SANJAY SOOKUL, on behalf of himself and all others similarly situated, v. FRESH CLEAN THREADS, INC.
1:23-cv-10164-GHW
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
October 16, 2024
GREGORY H. WOODS, District Judge
MEMORANDUM OPINION & ORDER; DOCUMENT ELECTRONICALLY FILED; DOC #:; DATE FILED: 10/16/2024
Title III of the Americans with Disabilities Act,
The principal question before the Court is whether a website that bears no connection to a physical place is nonetheless a “place of public accommodation” within the meaning of Title III. Because it is not, Defendant‘s motion to dismiss is GRANTED.
I. BACKGROUND1
Plaintiff is a “visually impaired and legally blind person who requires screen-reading software to read website content.” FAC ¶ 2. Defendant is an online clothing retailer that sells clothes
On October 20, 2023, Plaintiff allegedly “attempted to purchase a tee shirt” from Defendant‘s website after “his friend told him about the unique[] and high-quality clothing offered” on the site. FAC ¶¶ 10, 38. Plaintiff alleges that he was “unable to do so independently” because the website‘s accessibility software was insufficient. Id. ¶¶ 32, 38. Among other things, the website did not provide a text equivalent for pictures of its wares and did not properly label its “search” and “cart” buttons. Id. ¶¶ 30, 34. Plaintiff allegedly made two more attempts to purchase tee shirts from Defendant‘s website on October 28, 2023 and December 12, 2023, but again was unable to do so. Id. ¶ 38.
Plaintiff alleges that he “intends on . . . completing a purchase on the website when Defendant removes the accessibility barriers from it,” citing the quality of the website‘s tee shirts, its attractive price bundles, and its subscription service. Id. ¶ 39. Plaintiff has also “been recommended [Defendant‘s] brand by several friends.” Id. ¶ 40.
On November 20, 2023, Plaintiff filed this lawsuit on behalf of himself and a putative class of similarly disabled persons. Dkt. No. 1. On April 5, 2024, Plaintiff filed the FAC, which alleges violations of Title III of the ADA,
II. LEGAL STANDARD
A. Standing
A district court must dismiss a claim under Rule 12(b)(1) if a plaintiff fails to allege facts sufficient to establish standing under Article III of the Constitution. See Cortlandt Street Recovery Corp. v. Hellas Telecomm., 790 F.3d 411, 416–17 (2d Cir. 2015). The plaintiff bears the burden of “alleging facts that affirmatively and plausibly suggest that it has standing to sue.” Id. at 417 (quotation and alteration omitted). Each element of standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Where, as here, “standing is challenged on the basis of the pleadings, we accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (quoting United States v. Vazquez, 145 F.3d 74, 81 (2d Cir. 1998)) (cleaned up).
Constitutional standing has three “irreducible” elements:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61 (internal citations and quotations omitted). Plaintiffs seeking injunctive relief must also demonstrate that the identified injury-in-fact presents a “real and immediate threat of future injury.” Shain v. Ellison, 356 F.3d 211, 215 (2d Cir. 2004). “A plaintiff pursuing injunctive
B. Failure to State a Claim
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
“To survive a 12(b) motion, a plaintiff must allege facts that, accepted as true, make out the elements of a claim.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 308 (S.D.N.Y. 2001). Failure to adequately allege “an essential element” of a claim is grounds for dismissal under Rule 12(b)(6). Schneider v. Pearson Educ., Inc., No. 12 CIV. 6392 JPO, 2013 WL 1386968, at *5 n.6 (S.D.N.Y. Apr. 5, 2013) (internal quotation marks and citations omitted). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Determining whether a complaint states a plausible claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Plaintiff alleges violations of the ADA, the NYSHRL, the NYSCRL, and the NYCHRL. The Court first addresses whether Plaintiff has standing to bring these claims, then addresses whether Plaintiff has adequately pleaded them.
III. DISCUSSION
A. Standing
a. Standing under the ADA
Plaintiff has met his burden of demonstrating standing at this stage. “In the ADA context, a plaintiff seeking injunctive relief has suffered an injury in fact when: ‘(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff‘s visits and the proximity of defendants’ [businesses] to plaintiff‘s home, that plaintiff intended to return to the subject location.’” Calcano, 36 F.4th at 74 (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187–88 (2d Cir. 2013)) (alteration in original). “To satisfy standing in ADA website cases specifically, courts in this district have required the plaintiff to allege certain facts in detail, including when they attempted to access to the website, what they were attempting to do on the website, the specific barriers that prevented them from gaining access, and how they intend to utilize the website in the future.” Angeles v. Grace Prod., Inc., No. 20-CV-10167 (AJN), 2021 WL 4340427, at *2 (S.D.N.Y. Sept. 23, 2021) (collecting cases).
Prolific ADA plaintiffs are not subject to a heightened standing inquiry merely by virtue of “filing duplicative lawsuits against multiple defendants.” Delacruz v. Ruby Tuesday, Inc., No. 19-CV-10319 (KMW), 2020 WL 5440576, at *3 (S.D.N.Y. Sept. 8, 2020) (quoting Mendez v. Apple Inc., No. 18-cv-7550, 2019 WL 2611168, at *4 (S.D.N.Y. Mar. 28, 2019)). Still, it is the plaintiff who “bears
Following Calcano, some courts in this district have required even more detail in complaints submitted by prolific ADA website plaintiffs. See, e.g., Loadholt v. Dungarees, Inc., No. 22-CV-4699 (VEC), 2023 WL 2024792, at *2 (S.D.N.Y. Feb. 15, 2023) (“Courts in this circuit have recognized that the Second Circuit‘s recent Calcano decision raised the bar appreciably for adequately pleading standing . . . in ADA cases.” (internal quotation marks and citations omitted)); Hennessy by & through Hennessy v. Poetica Coffee Inc., 2022 WL 4095557, at *4 (E.D.N.Y. Sept. 7, 2022) (same) (collecting cases). For example, in addition to the standard elements of standing, prolific plaintiffs have been required to allege which of the defendant‘s goods they were interested in and why, as well as why they intend to return to the defendant‘s website once its accessibility barriers are removed. See, e.g., Loadholt, 2023 WL 2024792, at *3 & n.7 (noting that such detailed pleading would not apply “in every ADA case”); Tavarez-Vargas v. Annie‘s Publ‘g, LLC, No. 21 CIV. 9862 (AT), 2023 WL 2499966, at *3 (S.D.N.Y. Mar. 14, 2023); see also Calcano, 36 F.4th at 76–77 (noting the complaints provided no
As Defendant points out, Plaintiff is a prolific ADA litigant. Mem. at 4. The Court has found at least 78 recent cases in this district where he is the plaintiff in an ADA suit, often using complaints with very similar language to this one.2 Plaintiff is far from the only such litigant in the Southern District of New York. But while “[f]iling serial, formulaic complaints may, in practice, sometimes mean the final product does not contain sufficient non-conclusory allegations to survive a motion to dismiss . . . that fact does not entitle Plaintiff to a weaker presumption that the non-conclusory allegations in the FAC are true.” Guerrero v. Ogawa USA Inc., No. 22 CIV. 2583 (LGS), 2023 WL 4187561, at *3 (S.D.N.Y. June 26, 2023).3 Despite Defendant‘s arguments, in this Court‘s view, Calcano and its progeny do not hold otherwise. Those cases are concerned with uncareful ADA plaintiffs who fail, in their haste to file more lawsuits, to submit a complaint with allegations that are coherent and detailed enough to “nudge their claims ‘across the line from conceivable to plausible.’” Calcano, 36 F.4th at 76 (quoting Iqbal, 556 U.S. at 680).4
Multiple courts have declined to dismiss actions for lack of standing on nearly identical allegations, including after the Second Circuit issued Calcano. See, e.g., Loadholt, 2023 WL 2368972, at *2-3 (finding plaintiff adequately pleaded standing by alleging that he made multiple visits to a website to buy a tee shirt, that he encountered specific accessibility barriers that prevented him from making a purchase, and that he intended to revisit the website in the future); Davis v. Wild Friends Foods, Inc., No. 22-CV-04244 (LJL), 2023 WL 4364465, at *6–7 (S.D.N.Y. July 5, 2023) (similar, where plaintiff attempted to buy food products from defendant‘s website); Donet v. Isamax Snacks, Inc., No. 123CV01286PAESDA, 2023 WL 6065626, at *5 (S.D.N.Y. Aug. 14, 2023), report and recommendation adopted, No. 23CIV1286PAESDA, 2023 WL 6066167 (S.D.N.Y. Sept. 18, 2023) (similar). Accordingly, Defendant‘s motion to dismiss Plaintiff‘s ADA claim for lack of standing is denied.
b. Standing under the NYSHRL, NYSCRL, and NYCHRL
“Plaintiff‘s New York State and City claims are governed by the same standing requirements as the ADA.” Mendez v. Apple Inc., No. 18 CIV. 7550 (LAP), 2019 WL 2611168, at *4 (S.D.N.Y. Mar. 28, 2019) (collecting cases). Because Plaintiff has standing to bring suit under the ADA, he also has standing under the NYSHRL, NYSCRL, and NYCHRL.
For these reasons, the Court finds that Plaintiff has pleaded sufficient facts to establish standing for all of its claims. Defendant‘s motion to dismiss under Rule 12(b)(1) is therefore denied.
B. Failure to State a Claim under the ADA
Plaintiff has failed to state a claim under Title III of the ADA, because Defendant‘s standalone website is not a “place of public accommodation” subject to suit under Title III. Title III
Plaintiff‘s disability and unequal access to Defendant‘s website are not disputed here. See Mem. at 12. The question, therefore, is whether Defendant‘s standalone website constitutes a “place of accommodation” within the meaning of Title III. Id. The plain text of the statute makes clear that it is not.
Title III defines places of public accommodation in
(7) Public accommodation. The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance
office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
“When interpreting a statute, we begin with the text. We must give effect to the text‘s plain meaning.” Jingrong v. Chinese Anti-Cult World All. Inc., 16 F.4th 47, 57 (2d Cir. 2021). “[A]bsent ambiguity,” interpretation of the statute “will generally end there.” Bustamante v. Napolitano, 582 F.3d 403, 406 (2d Cir. 2009) (quoting Puello v. BCIS, 511 F.3d 324, 327 (2d Cir. 2007)).
a. Relevant case law
Courts are divided as to whether standalone websites are places of public accommodation under Title III. The majority of circuits to address the issue—the Third, Sixth, Ninth, and Eleventh—have concluded that they are not, because a place of public accommodation is a physical establishment. See Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998) (“[W]e do not find the term ‘public accommodation’ or the terms in
Conversely, a minority of circuit courts of appeal—the First and Seventh—have read Title III as extending to remote businesses, including websites. See Carparts Distribution Center, Inc. v. Automotive Wholesaler‘s Association of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (“The plain meaning of the terms do not require ‘public accommodations’ to have physical structures for
The Second Circuit has not addressed whether standalone websites are places of public accommodation. Lacking on-point, binding precedent, district courts in this Circuit have looked to Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999). In that case, the Second Circuit held that an insurance office could be liable under Title III for refusing to sell a joint life-insurance policy to the plaintiffs on the basis of their mental disabilities. Id. at 29. But in Pallozzi there was no dispute that the insurance office was a place of public accommodation, as “Title III specifies an ‘insurance office’ as a ‘public accommodation.’” Id. at 31 (quoting
Those cases overread Pallozzi. Pallozzi is a case about the “‘goods’ and ‘services’ provided by” a place of public accommodation under Title III. 198 F.3d at 31. It is not a case about the antecedent question of whether a place of accommodation can be a business without physical premises. See id. at 33 (“[M]any of the private entities that Title III defines as ‘public accommodations’ . . . sell goods and services that are ordinarily used outside the premises.” (emphasis added)). The Second Circuit confirmed this in Leonard F. v. Israel Disc. Bank of New York, where it observed that Pallozzi left open the “question . . . whether Title III of the ADA has any application” where an insurance policy “was not purchased by [the plaintiff] at an insurance office”—i.e., at a place of public accommodation. 199 F.3d 99, 107 n.8 (2d Cir. 1999) (noting that a plaintiff who received disability benefits from her employer may not have the “nexus to [defendant‘s] ‘insurance office‘” required to sustain a claim under Title III (quoting Ford, 154 F.3d at 612–613)). Several courts in this Circuit have adopted this reading of Pallozzi, and held that standalone websites are not
“Because the issue is undecided in this Circuit, the Court turns to the statute.” Tavarez v. Moo Organic Chocolates, LLC, 623 F. Supp. 3d 365, 368 (S.D.N.Y. 2022). The Court finds that places of public accommodation do not extend beyond physical locations to standalone websites, because the plain text of
b. “Place” of Public Accommodation
To start, a website is not a “place of public accommodation” because a website is not a “place.” Only “places of public accommodation” are subject to Title III. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 677 (2001);
Defendant‘s business is run exclusively through its website. FAC ¶¶ 4–5. It has no physical premises open to the public. FAC ¶ 25; Opp. at 20. Defendant‘s website is therefore not a “place”—of public accommodation or otherwise—subject to Title III. See Stoutenborough v. Nat‘l Football League, Inc., 59 F.3d 580, 583 (6th Cir. 1995) (“[T]he plaintiffs’ argument that the prohibitions of Title III are not solely limited to ‘places’ of public accommodation contravenes the plain language of the statute.”).
c. Place of “Public Accommodation”
Moreover, even if websites were “places,” they are not “public accommodations” under Title III. Only “place[s] of public accommodation” are subject to Title III.
“The ADA‘s definition of ‘public accommodation’ is consistent with this history.” Id. at 176.
i. Section 12181(7) Does Not Apply to Remote Businesses
Standalone websites are not included anywhere within the list of “public accommodations” provided by Congress.
The term “travel service” is a thin reed on which to rest an argument that websites fall within
Many district courts in this Circuit have made this same argument. See, e.g., Tavarez, 623 F. Supp. 3d at 369 (“Although websites are not specifically mentioned in the statute, the law‘s explicit purpose and the inclusion of providers that do not require physical entry into a location to access their goods and services indicate that websites are within the broad reach Congress intended Title III to have.”)); Del-Orden v. Bonobos, Inc., No. 17 CIV. 2744 (PAE), 2017 WL 6547902, at *10 (S.D.N.Y. Dec. 20, 2017) (similar, arguing that “[t]his construction, although not dictated by the ADA‘s text, is consistent with it; and it is compellingly supported by the ADA‘s purposes, legislative history, and context”). These cases generally rely on the First Circuit‘s opinion Carparts, which reasoned that, “[b]y including ‘travel service’ among the list of services considered ‘public accommodations,’ Congress clearly contemplated that ‘service establishments’ include providers of
The Court disagrees for several reasons. First, the term “travel service,” as defined in Title III, is best understood to refer to a physical location, like all of the phrases that surround it. The term “travel service” must be interpreted in the context of its “surrounding words.” Yates v. United States, 574 U.S. 528, 536 (2015); see also Homaidan v. Sallie Mae, Inc., 3 F.4th 595, 604 (2d Cir. 2021) (reading a disputed term “such that its scope aligns with that of its listed companions.”). The Supreme Court recently had the occasion to remind courts of the importance of this principle in Fischer v. United States, 603 U.S. ----, 144 S. Ct. 2176 (2024), where it held that the Sarbanes-Oxley Act did not apply to a defendant‘s conduct in breaching the Capitol on January 6, 2021. At issue in Fischer were two adjacent provisions in the Act:
Two interpretive canons guided the Fischer Court‘s conclusion, both of which inform this Court‘s reading of
The same principles compel a reading of “travel service” in
As confirmation, Subparagraph (F)‘s residual clause refers to each member of that subparagraph—including “travel service”—as an “establishment.”
For these reasons, the Court does not read
ii. Section 12181(7) Does Not Apply to Defendant‘s Website
To be clear, even if the term “travel service” could encompass “service[s] not limited to a physical place,” Romero, 580 F. Supp. 3d at 20, Defendant‘s website still falls nowhere within the list in
Moreover, if Defendant‘s retail website did fall within
For these reasons, there is simply no place for Defendant‘s website anywhere in the text of
d. The ADA‘s Stated Purpose Does Not Sweep Websites into Section 12181(7)
None of Plaintiff‘s other policy arguments justify reading websites into
The ADA‘s broadly stated purpose is not a basis to depart from
As discussed, the limitations in
Nor does the plain meaning of Title III produce “absurd results.” Opp. at 18. Plaintiff argues that excluding websites from Title III “would produce absurd results” because it “ignore[s] the reality” that “disabled persons . . . want and need access to the growing number of online-only providers of goods and services.” Id. (quoting Chalas, 673 F. Supp. at 344); see also Nat‘l Fed’n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 572 (D. Vt. 2015) (citing Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 386, 372 (2d Cir. 2006) (noting statutes “should be interpreted in a way that avoids absurd results”)).9 Several courts in this Circuit, again relying on the First Circuit‘s opinion in Carparts, have come to similar conclusions. E.g., Scribd, 97 F. Supp. 3d at 572; Guerrero, 2023 WL 3847402, at *3–*4 (“[I]t would be an anomalous result for disabled people to be barred from accessing the growing online-only providers of goods and services.” (quotation omitted)). But “a statute is not ‘absurd’ merely because it produces results that a court or litigant finds anomalous or perhaps unwise.” Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 705 (2d Cir. 2019). “To the contrary, courts should look beyond a statute‘s text under the canon against absurdity only where the result of applying the plain language would be, in a genuine sense, absurd, i.e., where it is quite impossible that Congress could have intended the result and where the alleged absurdity is so clear
For these reasons, the Court finds that the “general purposes of the [ADA] . . . cannot justify a departure from the plain text of the statute.” Id. at 705; see also E.P.A. v. EME Homer City Generation, L.P., 572 U.S. 489, 508–09 (2014) (“[A] reviewing court‘s task is to apply the text of the statute, not to improve upon it.” (cleaned up)). Under the ADA‘s plain text, only physical places are subject to suit under Title III. Defendant is an online-only retailer that has no physical business open to the public. Accordingly, Defendant‘s motion to dismiss plaintiff‘s ADA claim under Rule 12(b)(6) is granted.
IV. REMAINING CLAIMS
Plaintiff‘s claim for declaratory relief under Title III is dismissed for the same reasons as its direct claim under Title III. See EFG Bank AG, Cayman Branch v. AXA Equitable Life Ins. Co., 309 F. Supp. 3d 89, 100 (S.D.N.Y. 2018) (dismissing claim for declaratory relief where direct claim “will necessarily settle the issues for which the declaratory judgment is sought” (internal quotation marks and citation omitted)).
Having dismissed Plaintiff‘s federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiff‘s state-law claims under the NYSHRL, NYSCRL, and NYCHRL.
Accordingly, Plaintiff‘s declaratory-judgment and state-law claims are dismissed.
V. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has standing to bring his claim against Defendant under Title III of the ADA. Defendant‘s Rule 12(b)(1) motion to dismiss is therefore DENIED.
On the other hand, the Court finds that Plaintiff has failed to state a claim under Title III of the ADA because Defendant‘s standalone website is not a “place of public accommodation” subject
Plaintiff‘s claim under the ADA is dismissed with prejudice. Plaintiff‘s claims under the NYSHRL, NYSCRL, and NYCHRL are dismissed without prejudice.
The Clerk of Court is directed to enter judgment for Defendant, to terminate all pending motions, and to close this case.
SO ORDERED.
Dated: October 16, 2024
New York, New York
GREGORY H. WOODS
United States District Judge