Case Information
USDC-SDNY DOCUMENT ELECTRONICALLY FILED UNITED STATES DISTRICT COURT DOC#: SOUTHERN DISTRICT OF NEW YORK DATE FILED: 6/29/2020 BRAULIO THORNE, on behalf of himself
and all other persons similarly situated ,
Plaintiff, No. 19-CV-9932 (RA) v. OPINION & ORDER BOSTON MARKET CORPORATION,
Defendant.
RONNIE ABRAMS, United States District Judge:
Plaintiff Braulio Thorne, who is legally blind, brings this action on behalf of himself and all other persons similarly situated against Defendant Boston Market Corporation. He alleges violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. , as well as violations of state and municipal law, on the basis that Boston Market fails to sell accessible gift cards for visually impaired people. Now before the Court is Defendant’s motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, the motion is granted.
BACKGROUND [1]
Plaintiff, who resides in New York, “is a visually-impaired and legally blind person who requires Braille, which is a tactile writing system, to read written material.” Compl. ¶¶ 2, 24. Defendant, which is “one of the largest restaurant chains in the world,” “owns, operates and/or controls Boston Market restaurants across the United States,” including several “located in the Southern District of New York.” Id . ¶¶ 26-27. Plaintiff lives “on the same street and less than a block from Defendant’s restaurant on 271 W. 23rd St[.], New York, NY.” Id. ¶ 25. He alleges that he has previously “been a customer . . . on prior occasions” at Defendant’s restaurants. Id. ¶ 21.
On October 21, 2019, seeking to purchase a gift card from Defendant, “Plaintiff telephoned Defendant’s customer service office” and “inquired if Defendant sold store gift cards containing Braille.” Id. ¶ 16. He spoke with one of Defendant’s employees, who informed him that Defendant does not sell Braille-embossed gift cards. According to Plaintiff, he was “not offer[ed] any alternative auxiliary aids or services . . . with respect to Defendant’s gift cards.” Id. ¶ 17. He also alleges that he was otherwise unable to find “accessible store gift cards” because “they are not offered by the Defendant.” Id. ¶ 18; see also id. ¶ 36 (“Defendant’s gift cards, or their packaging, do not contain Braille or any other auxiliary aid for effective communication[.]”).
Plaintiff asserts that the lack of accessible gift cards means he “cannot independently access the information contained thereon in order [to] use the card like a sighted person.” Id. ¶ 5. For instance, he “cannot ascertain information about the gift card, like the balance, the gift card’s terms and conditions of use, or even be able to distinguish Defendant’s branded gift cards from others in the same manner as non-blind persons.” ¶ 20. As a result, he alleges that he cannot independently use one of Defendant’s gift cards to make a purchase in-store, on the phone with a customer service agent, or through its website. [2] Id . ¶¶ 6-7. Plaintiff asserts that he will purchase at least one gift card from Defendant as soon as accessible ones are offered for sale. See id. ¶ 21. On October 27, 2019, Plaintiff filed this action. He filed an amended complaint – here, the operative complaint – on February 14, 2020. Dkt. 17. Plaintiff “seeks a permanent injunction to cause a change in Defendant’s corporate policies, practices, and procedures so that Defendant’s store gift cards will become and remain accessible to blind and visually-impaired consumers.” Compl . ¶ 10. On February 28, Defendant filed the instant motion to dismiss, Dkt. 19, which Plaintiff opposed on March 19, Dkt. 28. Defendant filed its reply on April 16. Dkt. 31. On March 4, the Court granted a request from the Retail Litigation Center, Inc., Restaurant Law Center, National Retail Federation, Retail Gift Card Association, and National Association of Theatre Owners for leave to file an amici curiae brief. Dkt. 26. On June 5, in light of the ongoing public health crisis, the Court held oral argument by telephone.
LEGAL STANDARD
“At the outset,” the Court “ha[s] an independent obligation to determine whether federal
jurisdiction exists in this case.”
Bayerische Landesbank, N.Y. Branch v. Aladdin Capital Mgmt.
,
At this stage, “the proper procedural route” to challenge standing “is a motion under Rule
12(b)(1).”
All. for Envtl. Renewal, Inc. v. Pyramid Crossgates Co.
,
To survive a motion to dismiss brought pursuant to Rule 12(b)(6), a complaint must plead
“enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly
,
DISCUSSION
Plaintiff brings this action seeking a ruling that Title III of the ADA requires public
accommodations, such as Defendant, to offer Braille-embossed – or otherwise accessible – gift
cards. Within the past year, a flood of filings in this district have raised this question. To date,
only Judges Schofield, Woods, and Aaron have addressed it.
See Dominguez v. Taco Bell Corp.
,
No. 19-CV-10172 (LGS),
I. Standing
Defendant first seeks dismissal of this action pursuant to Rule 12(b)(1). Specifically, it contends that Plaintiff lacks standing because he “fails to plausibly allege that he intends to visit Defendant’s store if store gift cards with Braille are offered.” Def.’s Mot. at 19.
For the Court to adjudicate this matter, Plaintiff must first establish that he has standing
pursuant to Article III of the Constitution.
See Cortlandt St. Recovery Corp. v. Hellas
Telecommc’ns
,
In the ADA context, as is relevant here, an injury in fact is established where (1) the
plaintiff “allege[s] past injury under the ADA”; (2) “it is reasonable to infer from [the] complaint
that this discriminatory treatment will continue”; and (3) “it is also reasonable to infer, based on
the past frequency of [the plaintiff’s] visits and the proximity of [the public accommodation] to
[his] home, that [he] intends to return to [the public accommodation] in the future.”
Camarillo v.
Carrols Corp.
,
Although a close question, Plaintiff has made the requisite showing. First, Plaintiff
plausibly alleges a past injury under the ADA when he tried to purchase a Braille-embossed gift
card from Defendant on October 21, 2019, but was told that Defendant does not sell one.
See
Compl. ¶ 16. Although Plaintiff discovered over the phone – not at one of Defendant’s stores –
that Defendant does not sell Braille-embossed gift cards, that fact is not dispositive here. “In the
context of the ADA, awareness of discriminatory conditions, and the avoidance of a public
accommodation because of that awareness, is injury in fact.”
Access 4 All, Inc. v. Trump Int’l
Hotel & Tower Condo.
,
At oral argument, in addressing whether Plaintiff has standing, Defendant urged that
“there’s no injury here because there’s no violation of the ADA.” Dkt. 37 at Tr. 4:17-18
.
When
pressed on this argument, Defendant explained that it is “relying primarily on the merits because
. . . you eliminate standing as soon as you have no injury, which means you have no violation of
the law.” at Tr. 5:3-5. Whether an injury is plausibly alleged so as to satisfy a jurisdictional
analysis, however, is a distinct inquiry from whether an injury is plausibly alleged as to the
merits of an ADA claim.
See Bond v. United States
,
Indeed, in both
Dominguez v. Banana Republic, LLC
, and
Dominguez v. Taco Bell Corp.
,
Judges Woods and Schofield conducted a similar standing analysis. There too, the plaintiffs
sought to purchase gift cards from the defendants over the phone. Both judges concluded that
the plaintiffs had plausibly alleged a past injury because they had “directly encounter[ed] the
alleged disability-based discrimination.”
Banana Republic, LLC
,
In addition, based on the allegations in Plaintiff’s complaint, “it is reasonable to infer”
that Defendant’s alleged “discriminatory treatment will continue.”
Camarillo
,
Lastly, Plaintiff also alleges sufficient facts to infer an intent to return to Defendant’s
restaurant upon acquiring an accessible gift card. “Intent to return is a highly fact-sensitive
inquiry that incorporates a range of factors,” including “the frequency of the plaintiff’s past
visits,” “the proximity of the defendant’s services, programs, or activities to the plaintiff’s
home,” and “any other factor ‘relevant to the calculation’ including the plaintiff’s ‘occupation or
demonstrated travel habits.’”
Ortiz v. Westchester Med. Ctr. Health Care Corp.
, No. 15-CV-
5432 (NSR),
Plaintiff alleges that (1) he has patronized Defendant’s restaurants in the past,
see
Compl.
¶ 21; (2) lives within a block of one of Defendant’s restaurants,
id.
¶ 25, and (3) “intends to
immediately purchase at least one store gift card from the Defendant as soon as the Defendant
sells store gift cards that are accessible to the blind and utilize it at Defendant’s restaurant,”
id.
¶
21. Although his allegations are not especially detailed, they do plausibly allege an intent to
return under this district’s case law.
See Grella v. Avis Budget Grp., Inc.
, No 14-CV-8273 (CM),
In
Small v. General Nutrition Companies
, for instance, the court held that the individual
plaintiff had standing to sue the GNC store that he “has lived near . . . for many years and [from
which he] frequently purchases GNC products[.]”
It is true that Plaintiff has not alleged other facts regarding, for instance, his “occupation
or demonstrated travel habits,”
Ortiz
,
Defendant urges the Court to follow the analysis in Banana Republic, LLC and to conclude that Plaintiff has not properly alleged an intent to return on several grounds. First, it contends that it is “[t]elling[]” that “Plaintiff does not allege that he has ever visited Defendant’s store to purchase a gift card,” suggesting that this “raises a strong inference that Plaintiff does not intend to visit the store in the future, even if the alleged barriers are removed.” Def.’s Mot. at 20. The critical inquiry here is whether Plaintiff has alleged a plausible intent to return to Boston Market, where he was previously a customer, and not whether he previously visited the store specifically to purchase a gift card.
Second, Defendant notes that Plaintiff has “fil[ed] . . . 13 nearly identical complaints
against other retailers in this District,” seeking to cast doubt on whether Plaintiff has a genuine
intent to return. Def.’s Mot. at 21. Several other courts in this district have opined on this very
question – that is, what effect a litigant’s filing of similar claims against different defendants
should have on a standing analysis. As one court concluded, “[t]here is nothing inherently
wrong with filing duplicative lawsuits against multiple defendants if the harms to be remedied do
exist and are indeed identical.”
Mendez v. Apple Inc.
, No. 18-CV-7550 (LAP), 2019 WL
2611168, at *4 (S.D.N.Y. Mar. 28, 2019);
see also Camacho v. Vanderbilt Univ.
, No. 18-CV-
10694 (KPF),
Accordingly, Plaintiff has plausibly alleged standing, and Defendant’s Rule 12(b)(1) motion is denied.
II. Merits
Having found that Plaintiff has standing, the Court turns to Defendant’s Rule 12(b)(6)
motion. The ADA prohibits discrimination “on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any
place of public accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation.” 42 U.S.C. § 12182(a). To state a claim under Title III of the
ADA, a plaintiff must allege that “(1) she is disabled within the meaning of the ADA; (2)
defendants own, lease, or operate a place of public accommodation; and (3) defendants
discriminated against her by denying her a full and equal opportunity to enjoy the services
defendants provide.”
Wu v. Jensen-Lewis Co.
,
This action “presents a number of issues of first impression, all of which can be reduced
to one relatively straightforward question: does Title III of the ADA obligate retailers to provide
legally blind consumers with Braille-embossed (or otherwise accessible) gift cards?”
Banana
Republic, LLC
,
A. Whether a Gift Card Is a Public Accommodation First, Plaintiff attempts to argue that the gift cards are themselves a “place of public accommodation.” See Pl.’s Opp. at 17 (“[T]his Court should deem gift cards a ‘place of public accommodation’ in and of themselves.”); see also Compl. ¶ 42. This effort fails.
Title III of the ADA prohibits disability-based discrimination “by any person who owns, leases (or leases to), or operates a place of public accommodation” in connection with the goods and services “of [that] place of public accommodation.” 42 U.S.C. § 12182(a). Defining a “public accommodation,” the statute provides that “private entities are considered public accommodations . . . if the operations of such entities affect commerce” and fall into one of twelve categories. § 12181(7). Each of the twelve categories includes a list of specific entities followed by a general residual clause. See, e.g. , id. § 12181(7)(B) (“a restaurant, bar, or other establishment serving food or drink”); id. § 12181(7)(E) (“a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment”). While it was intended that “the 12 categories are an exhaustive list,” “within each category[,] the examples given are just illustrations.” U.S. Dep’t of Justice, ADA Title III Technical Assistance Manual: Covering Public Accommodations and Commercial Facilities, III-1.2000 Public Accommodations, available at https://www.ada.gov/taman3.html (visited on June 23, 2020).
Gift cards, however, bear no similarity to any of the entities included in the twelve
categories in 42 U.S.C. § 12181(7). Two interpretive canons –
noscitur a sociis
, which provides
that “a word is known by the company it keeps,” and
ejusdem generis
, which construes general
words followed in a statute by specific words to be of the same in kind as those specific words –
help inform the Court’s analysis here.
Yates v. United States
,
The Fifth Circuit’s decision in Magee v. Coca-Cola Refreshments USA, Inc. , 833 F.3d 530 (5th Cir. 2016), is instructive. There, a visually impaired plaintiff argued that Coca-Cola’s vending machines, located in a hospital and bus station, were not accessible. See id. at 531. The Fifth Circuit rejected the argument that a vending machine was a “place of public accommodation” because “a vending machine is not akin to any of the listed examples [in § 12181(7)].” Id. at 534. “[R]ather than falling within any of those broad categories of entities,” it explained, “vending machines are essentially always found inside those entities along with the other goods and services that they provide.” Id.
Indeed, Plaintiff’s own allegations emphasize the distinction between the good sold at a public accommodation and a public accommodation itself. In his complaint, Plaintiff repeatedly refers to gift cards as a product sold in Defendant’s restaurants. He alleges that “Defendant has sold store gift cards, presently sells store gift cards and, upon information and belief, intends to continue selling store gift cards that are not accessible to blind and vision-impaired consumers[.]” Compl. ¶ 15; see also id. ¶ 16 (explaining that he “telephoned Defendant’s customer service office in an attempt to purchase a store gift card from the Defendant and inquired if Defendant sold store gift cards containing Braille”). The gift cards sold at Defendant’s restaurants are thus similar in kind to the “food or drink” in the statutory text: “a restaurant, bar, or other establishment serving food or drink.” 42 U.S.C. § 12181(7).
In urging his novel theory, Plaintiff attempts to analogize gift cards to websites.
See
Pl.’s
Opp. at 17 ;
see also id.
at 4 (“[T]he cards themselves are treated as a ‘place of public
accommodation’ just like websites, because they are also a means of communication to assist
customers in interacting and obtaining the benefits of the public accommodation.”). Although
the Second Circuit has yet to rule on this issue, a number of courts in this district have held that
private commercial websites that affect commerce are “place[s] of public accommodation” under
the ADA. 42 U.S.C. § 12182(a);
see, e.g.
,
Harty v. Nyack Motor Hotel Inc.
, No. 19-CV-1322
(KMK),
A gift card, however, is not analogous to a website. In the ADA-website cases, courts
have largely found that a private commercial website serves as an alternative or additional
marketplace to one made of brick-and-mortar because the website also facilitates the sale and
exchange of goods and services. In
Del-Orden
, for instance, Judge Engelmayer concluded that a
website was a “place of public accommodation” because “interpretive tools strongly support
construing the term ‘public accommodation’ to apply to commercial marketplaces, including on
the Internet, whether or not these marketplaces take a conventional physical form.” 2017 WL
6547902, at *9. He noted that “[t]oday, few areas are more integral to ‘the economic and social
mainstream of American life’ than the Internet’s website.” (internal citation omitted));
see
also Andrews v. Blick Art Materials, LLC
,
But here there is no plausible argument that a gift card constitutes a “space” that “can provide the services of a public accommodation.” A gift card does not offer a place to purchase a good or service. Instead, the gift card is itself the good that can be purchased at such a place. “Put differently, a consumer can make a purchase with a gift card, but not on or in a gift card.” Id . at *8 . Indeed, Plaintiff fails to even substantively address the analogy to websites, only merely asserting that the two are similar. See, e.g. , Pl.’s Opp. at 17. Nor does he cite any case law to support this proposition.
Accordingly, the Court rejects Plaintiff’s argument that gift cards are a “place of public accommodation.”
B. Whether the ADA Requires Defendant to Sell Accessible Gift Cards Next, Plaintiff argues that even if gift cards are not themselves places of public accommodation, Defendant violates the ADA by failing to sell them in accessible form. See Compl. ¶ 55. Specifically, he contends that the accessible gift cards should “include Braille writing” to, in part, “identif[y] the name of the merchant and the denomination of the gift card[.]” Id. Plaintiff disputes, however, that gift cards are goods sold by Defendant, instead asserting that they are “an optional financial service.” Pl.’s Opp. at 13.
As an initial matter, the Court disagrees with Plaintiff’s contention that “[g]ift cards are
not goods” and that he “is not demanding specialized goods to be inventoried, nor is [he] seeking
Defendant to alter its current gift cards[.]”
Id
. Although the ADA does not define “goods,” the
Supreme Court recently considered the definition of “goods” under the Lanham Act – which also
does not define the term – and concluded that the most natural reading of that term was “[w]ares;
merchandise.”
Dastar Corp. v. Twentieth Century Fox Film Corp.
,
In disputing that gift cards are goods, Plaintiff argues that “gift cards are an optional
financial service providing an alternative method of payment,” Pl.’s Opp. at 13, or “a cash like
service,”
id.
at 17. In making this argument, Plaintiff analogizes gift cards to U.S. currency,
relying exclusively on
American Council of the Blind v. Paulson
,
Because the Court concludes that gift cards are goods sold by a public accommodation under the ADA, Defendant cannot be required to sell accessible gift cards. The Department of Justice’s (“DOJ”) implementing regulations clearly state that Title III of the ADA “does not require a public accommodation to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.” [5] 28 C.F.R. § 36.307(a). Accessible or special goods include, for example, “Brailled versions of books, books on audio cassettes, closed-captioned video tapes, special sizes or lines of clothing, and special foods to meet particular dietary needs.” Id. § 36.307(c). The rationale is that “[t]he purpose of the ADA’s public accommodations requirements is to ensure accessibility to the goods offered by a public accommodation, not to alter the nature or mix of goods that the public accommodation has typically provided.” 28 C.F.R. pt. 36, App’x C; see also Am. Br. at 5 (“One hallmark of the ADA and its implementing regulations is a careful balance between increasing accessibility for people with disabilities on the one hand, and allowing places of public accommodation to conduct their business efficiently on the other.”).
The facts presented here are similar in kind to the hypotheticals posed in the DOJ’s commentary on these regulations. The DOJ explains that while “a bookstore . . . must make its facilities and sales operations accessible to individuals with disabilities,” it “is not required to stock Brailled or large print books.” 28 C.F.R. pt. 36, App’x C. Similarly, “a video store must make its facilities and rental operations accessible, but is not required to stock close-captioned video tapes.” Id. Applying that logic here, while Defendant must make its restaurants accessible to Plaintiff, it is not required to stock accessible goods, including accessible gift cards.
Several circuits have recognized the ADA’s limit in this regard. As the Seventh Circuit
noted, “[t]he common sense of the statute is that the content of the goods or services offered by a
place of public accommodation is not regulated.”
Doe
,
To be sure, we think that the plain language of the statute demonstrates that a business is not required to alter or modify the goods or services it offers to satisfy Title III. The prohibition of [Title III] is directed against owners, etc., of places of public accommodation. It prohibits them from discriminating against the disabled. The discrimination prohibited is that the owner, etc., may not deny the disabled the full and equal enjoyment of the business’s goods and services. Practically speaking, how can an owner, etc., deny the full and equal enjoyment of the goods or services that he offers? By denying access to, or otherwise interfering with, the use of the goods or services that the business offers. The goods and services that the business offers exist a priori and independently from any discrimination. Stated differently, the goods and services referred to in the statute are simply those that the business normally offers.
McNeil v. Time Ins. Co.
,
Because gift cards are goods sold by Defendant and because the ADA does not require a public accommodation to alter its inventory to include accessible goods, Defendant need not make its gift cards accessible. [6]
C. Whether Defendant Fails to Provide Sufficient Auxiliary Aids Finally, Plaintiff argues that he “has plausibly pled that the lack of sufficient auxiliary aids regarding Defendant’s gift cards amounted to a denial of the full and equal enjoyment of services Defendant otherwise provides to the public.” Pl.’s Opp. at 19; see id. at 20 (“Defendant does not offer an alternative means of effective communication for its gift cards.”). In particular, he asserts that “[d]ue to the lack of auxiliary aids for Defendant’s gift cards, Plaintiff cannot ascertain information about the gift card, like the balance, the gift card’s terms and conditions of use, or even be able to distinguish Defendant’s branded gift cards from others in the same manner as non-blind persons.” Compl. ¶ 20.
Under the ADA, discrimination by a public accommodation is defined, in part, as: [A] failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden[.]
42 U.S.C. § 12182(b)(2)(A)(iii); see also 28 C.F.R. § 36.303(a). DOJ regulations, therefore, require “[a] public accommodation [to] furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. § 36.303(c)(1). Examples of “auxiliary aids and services” “include[] . . . qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments.” 42 U.S.C. § 12103(1)(B); see also 36 C.F.R. § 36.303(b)(2) (listing examples of “auxiliary aids and services” as “[q]ualified readers,” “Brailled materials and displays,” and “large print materials”). The regulations do not prescribe the adoption of a particular auxiliary aid or service, but instead recognize that “effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” Id. § 36.303(c)(1)(ii). While “[a] public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, . . . the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.” 28 C.F.R. § 36.303(c)(1)(ii); see also 28 C.F.R. pt. 36, App’x C (“The auxiliary aid requirement is a flexible one.”).
First, it appears that Plaintiff seeks the implementation of only one particular auxiliary aid – Braille. At oral argument, Plaintiff stated that “without Braille, all other auxiliary aids fail.” Dkt. 37 at Tr. 25:3; see also id. at Tr. 25:12-15 (“[W]e pose that the only auxiliary aid that works, in the first instance, is braille[.]”); Pl.’s Opp. at 20 (“Plaintiff has plausibly alleged the absence of brailled gift cards[.]”). But as the regulations make clear, “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.” 28 C.F.R. § 36.303(c)(1)(ii); see also 28 C.F.R. pt. 36, App’x C (“Based upon a careful review of the ADA legislative history, . . . Congress did not intend under [T]itle III to impose upon a public accommodation the requirement that it give primary consideration to the request of the individual with a disability.”). [7]
Examples in the DOJ’s commentary on these regulations illustrate the flexibility that a
public accommodation has in choosing what auxiliary aid or service to provide. For instance, “a
restaurant would not be required to provide menus in Braille for patrons who are blind, if the
waiters in the restaurant are made available to read the menu,” and “a clothing boutique would
not be required to have Brailled price tags if sales personnel provide price information orally
upon request.” 28 C.F.R. pt. 36, App’x C;
see also Camarillo
,
To the extent that Plaintiff argues that Defendant’s gift cards lack other auxiliary aids or services, his allegations are too conclusory to survive the motion to dismiss. Plaintiff asserts that he “telephoned Defendant’s customer service office in an attempt to purchase a store gift card from the Defendant and inquired if Defendant sold store gift cards containing Braille” and was “informed . . . that Defendant does not sell store gift cards containing Braille.” ¶ 16. He also alleges that Defendant’s employee did not “offer any alternative auxiliary aids or services to the Plaintiff with respect to Defendant’s gift card.” Id. ¶ 17. Based on that conversation, and that he could not elsewhere “locate accessible store gift cards to purchase,” Plaintiff alleges that “[u]pon information and belief, Defendant does not offer auxiliary aids with respect to gift cards.” Id. ¶¶ 18-19.
These allegations do not plausibly allege that Plaintiff was denied an appropriate
auxiliary aid or service beyond being denied a Braille-embossed gift card. Plaintiff only asked
Defendant’s employee about the availability of a Braille-embossed gift card. He did not ask
whether Defendant offers any other auxiliary aid or service to assist visually impaired people
with respect to its gift cards. Nor does he allege that he took
any
other steps to find out what
auxiliary aids or services Defendant might offer with respect to its gift cards.
See Banana
Republic, LLC
,
III. State & Municipal Claims
Because the Court dismisses the ADA claim in this action, it declines to exercise
supplemental jurisdiction over Plaintiff’s state and municipal claims. Federal district courts have
supplemental jurisdiction over non-federal law claims “that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy under Article
III of the United States Constitution.” 28 U.S.C. § 1367(a). But a district court “may decline to
exercise supplemental jurisdiction over a claim” once it “has dismissed all claims over which it
has original jurisdiction.” § 1367(c)(3). “[I]n the usual case in which all federal-law claims
are eliminated before trial, the balance of factors to be considered under the [supplemental]
jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point toward
declining to exercise jurisdiction over the remaining state-law claims.”
Valencia ex rel. Franco
v. Lee
,
Here, the Court has already granted Defendant’s motion to dismiss as to the federal claim. Because the Court addressed and dismissed that ADA claim early in this litigation, declining jurisdiction over the state and municipal claims would not disserve the principles of judicial economy, convenience, or fairness.
CONCLUSION
For the foregoing reasons, Defendant’s Rule 12(b)(6) motion is granted. The Clerk of Court is respectfully directed to terminate the motions pending at docket entries 14 and 19. SO ORDERED.
Dated: June 29, 2020
New York, New York
Ronnie Abrams
United States District Judge
Notes
[1] The Court draws the following facts from Plaintiff’s amended complaint and the documents attached
thereto,
see
Dkt. 17, and accepts them as true for purposes of this motion.
See Kassner v. 2nd Ave. Delicatessen
Inc.
,
[2] In his opposition brief, Plaintiff then states that Defendant’s gift cards “can only be used in-restaurant and not online.” Pl.’s Opp. at 3.
[3] Plaintiff does not attempt to argue that gift cards fall into a specific category of 42 U.S.C. § 12181(7).
[4] Plaintiff also obliquely suggests that gift cards are “an optional financial service,” and thus not goods,
because the Internal Revenue Service treats “[t]he sale of a gift certificate or a gift card . . . as an advance payment
for tax purposes.” Pl
.
’s Opp. at 13 n.38. The Court, however, agrees with Judge Woods that “[h]ow and when the
retailer ultimately reports the income generated from the sale of a gift card . . . functionally does not change the fact
that a retailer sells gift cards to consumers the same way that they sell any other product in its stores.”
Banana
Republic, LLC
,
[5] As Defendant notes, “Congress and the DOJ are familiar with Braille and know how to require Braille
when they wish to do so.” Def.’s Mot. at 12 n.9. For instance, the DOJ regulations note that ATMs and fare
machines must include “Braille instructions,” in addition to other accessibility requirements. 28 C.F.R. pt. 36,
App’x B; Def.’s Mot. at 12 n.9. It was thus a policy decision, which the Court must respect, not to require public
accommodations to carry accessible goods.
See Doe v. Mut. of Omaha Ins. Co.
,
[6] Defendant also contends that what Plaintiff seeks are “fundamental alterations of [its] gift cards, another thing the ADA explicitly states is not required.” Def.’s Reply at 2. A place of public accommodation is not required to modify its “policies, practices, or procedures” or take other steps to avoid disability-based discrimination if “the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii)-(iii). Because the Court concludes that the ADA does not require Defendant to alter gift cards in the first place, it need not consider whether the fundamental-alteration exception might apply.
[7] The amici curiae brief questions whether Braille would even “be an effective or efficient auxiliary aid or
service” for gift cards. Am. Br. 10-11. It first contends that because a small number of people who are visually
impaired can read Braille, it would be a wasteful “burden and expense of designing and stocking Braille gift
cards[.]”
Id.
Second, it notes that adding Braille to a gift card is a significant design change and that gift cards do
not have “sufficient space to include all the information that Plaintiff seeks or that amici’s members might otherwise
be required to include.” at 11. Because the Court finds that Plaintiff does not plausibly allege that Defendant
fails to provide an appropriate auxiliary aid or service, it need not consider whether Braille would be viable auxiliary
aid.
See Banana Republic, LLC
,
[8] Plaintiff attempts to analogize gift cards to ATMs, which must include “Braille instructions.” 28 C.F.R. pt. 36, App’x B. But Plaintiff’s comparison of a gift card to an ATM is inapposite. At a minimum, an ATM requires inputting a personal pin number, which will then display one’s account information and permit someone to withdraw money at any given time. A gift card, by contrast, does not have similar features or present any of the same risks of possible abuse. Gift cards do not require a particular pin to use; a person cannot exchange the balance of a gift card for cash; and its use is often limited to a particular establishment and money balance. In brief, a gift card does not raise the same “heightened privacy concerns” as ATMs. Pl.’s Opp. at 10.
[9] There is some tension in Plaintiff’s argument that “the lack of sufficient auxiliary aids regarding Defendant’s gift cards amounted to a denial of the full and equal enjoyment of services Defendant otherwise provides to the public.” Pl.’s Opp. at 19. Plaintiff admits that he spoke with one of Defendant’s employees about its gift cards, Compl. ¶ 16, and received an answer to the question that he posed. If anything, this indicates that Plaintiff is capable of speaking with Defendants’ employees – either on the phone or in one of the restaurants – to seek assistance with using Defendant’s gift cards.
[10] Plaintiff also asserts that Defendant has “[f]ail[ed] to train [its] employees with the proper methods of
assisting blind and visually-impaired customers with regards to its gift cards and auxiliary aids.” Compl. ¶ 48(e).
But this allegation is also conclusory. Plaintiff never explains how Defendant’s employees are insufficiently trained.
And his allegations regarding the single call he had with one of Defendant’s employees do not support this assertion.
See also West
,