Calcano v. Swarovski N. Am. Ltd.

36 F.4th 68

Marcos CALCANO, on behalf of himself and all other persons similarly situated; Yovanny Dominguez, on behalf of himself and all other persons similarly situated; Braulio Thorne, on behalf of himself and all other persons similarly situated; James Murphy, on behalf of himself and all other persons similarly situated, Plaintiffs-Appellants,

v.SWAROVSKI NORTH AMERICA LIMITED; Banana Republic, LLC ; Jersey Mike's Franchise Systems, Inc.; the Art of Shaving-FL, LLC; Kohl's, Inc., Defendants-Appellees.^*

Docket Nos. 20-1552(Lead)

20-1559(Con)

20-1588(Con)

20-1594(Con)

20-1608(Con)

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: January 13, 2021

Decided: June 2, 2022

G. Oliver Koppell, Law Offices of G. Oliver Koppell & Associates, New York, NY (Daniel F. Schreck, Law Offices of G. Oliver Koppell & Associates, New York, NY; Bradly G. Marks, Marks Law Firm, P.C., New York, NY; Jeffrey M. Gottlieb, Gottlieb & Associates, New York, NY, on the brief), for Plaintiffs-Appellants.

Stephanie Schuster, Morgan, Lewis & Bockius LLP, Washington, DC (Anne Marie Estevez and Beth S. Joseph, Morgan, Lewis & Bockius LLP, Miami, FL; Michael F. Fleming, Morgan, Lewis & Bockius LLP, New York, NY, on the brief), for Defendants-Appellees Swarovski North America Limited and Banana Republic, LLC.

Joseph J. Lynett (Rebecca M. McCloskey, on the brief), Jackson Lewis P.C., White Plains, NY, for Defendants-Appellees Jersey Mike's Franchise Systems, Inc. and The Art of Shaving-FL, LLC.

Michael Vatis (Michael Keough and Meghan Newcomer, on the brief), Steptoe & Johnson LLP, New York, NY, for Defendant-Appellee Kohl's, Inc.

James A. Dean, Womble Bond Dickinson (US) LLP, Winston-Salem, NC; A. Owen Glist, Constantine Cannon LLP, New York, NY, for Amici Curiae The Retail Litigation Center, Inc., Restaurant Law Center, National Retail Federation, and National Association of Theatre Owners, in Support of Defendants-Appellees.

Before: Livingston, Chief Judge, and Lohier and Park, Circuit Judges.^**

Judge Lohier concurs in a separate opinion.

Park, Circuit Judge:

This appeal involves five lawsuits in which visually impaired plaintiffs sued defendant stores under the Americans with Disabilities Act ("ADA") for failing to carry braille gift cards. The five nearly identical complaints allege that Plaintiffs live near Defendants’ stores, have been customers in the past, and intend to purchase gift cards when they become available in the future. But missing from these conclusory allegations is any explanation of how Plaintiffs were injured by the unavailability of braille gift cards or any specificity about Plaintiffs’ prior visits to Defendants’ stores that would support an inference that Plaintiffs intended to return. The United States District Court for the Southern District of New York (Woods, J .) dismissed Plaintiffs’ ADA claims for lack of standing and, in the alternative, for failure to state a claim. We affirm because Plaintiffs’ conclusory, boilerplate allegations fail to establish standing.

We have held that an ADA plaintiff has suffered an injury in fact when, among other things, "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." Kreisler v. Second Ave. Diner Corp. , 731 F.3d 184, 188 (2d Cir. 2013). But conclusory allegations of intent to return and proximity are not enough—in order to "satisfy the concrete-harm requirement" and to "pursue forward-looking, injunctive relief," Plaintiffs must establish a "material risk of future harm" that is "sufficiently imminent and substantial." TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2210, 210 L.Ed.2d 568 (2021). Plaintiffs have not done that here. We thus agree with the district court that Plaintiffs lack standing and affirm. We do not reach Plaintiffs’ other arguments because standing is a jurisdictional requirement.

I. BACKGROUND

A. Factual Background

Plaintiffs Marcos Calcano, Yovanny Dominguez, Braulio Thorne, and James Murphy are visually impaired individuals who rely on braille to read written materials.¹ Defendants Swarovski North America Limited, The Art of Shaving–FL, LLC, Banana Republic, LLC, Jersey Mike's Franchise Systems, Inc., and Kohl's, Inc. are regional or national chains of retail stores that sell gift cards—i.e. , pre-paid cash cards that can be used to make purchases at Defendants’ locations.²

The complaints identically allege that each Plaintiff "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." App'x at 101, 166, 286, 350, 416. Plaintiffs were "informed," however, that Defendants "do[ ] not sell store gift cards containing Braille." Id. Moreover, Defendants failed to "offer any alternative auxiliary aids or services ... with respect to [the] gift cards." Id.

Plaintiffs thus allege that they were denied access to Defendants’ goods and services, which they assert constitutes discrimination under the ADA. In particular, the complaints maintain that because of "the lack of auxiliary aids" for Defendants’ gift cards, Plaintiffs are unable to "ascertain information about the gift card, like the balance, the gift card's terms and conditions of use," nor are they "able to distinguish" Defendants’ "branded gift cards from others in the same manner as non-blind persons." Id. at 102, 167, 287, 351, 417. Plaintiffs assert that Defendants "failed to provide visually impaired patrons with the particular level of services available to non-disabled patrons." Id. In addition, Plaintiffs claim that the "inaccessibility of ... store gift cards" amounts to "access barriers" that "have caused and continue to cause a denial" of Plaintiffs’ "full and equal access, and ... deter Plaintiff[s] on a regular basis from purchasing, accessing, and utilizing the store gift cards." Id. at 106, 171, 291, 355, 421.

Plaintiffs state that they live near their respective Defendants’ stores and have been customers "on prior occasions." Id. at 102, 167, 287, 351, 417. Plaintiffs also claim that they "intend[ ] to immediately purchase at least one store gift card from the Defendant[s] as soon as the Defendant[s] sell[ ] store gift cards that are accessible to the blind." Id.

B. Procedural Background

Plaintiffs’ actions—five out of hundreds of substantively identical lawsuits filed in the Southern District of New York in late 2019—were assigned to the same district judge and have a similar procedural history. Plaintiffs filed amended complaints between February and March of 2020. All of the amended complaints assert claims under the ADA and related state and local laws, seeking damages, attorneys’ fees, and injunctive relief.

Defendants moved to dismiss for lack of standing and failure to state a claim. See Fed. R. Civ. P. 12(b)(1), (6). On April 23, 2020, the district court granted Banana Republic's motion and dismissed Dominguez's complaint. See Dominguez v. Banana Republic, LLC , No. 19-cv-10171, ––– F. Supp. 3d ––––, 2020 WL 1950496 (S.D.N.Y. Apr. 23, 2020). Over the next several days, the district court issued separate orders granting the other Defendants’ motions, concluding that the complaints "suffer[ed] from the same pitfalls as those in Dominguez v. Banana Republic ." App'x at 126, 312, 376, 538. Plaintiffs challenge the court's reasoning in its Dominguez opinion, which provided the basis for each complaint's dismissal. We therefore summarize that decision to the extent it applies to all Plaintiffs.

The court first found that Dominguez failed to establish standing. See Dominguez , ––– F. Supp. 3d at ––––, 2020 WL 1950496, at *4. It explained that an ADA plaintiff has standing to sue for injunctive relief if "it was reasonable to infer, based on the past frequency of plaintiff's visits and the proximity of defendants’ [services] to plaintiff's home, that plaintiff intended to return to the subject location." Id. at ––––, at *3 (quoting Kreisler , 731 F.3d at 187–88 (alteration in original)). Emphasizing the fact-intensive nature of this inquiry, the court determined that the "all-too-generic complaint" did not allege "enough facts to plausibly plead that [Dominguez] intends to ‘return’ to the place where he encountered the professed discrimination." Id. at ––––, at *4. The court thus concluded that Dominguez "lacks standing to pursue injunctive relief under the ADA" because he failed "to allege any nonconclusory facts of a real or immediate threat of injury." Id.

In the alternative, the district court also concluded that the ADA does not require businesses to offer braille gift cards, and thus Dominguez failed to state a claim under the ADA. First, the court determined that "a retailer need not alter the mix of goods that it sells to include accessible goods for the disabled." Id. at ––––, at *7. It found that braille gift cards fit into a category of "special, accessible merchandise" that a place of public accommodation is not required to provide. Id. at ––––, at *6–*7. Second, the court concluded that gift cards are not themselves places of public accommodation because they "fit into none" of the twelve categories included in the ADA's definition of that term and are not "space[s] ... that can provide the services of a public accommodation." Id. at ––––, at *7. Lastly, the court noted that "[a] public accommodation can choose among various alternative[ ]" auxiliary aids to offer customers, and Dominguez did not adequately plead that he explored "the range of auxiliary aids and services" Banana Republic provided to the visually impaired. Id. at ––––, at *10–*11. Finally, the court declined to exercise supplemental jurisdiction over the remaining state- and city-law claims. Id. at ––––, at *5, *12.

The court dismissed the amended complaints without prejudice, allowing Plaintiffs fifteen days to...