issue allocations i should say and to each party so we will begin first with your talent image that merchants violated the americans with disabilities act like they're going to provide gift cards that are accessible and utilize a book by the blind because they do not provide any information  the pleadings need statutory requirement i must admit i was assisted by judge katzman book judging statutes because judge woods decisions have to be analyzed in light of the thousand and eight and it's an interesting statute because it's specifically states in its pretty embassy that the two thousand a demand ment's were necessary because congress had found that the nine hundred and ninety s that was t of visits and then the proximity of the store to the home and as i read the complaint on the st part is folks in the past frequency all they say is that each plaintiff has been a customer at the defendant store or restaurant what does that mean what does that tell us that frequency that could be one thing could be weekly and we just don't know can you shed any more light on that well i was i would say that it isn't necessary that they have visited the stores frequently it's necessary that they have visited the stores i suppose because that shows that discreet they were discriminated or they would be discriminated against or they have been discriminated against because they give cards weren't available i don't think they have to have visited the store frequently i think the issue is was the store accessible i think at the diner cases the idea st of all in the diner cleanest don't even live in the same borough and any new york city that's a bit of a stretch to say that they would you know they're deterred from going it's one thing if the taco bell is on the same block but if you're traveling from bronx into manhattan to  get a sandwich that seems a little bit in cost of all doesn't it no i don't think so at all in fact i think jersey might says lots of branches near the beach and you might well go to the beach and get a pizza there i just think what  you tell me anything about specifically the plainest here i guess what i'm getting is that the complaint themselves are very vague and don't have any specificity about what the point you know what the history was a visiting a store what they where you know why they would go there if they lived in a different borough and you know your hypotheticals or or response that it's not necessary to you know to paint those things i don't think gets to the point that i'm trying to get well then let me just say that the hardy case which is in this circuit the side that even if you're going to a particular place we're going to go to a particular place to test whether the a b a provisions have been complied with that's for a patient to grandstanding that's the hardy case the fact that they were there yes they have to have been there in this case they all indicate they actually shop there it's better than the diner where the person just said he passed in front of the diner here they actually patronize the store and as i said before as i said just now actually the hardy case teaches us that even if they're doing it as students and the fact is about this even in this context where we're talking about constitutional standing the motion to dismiss the complaint stage it's very minimal and here as i understand it  just a moment please card is offered they would intend to return and buy a gift card i think that's more than sufficient to allege that they would be injured in the future in that they require an injunction to avoid that injury i have a  as to calls i have a question the operative complaint as i understand it alleges that one of call stores is located within a block of the plaintiff residence which i understood to be west rd street in manhattan i think there's a mistake there i think if that may be a mistake because there's no call store there yes i think that i think that maybe in the state you're on that but but you're correct i think that that may be a mistake in that particular case to state that it was nearby but but i again i think here we resta specific leads that they've actually put they actually shop there in the past so obviously they can get there because they allege and again we have to accept these meetings as true on its face or perhaps as suggested  even in the hardy case and the bernstein case a hearing could be held on these issues the clouds a question but i think for pleading standards i think you have to accept the pleading and i think that the the the that the individual didn't shop there in the past then perhaps it could be could be dismissed or if it was impossible for the for the for the plaintiffs to get to the store but nice to hear your hi alas you'll have to minutes for a bottle but if i could just ask you this one question would you help me by showing me where it's been alleged that  important here because the dependent make a great deal out of the possibility of the store agent assisting the person st of all if the story gets going to assist the person in the car has no a brand markings the agent would have to go through the t purchase on the phone by reference to the gets caught so that there's no story agent in the person's home when they're calling the store to to inquire and then they have a card and that they can even identify on the standard and why appellant have not met any of the three prongs of the standards of the standard that this court enunciated in the nd avenue tyner case st they haven't alleged any actual injury under a in the past they also happen alleged that the injury is likely to continue and rd i think what this court has rightly focused on they have not alleged sufficient facts to make it plausible that they will be harmed imminently in the future and ultimately that is the standard for seeking an a b a injunction against future harm is it is any harm imminent in the future and this court has made clear in the nd avenue diner case in the camera real case and in other cases that in order to render a claim of peach or harm a plausible there have to be some factual allegations not merely conclusory assertions but factual allegations to make it plausible that the plaintiff will visit the location where he alleged  previous harm and be harmed again here there are no such facts whatsoever the appellant's merely allege in the most general terms that they shopped at the kelleys stores  in the past and that if the apologies offered gift cards with braille they would buy them in the future there are no allegations about what locations they visited in the past how frequently they visit those locations in the they might have bought what they might be interested in buying no allegations going to be visited other stores in the vicinity be a police stores nothing of that sort whatsoever terms that they'll have to actually go back and get rejected repeatedly they know that they don't provide the real gift cards and they've said that they will buy the card and use them as soon as they become available why isn't that enough it's not enough because it's what the supreme court has called merely a some day intention that is they've said that some day they intend to return without any specifics the supreme court in the lou honda decision in just a month ago in the carney the adams case the court has reiterated that these sorts of general expressions of intent to return or to take some action are insufficient these are some day intentions that just don't you know but i don't know if that's right the some days when when you guys provide what they need to use the locations they would intend to use these where them or or how close they might live to these locations and these are the sorts of factual allegations that are necessary to make it plausible that they will testified before a jury or whatever the fact finder d was i intend to go back as soon as they make the gift cards available without any more elaborat term crime and that there may be other things that your colleagues i think it will we'll deal with that i might agree with but i'm having a hard time understanding how if just the mere testimony  the bernstein case is a good example i think your honor where the plaintiff alleged that that central park was was inaccessible and he he had far more allegations than any of the  specified the sorts of things that that prevented him from visiting parts of central park to be wanted to visit and the court said that his his allegations of intent to return the future despite all of those allegations of this is in the past were insufficient to show anything more than a some day intention to return to central park and here the parents don't even allege anything close to what was to what this court found insufficient in the bernstein case so i think that's that's that's a good example and again just to go back to the nd avenue diner case there the appellant specified the address of the location that he intended to visit that it was several blocks from his home not in a different borough or a different county or even a different state but just several blocks that he parroted three or four times a week that he frequents other restaurants in his neighborhood those were the sort of factual allegations that the court found were sufficient to get asked to a motion to dismiss but again there's nothing even remotely like those allegations in this case having trouble understanding why i gift card doesn't provide access to goods even if it's not a good itself well your honor if gift card is a good one it is purchased actually my question access is if we were talking about access to goods why isn't a gift card and access to goods i have a gift card that allows me to do you get cars that they wanted to purchase the defendant did not knock the kind of special gift card with braille writing that they wanted and that access content distinction applies to good and it applies to anything else a business offered in the terms of the thirteen all come to think category but the list of twelve in that part of the statute or is that part of the manual that the twelve categories are soft if yeah your hon but the list is exhaustive based on plain language and that thirteen category can't just be created by the court that would be to happen from congress now playing a sort of ancillary argument that a place of public accommodation doesn't need to be a physical place is beside the point here because this case doesn't present the question whether nonphysical places like website are places the public accommodation and indeed even the district court read the a b a so broadly notice and a simple inquiry you know it's really out of the blue recall the cut the alleged contact here also which is it was a phone call you know out of the blue we never nobody saw the person just a conversational had permitted the conversation to continue because what what would naturally happen in a situation like this is you would identify yourself to somebody who was interested in purchasing a gift card either on behalf of yourself or a blind person and wanted to know if you have braille gift cards and if not how does a blind person listens to cards had that kind of simple discussion a follow up taking place that would have been a conversation i will allegations were made to a jury that would satisfy the standing requirement no further information is required and the dyna changes are not to the contrary all they state is that the individual passed the diner don't necessarily know what you're going to bite you might give the gift card to give to someone else you certainly don't know what they're going to buy so and we specifically clean that alternative services are not sufficient especially not complete your thought and then your time is up ok judge what specifically stated good goods are in fact they can be used in place of cash at the stores the fact is  and again these people could be testers and said by the hardly they do not need to show that they are going to go to the school every day they just need to show that they would buy the good card if it was made excess to them and that in this case that has not been shown therefore an injunction is required that gets to to enable the blind to utilize the get on the same way a sighted person can thank you thank