensing or other arrangement 2 with other entities providing public transportation services, failing to ensure that such entities comply 3 with disability civil rights and access laws. 4 57. Pursuant to 42 U.S.C. § 12133, and the remedies, procedures, and rights set forth 5 in 29 U.S.C. § 794a incorporated therein, plaintiffs pray for judgment as set forth below. 6 58. In doing the acts and omissions alleged herein, defendant AMTRAK knew or 7 should have known that its conduct was directed to persons with disabilities, thereby entitling 8 plaintiffs to recover treble damages, penalties and/or other such remedies pursuant to California Civil 9 Code § 3345, in addition to remedies provided as detailed in Paragraph 57 above. 10 VIII. 11 THIRD CLAIM FOR RELIEF 12 (Section 504 of the Rehabilitation Act of 1973) 13 (All Plaintiffs v. Defendants COACH and AMTRAK) 14 59. Plaintiffs incorporate by reference herein the allegations in Paragraphs 1 through 15 45 above, inclusive. 16 60. Defendants COACH and AMTRAK receive federal financial assistance and as 17 such are subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), 18 and the federal regulations promulgated thereunder. 19 61. The conduct previously alleged violates Section 504, and the federal regulations 20 promulgated thereunder. 21 62. Section 504 prohibits, inter alia, recipients of federal financial assistance from 22 discriminating against individuals with disabilities on the basis of disability by subjecting them to 23 discrimination, excluding them from participation in, or denying or otherwise limiting them in any 24 benefits, services, programs or activities offered by the recipient. 25 63. Defendant COACH has violated Section 504, inter alia, by failing to operate their 26 services, programs and activities on a nondiscriminatory, safe basis; failing to afford individuals with 27 mobility disabilities who use common wheelchairs the structural and program access required as 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -13- (No. C 98-3058 CRB) 1 necessary to ensure that public bus transportation services are readily accessible to and usable by 2 individuals with disabilities; and failing to ensure that personnel are trained to proficiency regarding 3 the safe operation of vehicles and equipment and the provision of respectful and courteous service to 4 passengers with disabilities. 5 64. To the extent that defendant AMTRAK provides AMTRAK services, including 6 AMTRAK Thruway Bus services, through contractual, licensing or other arrangement with other 7 entities, Defendant AMTRAK has further violated Section 504 by failing to ensure that such entities 8 comply with disability civil rights and access laws. 9 65. Pursuant to the remedies, procedures, and rights set forth in 29 U.S.C. § 794a, 10 plaintiffs pray for judgment as set forth below. 11 66. In doing the acts and omissions alleged herein, defendants COACH and 12 AMTRAK knew or should have known that their conduct was directed to persons with disabilities, 13 thereby entitling plaintiffs to recover treble damages, penalties and/or other such remedies pursuant 14 to California Civil Code § 3345, in addition to remedies provided as detailed in Paragraph 65 above. 15 IX. 16 FOURTH CLAIM FOR RELIEF 17 (California Unruh Civil Rights Act) 18 (All Plaintiffs v. All Defendants) 19 67. Plaintiffs incorporate by reference herein the allegations in Paragraphs 1 through 20 58 above, inclusive. 21 68. Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of 22 them, operate business establishments within the jurisdiction of the State of California, and as such 23 are obligated to comply with the provisions of the California Unruh Civil Rights Act, Civil Code 24 §§ 51 et seq. (“the Unruh Act”). 25 69. The conduct previously alleged violates the Unruh Act. 26 70. The Unruh Act guarantees, inter alia, that persons with disabilities are entitled to 27 full and equal accommodations, advantages, facilities, privileges or services in all business 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -14- (No. C 98-3058 CRB) 1 establishments of every kind whatsoever within the jurisdiction of the State of California. The Unruh 2 Act further provides that a violation of the rights of any individual under the ADA, 42 U.S.C. 3 §§ 12101, et seq., shall also constitute a violation of the Unruh Act. Defendants SERENDIPITY, 4 COACH, ANTELOPE, and AMTRAK, and each of them, have violated the Unruh Act by, inter alia, 5 denying persons with disabilities the full and equal accommodations, advantages, facilities, privileges 6 or services offered by defendants. Defendants SERENDIPITY, COACH, and ANTELOPE have 7 further violated the Unruh Act by violating Title III of the ADA, 42 U.S.C. §§ 12181, et seq., and the 8 regulations promulgated thereunder, as alleged in plaintiffs’ First Claim for Relief above. Defendant 9 AMTRAK has further violated the Unruh Act by violating Title II of the ADA, 42 U.S.C. §§ 12132 10 et seq., and the regulations promulgated thereunder, as alleged in plaintiffs’ Second Claim for Relief 11 above. 12 71. Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of 13 them, have violated the Unruh Act by, inter alia, failing to operate their services on a 14 nondiscriminatory basis; failing to ensure that individuals with mobility disabilities who use common 15 wheelchairs have nondiscriminatory, safe access to bus services; and failing to ensure that personnel 16 are trained to proficiency regarding the safe operation of vehicles and equipment and the provision of 17 respectful and courteous service to passengers with disabilities. 18 72. To the extent that defendant AMTRAK provides AMTRAK services, including 19 AMTRAK Thruway Bus services, through contractual, licensing or other arrangement with other 20 entities, Defendant AMTRAK has further violated the Unruh Act by failing to ensure that such 21 entities comply with disability civil rights and access laws. 22 73. The Unruh Act violations of defendants SERENDIPITY, COACH, ANTELOPE 23 and AMTRAK have been intentional in that defendants, and each of them, have engaged in acts, 24 practices or omissions that have the foreseeable effect of discriminating against bus passengers who 25 use wheelchairs. 26 74. Pursuant to the remedies, procedures, and rights set forth in California Civil Code 27 § 52, plaintiffs pray for judgment as set forth below. 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -15- (No. C 98-3058 CRB) 1 75. In doing the acts and omissions alleged herein, defendants, and each of them, 2 knew or should have known that their conduct was directed to persons with disabilities, thereby 3 entitling plaintiffs to recover treble damages, penalties and/or other such remedies pursuant to 4 California Civil Code § 3345, in addition to remedies provided as detailed in Paragraph 74 above. 5 X. 6 FIFTH CLAIM FOR RELIEF 7 (California Public Accommodations Law) 8 (All Plaintiffs v. All Defendants) 9 76. Plaintiffs incorporate by reference herein the allegations in Paragraphs 1 through 10 58 above, inclusive. 11 77. Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of 12 them, operate modes of transportation made available to the general public within the jurisdiction of 13 the State of California, and as such are obligated to comply with the provisions of Civil Code §§ 54, 14 54.1 and 54.2 et seq. (“the Public Accommodations Law”). 15 78. The conduct previously alleged violates the Public Accommodations Law. 16 79. The Public Accommodations Law guarantees, inter alia, that persons with 17 disabilities are entitled to full and equal access, as other members of the general public, to 18 accommodations, advantages, facilities, and privileges of modes of transportation within the 19 jurisdiction of the State of California. The Public Accommodations Law further provides that, for 20 purposes of the Public Accommodations Law, “full and equal access” in its application to 21 transportation means access that meets the standards of Title II and III of the ADA, 42 U.S.C. 22 §§ 12101, et seq., and the federal regulations adopted pursuant thereto, except that if the laws of the 23 State of California prescribe higher standards, it shall mean access that meets those higher standards. 24 Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of them, have violated 25 the Public Accommodations Law by, inter alia, denying persons with disabilities full and equal 26 access, as other members of the general public, to accommodations, advantages, facilities, and 27 privileges offered by defendants. Defendants SERENDIPITY, COACH, and ANTELOPE have 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -16- (No. C 98-3058 CRB) 1 further violated the Public Accommodation Law by violating Title III of the ADA, 42 U.S.C. 2 §§ 12181, et seq., and the regulations promulgated thereunder, as alleged in plaintiffs’ First Claim for 3 Relief above. Defendant AMTRAK has further violated the Public Accommodations Law by 4 violating Title II of the ADA, 42 U.S.C. §§ 12132 et seq., and the regulations promulgated 5 thereunder, as alleged in plaintiffs’ Second Claim for Relief above. 6 80. Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of 7 them, have violated the Public Accommodations Law by, inter alia, failing to operate their services 8 on a nondiscriminatory basis; failing to ensure that individuals with mobility disabilities who use 9 common wheelchairs have nondiscriminatory, safe access to bus services; and failing to ensure that 10 personnel are trained to proficiency regarding the safe operation of vehicles and equipment and the 11 provision of respectful and courteous service to passengers with disabilities. 12 81. To the extent that defendant AMTRAK provides AMTRAK services, including 13 AMTRAK Thruway Bus services, through contractual, licensing or other arrangement with other 14 entities, Defendant AMTRAK has further violated the Public Accommodations Law by failing to 15 ensure that such entities comply with disability civil rights and access laws. 16 82. Pursuant to the remedies, procedures, and rights set forth in California Civil Code 17 § 54.3, plaintiffs pray for judgment as set forth below. 18 83. In doing the acts and omissions alleged herein, defendants, and each of them, 19 knew or should have known that their conduct was directed to persons with disabilities, thereby 20 entitling plaintiffs to recover treble damages, penalties and/or other such remedies pursuant to 21 California Civil Code § 3345, in addition to remedies provided as detailed in Paragraph 82 above. 22 23 24 25 26 27 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -17- (No. C 98-3058 CRB) 1 XI. 2 SIXTH CLAIM FOR RELIEF
3 (Unfair Business Practices) 4 (All Plaintiffs v. All Defendants) 5 84. Plaintiffs incorporate by reference herein the allegations in Paragraphs 1 through 836 above, inclusive. 7 85. Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of them,8 engage in business practices, offer transportation services for sale, and advertise their transportation9 services within the jurisdiction of the State of California. As such, defendants, and each10 of them, are obligated to comply with the provisions of California statutes prohibiting unfair and deceptive11 business practices, including the Consumer Legal Remedies Act, California Civil Code §§12 1750 et seq., and the Unfair Business Practices Act, California Business & Professions Code §§13 17200 et seq. 14 86. The Consumer Legal Remedies Act prohibits, inter alia, unfair or deceptive acts or practices15 intended to result or which do result in the sale of illegal services to consumers within the jurisdiction16 of the State of California. The Unfair Business Practices Act prohibits, inter alia, unfair or17 unlawful business practices by any person, firm, corporation or association within the jurisdiction of18 the State of California. Plaintiffs provided to defendants SERENDIPITY, COACH, and ANTELOPE19 on July 14, 1998 the notice required by Civil Code Section 1782. Plaintiffs provided to defendant20 AMTRAK on July 17, 1998 the notice required by Civil Code Section 1782. None of the defendants21 has agreed to correct any of the practices described in said notices, and, prior to the filing of22 the original complaint herein, each of the defendants expressly declined to rectify the practices described23 in the July 14, 1998 notice. 24 87. The conduct previously alleged violates California state statutory prohibitions against25 unfair and deceptive business practices, as set out in the Consumer Legal Remedies Act and the26 Unfair Business Practices Act. The conduct of defendants, and each of them, violates these statutes27 in that defendants have represented their services to be available to all members of the 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -18- (No. C 98-3058 CRB) 1 general public, when in fact such services are not accessible to individuals with disabilities by reason 2 of defendants’ failure to comply with their legal obligations under federal and state disability civil 3 rights statutes as alleged herein in plaintiffs’ First, Second, Third and Fourth Claims for Relief above, 4 and by reason of defendants’ failure to comply with California public policy favoring the protection 5 of the civil rights of persons with disabilities. 6 88. Pursuant to the remedies, procedures, and rights set forth in California Civil Code 7 § 1780 (available to enforce the Consumer Legal Remedies Act) and the remedies, procedures, and 8 rights set forth in California Business & Professions Code §§ 17203, 17206, & 17206.1 (available to 9 enforce the Unfair Business Practices Act), plaintiffs pray for judgment as set forth below. 10 89. In doing the acts and omissions alleged herein, defendants, and each of them, 11 knew or should have known that their conduct was directed to persons with disabilities, thereby 12 entitling plaintiffs to recover treble damages, penalties and/or other such remedies pursuant to 13 California Civil Code § 3345, in addition to remedies provided as detailed in Paragraph 88 above. 14 XII. 15 SEVENTH CLAIM FOR RELIEF 16 (Negligent Causation of Personal Injury) 17 (Plaintiff BETTY L. INGRAM v. Defendants SERENDIPITY and AMTRAK) 18 90. Plaintiff BETTY L. INGRAM incorporates by reference herein the allegations in 19 Paragraphs 1 through 89 above, inclusive. 20 91. Defendants SERENDIPITY and AMTRAK owed Mrs. INGRAM a duty to 21 provide nondiscriminatory, safe access to bus services; to ensure that its personnel were trained to 22 proficiency regarding the safe operation of vehicles and equipment; and to comply with federal and 23 state disability rights statutes. 24 92. Defendants SERENDIPITY and AMTRAK negligently violated that duty by 25 failing to provide nondiscriminatory, safe access to bus services; to ensure that its personnel were 26 trained to proficiency regarding the safe operation of vehicles and equipment and the provision of 27 respectful and courteous service to passengers with disabilities; and to comply with federal and state 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -19- (No. C 98-3058 CRB) 1 disability rights statutes. 2 93. Defendants SERENDIPITY and AMTRAK knew or should have known that the 3 failure to provide nondiscriminatory, safe access to bus services; to ensure that its personnel were 4 trained to proficiency regarding the safe operation of vehicles and equipment and the provision of 5 respectful and courteous service to passengers with disabilities; and to comply with federal and state 6 disability rights statutes created unreasonable risk of injury to persons with disabilities. 7 94. Defendants SERENDIPITY and AMTRAK knew or should have known that 8 persons with disabilities would attempt to use its passenger bus services. 9 95. As a direct and proximate result of the violations alleged above, Mrs. INGRAM 10 sustained damages, including painful physical injuries to her neck, side and thigh. These injuries 11 took approximately two months to resolve, and it was necessary for Mrs. INGRAM to receive 12 medical care and treatment and incur expenses relating thereto. 13 96. As a result of these injuries, Mrs. INGRAM is entitled to damages in an amount to 14 be ascertained according to proof at trial. 15 XIII. 16 EIGHTH CLAIM FOR RELIEF 17 (Negligent Infliction of Emotional Distress) 18 (Plaintiff BETTY L. INGRAM v. All Defendants) 19 97. Plaintiff BETTY L. INGRAM incorporates by reference herein the allegations in 20 Paragraphs 1 through 96 above, inclusive. 21 98. Defendants SERENDIPITY, COACH, ANTELOPE, and AMTRAK, and each of 22 them, knew or should have known, with the exercise of reasonable care, that the acts, conduct and 23 omissions described above were in violation of plaintiff BETTY L. INGRAM’s rights, including her 24 rights under California common law and her rights under federal and state disability rights statutes, 25 and that such acts, conduct and omissions would cause Mrs. INGRAM to suffer both emotional and 26 physical distress. 27 99. The negligent failure of defendants, and each of them, to fulfill their obligations 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -20- (No. C 98-3058 CRB) 1 under applicable laws has caused Mrs. INGRAM to suffer physical injuries, and to suffer and 2 continue to suffer, humiliation, anxiety, mental anguish, emotional distress, loss of self-esteem and 3 general damage to personal and social relations. 4 100. As a result of these injuries, Mrs. INGRAM is entitled to damages in an 5 amount to be ascertained according to proof at trial. 6 WHEREFORE, plaintiffs pray for judgment as follows: 7 1. An order certifying that this action be maintained as a class action; 8 2. An order enjoining defendants, and each of them, and their employees, agents, 9 and any and all other persons acting on defendants’ behalf or under defendants’ control from 10 violating the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq.; Section 504 of the 11 Rehabilitation Act of 1973, 29 U.S.C. § 794(a); the Unruh Civil Rights Act, California Civil Code 12 §§ 51 et seq.; the Public Accommodations Law, California Civil Code §§ 54, 54.1 and 54.2 et seq.; 13 the Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq.; the Unfair Business 14 Practices Act, California Business & Professions Code §§ 17200 et seq.; and California Civil Code 15 § 3345; 16 3. An order that defendants, and each of them, institute and implement policies 17 and practices that provide persons with mobility disabilities who use common wheelchairs 18 nondiscriminatory, safe access to public bus transportation services consistent with federal and state 19 law; 20 4. An order awarding plaintiffs actual, compensatory, and statutory damages, for 21 violations of their civil rights and for restitution, and a trebling of these damages pursuant to 22 California Civil Code § 3345; 23 5. An order awarding plaintiff BETTY L. INGRAM actual and compensatory 24 damages in compensation for negligent causation of personal injury and negligent infliction of 25 emotional distress. 26 6. An order assessing civil penalties against defendants, and each of them, 27 pursuant to the Unfair Business Practices Act, California Business & Professions Code §§ 17206 and 28
THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -21- (No. C 98-3058 CRB) 1 17206.1, and a trebling of these penalties pursuant to California Civil Code § 3345; 2 7. An order awarding plaintiffs reasonable attorney’s fees and costs; 3 8. For such other and further relief as the Court deems just and proper. 4 5 Dated: June __, 2000. 6 LINDA D. KILB ARLENE B. MAYERSON 7 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. (DREDF) 8 WILLIAM F. ALDERMAN 9 ADRIANA M. DUFFY ORRICK, HERRINGTON & SUTCLIFFE LLP 10 11 By: 12 Linda D. Kilb Attorneys for Plaintiffs 13 Betty L. Ingram, et al. 14 15 16 17 18 19 20
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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -22- (No. C 98-3058 CRB) 1 DEMAND FOR JURY TRIAL 2 Plaintiffs hereby demand a jury trial on all issues. 3 Dated: June __, 2000. 4 LINDA D. KILB ARLENE B. MAYERSON 5 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, INC. (DREDF) 6 WILLIAM F. ALDERMAN 7 ADRIANA M. DUFFY ORRICK, HERRINGTON & SUTCLIFFE LLP 8 9 By: 10 Linda D. Kilb Attorneys for Plaintiffs 11 Betty L. Ingram, et al. 12 13 14 15 16 17 18 19 20
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THIRD AMENDED CLASS ACTION COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES DOCSSF1:447858.1 -23- (No. C 98-3058 CRB)