In Calcano v. Swarovski N.A. Ltd., No. 20-1552 (2d Cir. June 2, 2022), a 2-1 panel of the Second Circuit holds—in a case involving four blind plaintiffs—that a template complaint used by a law firm in scores of ADA public-accommodation cases that it filed lacked enough in the way of facts to plausibly allege an Article III injury for standing.
Plaintiffs filed putative class actions alleging that various retailers did not sell braille gift cards or “offer any alternative auxiliary aids or services . . . with respect to [the] gift cards,” in violation of Title III of the ADA plus related state and local laws. Plaintiffs alleged in each case that Defendants “failed to provide visually impaired patrons with the particular level of services available to non-disabled patrons,” and 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.”
These actions, and hundreds of others filed by the same law firm, landed in front of the same federal district court judge. Defendants moved to dismiss for lack of standing and failure to state a claim. Fed. R. Civ. P. 12(b)(1), (6). The court granted the motion on the jurisdictional standing issue. It held that the “all-too-generic complaint” did not allege “enough facts to plausibly plead that [plaintiffs] intend to ‘return’ to the place where he encountered the professed discrimination.” Alternatively, the court held on the merits that “the ADA does not require businesses to offer braille gift cards, and thus Dominguez failed to state a claim under the ADA.”
On appeal, the panel majority affirms on the standing issue. To demonstrate an Article III injury under the ADA’s public-accommodation provisions, the Second Circuit holds that a plaintiff must establish that “(1) the plaintiff [suffered] 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.”
The plaintiffs in these cases, the panel majority holds, fail to allege facts that plausibly show that they would return to the subject businesses if braille gift cards were provided. Each complaint alleged that the plaintiffs reside “in close proximity to” Defendants’ businesses, were “customer[s] at Defendant’s [location] on prior occasions,” and “intend 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.” The panel majority finds these allegations too conclusory, though, to support standing.
Where the complaints included more specific facts, the panel majority holds that they were often implausible on their face. One alleged the address of a Kohl’s department store that did not exist. Another alleged that defendant Banana Republic, a clothing retailer, was a grocery store. The complaints mostly failed to allege home or business addresses for the parties that might give rise to an inference that plaintiffs might return to the businesses.
Moreover, “we cannot ignore the broader context of Plaintiffs’ transparent cut-and-paste and fill-in-the-blank pleadings. The four Plaintiffs before us filed eighty-one of over 200 essentially carbon-copy complaints between October and December 2019. All of the complaints use identical language to state the same conclusory allegations. Of the roughly 6,300 words in Calcano’s complaint against [defendant] Swarovski, for example, only 26 words—consisting of party names, dates, and Defendants’ office addresses and states of incorporation—are different from Dominguez’s complaint against [defendant] Banana Republic. They even contain the same typos.”
“This backdrop of Plaintiffs’ Mad-Libs-style complaints further confirms the implausibility of their claims of injury . . . . [A]ll of [plaintiffs’] plans depend on the availability of braille gift cards even though Plaintiffs never explain why they want those cards in the first place. Although we might excuse a stray technical error or even credit an odd allegation standing alone as an idiosyncratic preference—to do so here in light of the cumulative implausibility of Plaintiffs’ allegations would be burying our heads in the sand.”
Concurring in the judgment, Judge Lohier would reverse on the jurisdictional issue but affirm dismissal on the merits. The concurring judge would reject intent-to-return as a jurisdictional minimum for injury, finding “no basis to erect any additional requirement that disabled individuals must meet to have standing to sue under Title III of the ADA.” But plaintiffs must lose because they “have not adequately alleged that the defendants failed to provide them with ADA-compliant auxiliary aids and services in connection with their desired use of gift cards.”