20

- 1552

- cv (L) Calcano v. Swarovski N. Am. Ltd.

1 

# United States Court of Appeals 2 

# for the Second Circuit 3 4 August Term 20 20 5 6 ( Argued : January 13, 2021 Decided: June 2, 2022 ) 7 8 Docket No s

. 20

- 1552( L e a d ), 20

- 1559( Con ), 20

- 1588( Con ), 20

- 1594( Con ), 9 20

- 1608( Con ) 10

_____________________________________ 11 12 MARCOS CALCANO , on behalf of himself and all other persons 13 similarly situated ; YOVANNY DOMINGUEZ , on behalf of himself and 14 all other persons similarly situated ; BRAULIO THORNE , on behalf of 15 himself and all other pe rsons similarly situated ; JAMES MURPHY , 16 on behalf of himself and all other persons similarly situated
, 17 Plaintiff s

- A ppellant s , 18 19

v. 20 21 SWAROVSKI NORTH AMERICA LIMITED ; BANANA 22 REPUBLIC, LLC ; JERSEY MIKE’S FRANCHISE SYSTEMS, INC. ; 23 THE ART OF SHAVING

- FL, LLC ; KOHL’S , INC. , 24 Defendant s

- Appellee s. * 25

_____________________________________ 26 Before: 27 28 L IVINGSTON , C hief Judge , and L OHIER and P ARK , Circuit Judge s

. ** 29 30

* The Clerk of the Court is respectfully directed to amend the caption of the lead appeal, 20

- 1552, as set forth above.

** Judge Robert A. Katzmann, of the United States Court of Appeals for the Second Circuit,

wa s part of this panel but passed away following oral argument. The panel was reconstituted in accordance with regular procedures.2 This appeal involves five lawsuits in which visually impaired plaintiffs sued 1 defendant stores under the Americans with Disabilities Act (“ADA”) for failing to 2 carry braille gift cards. The five nearly identical complaints allege that Plaintiffs 3 live near Defendants’ stores, have been customers in the past, and intend to 4 purchase gift cards when they become available in the future. But missing from 5 these conclusory allegations is any explanation of how Plaintiffs were injured by 6 the unavailability of brai lle gift cards or any specificity about Plaintiffs’ prior visits 7 to Defendants’ stores that would support an inference that Plaintiffs intended to 8 return. The United States District Court for the Southern District of New York 9 (Woods, J. ) dismissed Plainti ffs’ ADA claims for lack of standing and, in the 10 alternative, for failure to state a claim. We AFFIRM because Plaintiffs’ conclusory, 11 boilerplate allegations fail to establish standing. 12 Judge L OHIER concurs in a separate opinion. 13 14 G. O LIVER K OPPELL , Law Offices of G. Oliver 15 Koppell & Associates, New York, NY 16 (Daniel F. Schreck, Law Offices of G. Oliver 17 Koppell & Associates, New York, NY; 18 Bradly G. Marks, Marks Law Firm, P.C., 19 New York, NY; Jeffrey M. Gottlieb, Gottlieb 20 & Associates, New York , NY, on the brief ) , for 21 Plaintiff s

- Appellant s

. 22 23 S TEPHANIE S CHUSTER , Morgan , Lewis & 24 Bockius LLP, Washington, DC (Anne Marie 25 Estevez and Beth S. Joseph, Morgan, Lewis 26 & Bockius LLP, Miami, FL; Michael F. 27 Fleming, Morgan, Lewis & Bockius LLP, 28 New York, NY, on the b rief ), for Defendants

29 Appellees Swarovski North America Limited 30 and Banana Republic, LLC

. 31 32 J OSEPH J. L YNETT (Rebecca M. McCloskey, on 33 the brief ), Jackson Lewis P.C., White Plains, 34 NY, for Defendants

- Appellees Jersey Mike’s 353 Franchise Systems, Inc. and The Art of Shaving

1 FL, LLC

. 2 3 M ICHAEL V ATIS (Michael Keough and 4 Meghan Newcomer, on the brief ) , Steptoe & 5 Johnson LLP, New York, NY, for Defendant

6 Appellee Kohl’s , Inc

. 7 8 James A. Dean , Womble Bond Dick in son 9 (US) LLP, Winston

- Salem, NC; A. Owen 10 Glist, Constantine Cannon LLP, New York, 11 NY, for Amici Curiae The Retail Litigation 12 Center, Inc., Restaurant Law Center, National 13 Retail Federation, and National Association of 14 Theatre Owners, in S upport of Defendants

15 Appellees

. 16 17 P ARK , Circuit Judge : 18
This appeal involves five lawsuits in which visually impaired p laintiffs sued 19

defendant stores under the Americans with Disabilities Act (“ADA”) for failing to 20
carry braille gift cards

. The five nearly identical complaints allege that Plaintiffs 21

live near Defendants’ stores, have been customers in the past, and intend to 22
purchase gift card s when they become available in the future. But missing from 23
these conclusory allegations is any explana tion of how Plaintiffs were injured by 24
the unavailability of braille gift cards or any specificity about Plaintiffs’ prior visits 25

to Defendants’ stores that would support an inference that Plaintiffs intended to 26

return . The United States District Court fo r the Southern District of New York 274 (Woods, J .) dismissed Plaintiffs’ ADA claims for lack of standing and, in the 1

alternative, for failure to state a claim. We affirm because Plaintiffs’ conclusory, 2
boilerplate allegations fail to establish standing. 3

W e have held that a n ADA plaintiff has suffered an injury in fact when , 4
among other things, “ it was reasonable to infer, based on the past frequency of 5
plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, 6
that plaintiff intend ed to return to the subject location.” Kreisler v. Second Ave. 7
Diner Corp. , 731 F.3d 184, 188 (2d Cir. 2013). But conclusory allegations of intent 8
to return and proximity are not enough

— in order to “satisfy the concrete

- harm 9
requirement” and to “pursue f orward

- looking, injunctive relief,” Plaintiffs must 10

establish a “material risk of future harm” that is “sufficiently imminent and 11

substantial.” TransUnion LLC v. Ramirez , 141 S. Ct. 2190, 2210 (2021)

. Plaintiffs 12

have not done that here. We thus agree with the district court that Plaintiffs lack 13
standing and affirm. We do not reach Plaintiffs’ other arguments because standing 14
is a jurisdictional requirement. 155 I. BACKGROUND 1

A. Factual Background 2

Plaintiffs Marcos Calcano, Yovanny Dominguez, Brau lio Thorne, and James 3
Murphy are visually impaired individuals who rely on b raille to read written 4

materials. 1 Defendants Swarovski North America Limited, The Art of Shaving

– 5
FL, LLC, Banana Republic, LLC, Jersey Mike’s Franchise Systems, Inc., and Kohl’s , 6

Inc

. are regional or national chains of retail stores that sell gift cards

— i.e. , pre

- paid 7

cash cards that can be used to make purchase s at Defendants’ location s

. 2 8

The complaints identically allege that each Plaintiff “telephoned 9

Defendant ’s customer service office in an attempt to purchase a store gift card from 10
the Defendant and inquired if Defendant sold store gift cards containing Braille.” 11
App’x at 101, 166, 286, 350, 416. Plaintiffs were “informed , ” however, th at 12

Defendants “ do [] not sell store gift cards containing Braille.” Id. Moreover, 13

Defendants failed to “offer any alternative auxiliary aids or services

. . . with 14

respect to [the] gift cards

. ” Id. 15

1 The following facts are taken from Plaintiffs’ amended complaints, filed with the district court prior to dismissal. In re viewing the court’s decision on a motion to dismiss for lack of standing , we accept these facts as true and draw all reasonable inferences in Plaintiffs’ favor. See Carter v. HealthPort Techs., LLC , 822 F.3d 47, 56

– 57 (2d Cir. 2016).

2 Specifically, Calcano sued Swarovski and The Art of Shaving, while Dom i n g uez, Thorne, and Murphy filed complaints , respectively, against Banana Republic, Jersey Mike’s, and Kohl’s.6 Plaintiffs thus allege that they were denied access to Defendants’ goods and 1

services, which they assert constitute s discrimination under the ADA. In 2
particular , the complaints maintain that because of “the lack of auxiliary aids ” for 3

Defendant s’ gift cards, Plaintiffs are unable to “ascertain information about the gift 4
card, like the balance, the gift card’s terms and conditions of use,” nor are they 5
“able to distinguish ” Defendants’ “ branded gift cards from others in the same 6

manner as non

- blind persons.” Id. at 102, 167, 287, 351, 417. Plaintiffs assert that 7

Defendants “failed to provide visually impaired patrons with the particular level 8

of services available to non

- disabled patrons.” Id. In addition, Plaintiffs claim that 9

the “inaccessibility of

. . . store gift cards” amounts to “access barriers” that “have 10

caused and continue to cause a denial ” of Plaintiff s’ “ full and equal access, and . . 11

. deter Plaintiff [s] on a regular basis from purchasing, accessing, and utilizing the 12
store gift cards.” Id. at 106, 171, 291, 355, 421. 13

Plaintiff s state that they live near their respective Defendant s ’ store s and 14

have been customers “on prior occasions.” Id. at 102, 167, 287, 351, 417. Plaintiffs 15
also claim that they “intend[] to immediately purchase at least one store gi ft card 16

from the Defendant [ s ] as soon as the Defendant[s] sell [] store gift cards that are 17

accessible to the blind.” Id. 187 B

. Procedural Background 1

Plaintiffs’ actions

— five out of hundreds of substantively identical lawsuits 2

filed in the Southern District of New York in late 2019

— were assigned to the same 3
district judge and have a similar procedural history. Plaintiffs filed amended 4
complaints between February and March of 2 020

. All of the amended complaints 5

assert claims under the ADA and related state and local laws, seek ing damages, 6
attorneys’ fees, and injunctive relief. 7

Defendants moved to dismiss for lack of standing and failure to state a 8

claim. See Fed. R. Civ. P. 1 2(b)(1), (6). On April 23, 2020, t he district court granted 9
Banana Republic’s motion and dismissed Dominguez’s complaint

. See Domin g uez 10
v. Banana Republic , LLC , No. 19

- cv
- 10171,

-- F. Supp. 3d

-- , 2020 WL 1950496 11
(S.D.N.Y. Apr. 23 , 2020)

. Over the next several days , the district court issued 12
separate orders granting the other Defendants’ motions , concluding that the 13
complaints “suffer[ed] from the same pitfalls as those in Domin g uez v. Banana 14
Republic .” App’x at 126, 312, 376, 538. Plaintiffs chal lenge the court’s reasoning in 15

its D omin g ue z opinion, which provided the basis for each complaint’s dismissal. 16
We therefore summarize that decision to the extent it applies to all Plaintiffs. 178 The court first found that Dominguez failed t o establish standing. See 1
Dominguez , 2020 WL 1950496, at *4. It explained that an ADA plaintiff has 2
standing to sue for injunctive relief if “it was reasonable to infer, based on the past 3
frequency of plaintiff’s visits and the proximity of defendants’ [ services] to 4
plaintiff’s home, that plaintiff intended to return to the subject location.” Id. at *3 5
(quoting Kreisler, 73 1 F.3d at 187

– 88 (alteration in original)). Emphasizing the fact

6

intensive nature of th is inquiry, t he court determined that the “al l

- too

- generic 7
complaint” did not allege “enough facts to plausibly plead that [ Domin g uez] 8

intend s to ‘return’ to the place where he encountered the professed 9

discrimination.” Id. at *4. The court t hus concluded that Domin g uez “ lack s 10
standing to pursue injunctive relief under the ADA ” because he failed “to allege 11

any non conclusory facts of a real or immediate threat of injury

. ” Id. 12

In the alternative, the district court also concluded that the ADA does not 13
require businesses to offe r braille gift cards, and thus Domin g uez failed to state a 14

claim under the ADA

. First, the court determined that “a retailer need not alter 15
the mix of goods that it sells to include accessible goods for the disabled.” Id. at 16

* 7. It found that braille gi ft cards fit into a category of “special, accessible 17
merchandise” that a plac e of public accommodation is not required to provide. Id. 189 at *6

– * 7. Second, the court concluded that gift card s are not themselves place s of 1
public accommodation because they “fit into none” of the twelve categories 2

included in the ADA’s definition of that term and are not “space[s] . . . that can 3
provide the services of a public accommodation.” Id. at * 7 . Lastly, the court noted 4
that “[a ] public accommodation can choose among various alternative [] ”auxiliary 5

aids to offer customers, and Domin g uez did not adequately plead that he explored 6
“the range of auxiliary aids and services” Banana Republic provided to the 7
visually impaired. Id. at * 10

– * 11. Finally, t he court declined to exercise 8
supplemental jurisdiction over the remaining state

- and city

- law claims. Id. at *5, 9

* 12. 10

The c ourt dismissed the amended complaints without prejudice, allowing 11

Plaintiffs fifteen days to replead. Plaintiffs did not amend their pleadings, and the 12
district court entered judgment for Defendants

. These appeals followed. 3 13

II. DISCUSSIO N 14

Plaintiffs argue that the district court erred both i n determining that 15
Plaintiffs lack standing and in finding that Plaintiffs failed to state a claim under 16

the ADA. We begin with standing because it is a “jurisdictional” requirement and 17

3 We consolidated the appeals on June 24, 2020. One of the appealed cases, Mendez v. AnnTaylor, Inc. , No. 20

- 1550, was voluntarily dismissed and severed on July 31, 2020.10 “must be assessed before reaching the merits.” Byrd v. United States , 138 S. Ct. 1
1518, 1530 (2018)

. 2

“We review de novo the district court’s decision to dismiss a complaint for 3
lack of standing . . . construing the complaint in plaintiff’s favor and accepting as 4
true all material factual allegations contained therein.” Kat z v. Donna Karan Co. , 5
872 F.3d 114, 118 (2d Cir. 2017) (cleaned up). 6

A

. Legal Principles 7
Article III of the Constitution “confines the federal judicial power to the 8

resolution of ‘ Cases ’ and ‘ Controversies. ’ ” TransUnion , 141 S. Ct. at 2203. “ For 9
there to be a case or controversy under Article III, the plaintiff must have a 10
personal stake in the case

— in other words, standing.” Id. (cleaned up). At all 11
stages of litigation, “the party invoking federal jurisdiction bears the burden of 12
establishing the elements of Article III standing.” Carter , 822 F.3d at 56 (cleaned 13
up). “[T]o establish sta nding , a plaintiff must show (i) that he suffered an injury 14
in fact that is concrete, particularized, and actual or imminent; (ii) that the injury 15

was likely caused by the defendant; and (iii) that the injury would likely be 16
redressed by judicial relief.” TransUnion , 141 S. Ct. at 2203

. A plaintiff pursuing 17
injunctive relief may not rely solely on past injur y , but also must establish that 1811 “she is likely to be harmed again in the future in a similar way.” Nicosia v. 1

Amazon.com, Inc. , 834 F.3d 220, 239 (2d Cir. 2016)

. Such “threatened injury must 2

be certainly impending to const itute injury in fact, and

. . . allegations of possible 3
future injury are not sufficient.” A m. Civ

. Liberties Union v. Clapper, 785 F.3d 787, 4
800 (2d Cir. 2015) ( cleaned up ). 5

In the ADA context, w e have held that a plaintiff seeking injunctive relief 6
has suffered an injury in fact when: “(1) the plaintiff alleged past injury under the 7
ADA; (2) it was reasonable to infer that the discriminatory treatment would 8
continue; and (3) it was reasonable to infer, based on the past frequency of 9
plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, 10
that plaintiff intended to return to the subject location.” Kreisler, 73 1 F.3d at 187

– 11

88. These considerations m ay assist courts in determining whether an alleged 12
prospective injury is sufficiently “concrete and particularized.” Lujan v. Defs. of 13
Wildlife , 504 U.S. 555, 560 (1992). 4 In particular, the focus of the third factor

— i.e. , 14
intent to return based on past visits and proximity

— is to ensure that “the risk of 15

4 In Kreisler , we held that “deterrence constitutes an injury under the ADA.” 73 1 F.3d at 188 (citing Pickern v. Holiday Quality Foods Inc. , 293 F.3d 1133, 1137

– 38 (9th Cir. 2002)). A plaintiff “need not attempt to overcome an obvious barrier” to allege an injury in fact, which in some cases could result in physical harm. Id. T his is consistent with the ADA’s remedy provision, which provides that “[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actu al notice that a person or organization . . . does not intend to comply with [Title III of the ADA’s] provisions.” 42 U.S.C. § 12188(a)( 1 ).12 harm is sufficiently imminent and substantial” to establish standing. TransUnion , 1

141 S. Ct. at 2210. Thus, the central inquiry is not whether a complaint pleads the 2
magic words that a plaintiff “ intends to return , ” but if , “examined under the 3
‘totality of all relevant facts , ’” the plaintiff plausibly alleges “a real and immediate 4
threat of future injury.” K ennedy v. Floridian Hotel, Inc. , 998 F.3d 1221, 1233 (11th 5

Cir. 20 21) (including “ definiteness of the plaintiff’s plan to return” and “frequency 6
of the plaintiff’s travel near the defendant’s business” as factors to consider in 7
assessing whether a plaintiff “ faces a real and immediate threat of future injury” 8
( cleaned up ) )

. 5 9
Although we generally accept the truth of a plaintiff’s allegations at the 10
motion to dismiss stage, the plaintiff still “bears the burden of alleging facts that 11
affirmatively and plausibly suggest that [the plaintiff] has standing to sue.” 12

C ortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l. , 790 F.3d 411, 417 (2d Cir. 13
2015) (cleaned up); see also Amidax Trading Grp. v. S.W.I.F.T. SCRL , 671 F.3d 140, 14
148 (2d Cir. 2011) (“[F]or [a plaintiff] to have standing to sue, its alleged injury in 15

5 The concurrence claims that the majority opinion has added a new “intent

- to

- return prong as a necessary element of standing,” which “erect[s] an [] additional requirement that disabled individuals must meet to have standing.” Concurrence at 3. But intent to return is neither n ew nor is it an additional requirement

— it is how our C ourt has determined whether a plaintiff has demonstrated a likelihood of future injury for injunctive relief. See supra at 1 1

– 1 2

.13 fact must be plausible.”). A ssessing plausibility is “a context

- specific task that 1
requires the reviewing court to draw on its judicial experience and common 2

sense.” Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009). We need not cre dit “a legal 3
conclusion couched as a factual allegation” or a “naked assertion devoid of further 4

factual enhancement.” Id. at 678 (cleaned up). Instead, we must refer to a 5
complaint’s “factual context” to discern whether to accept “a complaint’s 6

concluso ry statements.” Amidax Trading Grp. , 671 F.3d at 146 (quoting Iqbal , 556 7
U.S. at 686). 8

B

. Analysis 9

Plaintiffs challenge the district court’s conclusion that their amended 10
complaints d o not plausibly demonstrate their intent to return to Defendants’ 11

stor es if braille gift cards were available

. Plaintiffs claim that the district court 12

should have accepted as true the allegation s that each “Plaintiff has been a 13

customer at Defendant’s [business] on prior occasions and intends to immediately 14
purchase at least one store gift card from the Defendant as soon as the Defendant 15
sells store gift car d s that are accessible to the blind

. ” App’x at 102, 167, 287, 351, 16

417

. Plaintiffs also rely on their all egations that they reside in “ close proximity ” to 1714 Defendant s ’ store s

. Id. at 103, 168, 2 88 , 3 52 , 41 8 . We agree with the district court 1
that these allegations fail to establish standing. 2

First , Plaintiffs’ conclusory invocations of the fact or s we found relevant in 3

Kreisler are insufficient to establish standing

. In Kreisler, we identified several 4
categories of information that could be helpful in determining whether “it was 5
reasonable to infer . . . that plaintiff intended to return to the subject location.” 731 6

F.3d at 188. Kreisler, t he plaintiff in that case , “live[d] w ithin several blocks of the 7
Diner,” “passe[d] by it three to four times a week,” and “frequent[ed] diners in his 8
neighborhood often.” Id. at 186, 188. T hese facts “ show [ed] a plausible intention 9

to return to the Diner , ” id. at 188, which established a “s ufficiently imminent and 10

substantial” “risk of harm

. ” TransUnion , 141 S. Ct. at 2210. 11

Here, each Plaintiff plead s the identical assertion that he reside s “in close 12
proximity to” Defendants’ businesse s, ha s been a “ customer at Defendant ’s 13

[ location ] on prior occasions,” and “intend s to immediately purchase at least one 14
store gift card f ro m the Defendant as soon as the Defendant sell s store gift cards 15

that are accessible to the blind.” App’x at 102

– 03, 167

– 68, 287

– 88, 351

– 52 , 417

– 18

. 16

These allegations parrot the court’s language in Kreisler, see 731 F.3d at 188, a nd 17

Plaintiffs characterize them as factual assertion s that we must presume as true. 1815 But these assertions are nothing more than “legal conclusion[s] couched as

. . . 1
factual allegat ion[s].” Papasan v. Allain , 478 U.S. 265, 286 (1986); see also Baur v. 2

Veneman , 352 F.3d 625, 63 6

– 37 (2d Cir. 2003) ( explaining that “ [w] hile the standard 3
for reviewing standing at the pleading stage is lenient,” a plaintiff may not “ rely 4
solely on conclusory allegations of injury or ask the court to draw unwarranted 5
inferences in order to find standing” ). Plaintiffs’ threadbare assertions are 6
conclusory and do not raise a reasonable inference of injury. 7

Second, Plaintiffs’ assertions of proximity and prior visits are vague , lacking 8
in support, and do not plausibly establish that Plaintiff s “intended to return to the 9
subject location.” Kreisl er, 73 1 F.3d at 188. 10

As an initial matter, the district court did not err in dismissing Murphy’s 11
amended complaint for lack of standing. Murphy alleges that he “resides on W. 12

23rd Street, New York, NY, on the same street and less than a block from [ the 13
Kohl’s] retail store at 271 W. 23rd St, New York, NY.” App’x at 417. But there is 14
no Kohl’s store anywhere in Manhattan, let alone at that address. 6 Murphy thus 15
lacks standing. 16

6 Murphy concedes that Kohl’s n ever operated a store at that address , describing this as “an error . . . regarding the location.” Appellants ’ Reply Br. at 10 n.3.16 As to the remaining Plaintiff s , o nly Calcano

— in his suit against The Art of 1
Shaving

— provides an accurate address for a Defendant’s business , stating that he 2

lives “in Bronx, NY, and close to Defendant’s retail store located at 10 Columbus 3

Circle, New York, NY.” Id. at 351

. 7 But depending on where Calcano lives in the 4

Bro nx, which the complaint does not say, that address could be up to an hour away 5
from The Art of Shaving store at Columbus Circle

. 8 Standing on its own, this bare 6
allegation of so

- called “proximity” hardly supports an inference that Calcano , who 7

is blind, would “immediately” make this inter

- borough trip just to purchase braille 8
gift cards from The Art of Shaving at Columbus Circle

. 9

Nor do Plaintiffs’ vague assertions that they have been customer s at 10

Defendant s ’ businesses “ on prior occasions , ” see, e.g. , id. at 102, nudge their claims 11
“across the line from conceivable to plausible , ” Iqbal , 556 U.S. at 680 (citation 12
omitted)

. Calcano, Dominguez, and Thorne fail to provide any details about their 13
past visits or the frequency of such visits . They do n ot specify which stores they 14
visited or what items they purchased. And they do not say why they want to 15

7 Neither Calcano nor Domin g uez provides an address for Swarovski and Banana Republic, respectively , stating only that they “reside[] within close pro ximity to at least one of Defendant’s physical locations.” App’x at 103, 168. And Thorne alleges only that the Jersey Mike’s he wishes to visit is located in the Bronx.

8 See Google Maps, https://www.google.com/maps/ (using Bronx, NY as the starting point and 10 Columbus Circle, New York, NY as the destination).17 purchase braille gift cards

— for their own use or as gifts

— so urgently that they 1

intend to do so “ immediately

. . . as soon as the Defendant[s] sell[] s tore gift cards 2

that are accessible to the blind.” App’x at 102, 167, 287, 351. Without such basic 3
information, Plaintiffs cannot possibly show that they have suffered an injury that 4

is “concrete and particularized

. ” 9 Lujan , 504 U.S. at 5 60. 5

Third, we cannot ignore the broader context of Plaintiffs’ transparent cut

6

and

- paste and fill

- in

- the

- blank pleadings

. The four Plaintiffs before us filed 7
eighty

- one of over 200 essentially carbon

- copy complaints between October and 8

December 2019. All of the complaints use identical language to state the same 9
conclusory allegations. Of the roughly 6,300 words in Calcano’s complaint against 10
Swarovski, for example, only 26 words

— consisting of party names, dates, and 11

Defendants’ office addresses and states o f incorporation

— are different from 12
Dominguez’s complaint against Banana Republic. They even contain the same 13

9 To the extent Plaintiffs fault the district court for declining to hold a factual hearing, there was no need to do so when, as here, the court granted leav e to amend

. See Warth v. Seldin , 422 U.S. 490 , 501 (1975) (“ [I] t is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing

. ”). Moreover, Plaintiffs refused the district court’s invitation to “cure the deficiencies articulated” in the orders by “alleging additional facts about the interactions” they had with Defendants. App’x at 128, 211, 31 5, 379, 541.18 typos. See, e.g. , App’x at 105, 169, 289, 353, 419 (same missing space between the 1
period and “Gift” in Paragraph 35). 2

T his backdrop of Plaintiff s’ Mad

- Libs

- style complaints further confirms the 3
implausibility of their claims of injury. As noted above, Murphy asserts that he 4

would return to a Kohl’s that doesn’t exist. See s upra at 1 5

. Dominguez seeks to 5
go back to Banana Republic for its food

. 10 Thorne doesn’t even allege where he 6
lives, making an assessment of proximity to a Jersey Mike’s impossible. 11 Calcano 7
plans to travel from somewhere in the Bronx to Columbus Circle for a shaving 8
suppl y gift card

. And all of these plans depend on the availability of braille gift 9

cards even though Plaintiffs never explain why they want those cards in the first 10
place. Although we might excuse a stray technical error or even credit an odd 11
allegation standing alone as an idio syncratic preference

— to do so here in light of 12

the cumulative implausibility of Plaintiffs’ allegations would be burying our heads 13

in the sand. “ [ J ] udicial experience and common sense” suggest that the errors, 14

10 In the district court, Dominguez repeatedly stated that Banana Republic’s “primary business is selling food.” See Mem. of Law in Opp. to Def.’s Motion to Dismiss at 3, 15, 16, 20, Dominguez v. Banana Republic, LLC , No. 19

- cv
- 10171

.

11 The concurrence would fill in this blank by purporting to take judicial notice of Thorne’s alleged residence in Chelsea from the allegations in another lawsuit. Concurrence at 8 n.3 . This questionable invocation of judicial notice only highlights the def iciencies in Thorne’s complaint. S ee Fed. R. Evid. 201(b) (a court may take judicial notice of a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”).19 oddities, and omissions in the complaints are a result of their mass production, 1
and they render each Plaintiff’s cookie

- cutter assertion of standing implausible. 2
Iqbal , 556 U.S. at 679

. 3
In sum, Plaintiffs have offered only “naked assertions” of intent to return to 4
Defendants’ stores if they offer b raille gift cards. I d

. at 678. This reliance on a mere 5
“profession of an intent to return to the places” previously visited is “not enough” 6

t o establish standing for prospective relief. Lujan , 504 U.S. at 564 (cleaned up). 7
Without any factual support for their conclusory claims, Plaintiffs have failed to 8
establish a “real and immediate threat of repeated injury.” Kreisler, 731 F.3d at 187 9
(c itation omitted). We thus agree with the district court that Plaintiffs failed to 10
establish standing. 12 11

I II

. CONCLUSION 12

For the reasons described above, the district court did not err in dismissing 13
Plaintiffs’ amended complaints for lack of standin g. We also find that the district 14

court acted within its discretion in declining to exercise supplemental jurisdiction 15

12 In light of our determination on standin g, we do not reach Plaintiffs’ arguments as to whether their complaints state an ADA claim

. See Steel Co. v. Citizens for a Better Env’t , 523 U.S. 83, 101

– 02 (1998)

.20 over Plaintiffs’ state and local law claims. See Giordano v. City of New York , 274 F.3d 1
740, 754 (2d Cir. 2001). We thus affirm the district court’s judgment s

. 21 L OHIER , Circuit Judge , concurring in the judgment : 1
In the instant appeals, plaintiffs

- appellants Marcos Calcano, Yovanny 2
Dominguez, Braulio Thorne, and James Murphy

— legally blind individuals who 3
require aids such as Braille to read written materials

— claim that they have been 4
denied meaningful use of the gi ft cards sold by defendants

- appellees Swarovski 5
North America Limited (“Swarovski”), Banana Republic, LLC (“Banana 6
Republic”), Jersey Mike’s Franchise Systems, Inc. (“Jersey Mike’s”), The Art of 7
Shaving

– FL, LLC (“Art of Shaving”), and Kohl’s, Inc. (“Kohl’s ”), because these 8
gift cards are not embossed with Braille. The District Court dismissed all five 9
actions for lack of standing and, alternatively, for failure to state a claim under 10
Title III of the Americans with Disabilities Act (ADA)

. My colleagues in the 11
majority affirm on the ground that the plaintiffs lack standing. I disagree. I f 12

Title III of the A DA is to mean anything at all, then the disabled p laintiffs in 13

these actions ( except the p laintiff in Kohl’s ) surely have standing to sue

. Because 14

I a gree with the District Court ’s alternative ruling that the complaints fail to state 15

a cause of action under the ADA , however, I concur in the judgment

. 16
Let me first address standing, followed by the merits of the ADA claims as 17
alleged in the plaintiffs’ complaints. 182 A. Standing 1

In Camarillo v. Carrols Corp. , 518 F.3d 153 (2d Cir. 2008), and Kreisler v. 2
Second Avenue Diner Corp. , 731 F.3d 184 (2d Cir. 2013) , w e held that a plaintiff 3
has adequately alleged standing “ [ i ] n the ADA context

. . . where (1) the plaintiff 4
alleged past injury under the ADA; (2) it was reasonable to infer that the 5
discriminatory treatment would continue; and (3) it was reasonable to i nfer, 6
based on the past frequency of plaintiff’s visits and the proximity of defendants’ 7
[establishment] to plaintiff’s home, that plaintiff intended to return to the subject 8

location.” Kreisler , 731 F.3d at 187

– 88

. Until today, w e have never suggested 9

t hat these three prongs are necessary for Article III standing in the ADA context

. 10

Instead, w e have held that satisfying these prongs had been sufficient in the past

. 11
In other words, they serve as a helpful guide in determining whether the 12
plaintiffs have standing in this case , not as elements for standing in ADA cases

. 13
In my view, contrary to the majority’s, a plaintiff in an ADA case is 14
ultimately required to satisfy only the three well

- estab lished requirements for 15
Article III standing : (1) an injury in fact that is concrete and particularized and 16
actual or imminent, not conjectural or hypothetical; (2) the injury is fairly 17
traceable to the challenged action of the defendant; and (3) it is lik ely that the 183 injury will be redressed by a favorable decision. See Lujan v. Defenders of 1

Wildlife , 504 U.S. 555, 560

– 61 (1992). At most, t he factors we identified in 2

Kreisler and Camarillo shed light on whether a plaintiff seeking injunctive relief 3
has shown “a likelihood that he will be injured in the future.” Shain v. Ellison , 4
356 F.3d 211, 215 (2d Cir. 2004) ( quotation marks and alteration omitted ); see City 5
of Los Angeles v. Lyons , 461 U.S. 95 , 105 (1983) . T hey do not impose any 6

additional standing requirements in ADA cases. 1 7
Unfortunately, t he majority opinion has ignor e d this

. Interpreting the 8

intent

- to

- return prong as a necessary element of standing, it hold s that the 9
plaintiffs in this case lack standing to pursue their ADA claims

. At a practical 10
level, doing so creates more (needless) problems than it solves in the ADA 11

context. But setting aside the p ractical implications of the majority’s holding, I 12

write separately to emphasize that there is no basis to erect an y additional 13
requirement that disabled individuals must meet to have standing to sue under 14

Title III of the ADA. Let me explain why

. 15

1 Importantly, both Kreisler and Camarillo involved claims under Title III of the ADA, which prevents a private individual from recovering monetary damages. 42 U.S.C. § 12188(a)(1). Neither decision sheds light on the requirements for Article III standing in cases where a plaintiff seeks monetar y damages under Title II of the ADA, which prohibits discrimination by a public entity against a qualified individual with a disability in the benefits or activities of the public entity.4 First, a bit of history. We borrowed the “intent

- to

- return” analysis from 1

the Ninth Circuit ’s decision in P ickern v. Holiday Quality Foods, Inc. , 293 F.3d 2
1133 (9th Cir. 2002)

. See Camarillo , 518 F.3d at 158 (citing Pickern ). Unlike my 3
colleagues in the majority, however, t he Ninth Circuit explicitly declined to 4
apply that analysis strictly and dispositively to conclude that a disabled 5
individual has no standing to even claim a violation of the ADA. T he Ninth 6

Circuit instead concluded that “a disabled individual who is currently deterred 7
from patroniz ing a public accommodation due to a defendant’s failure to comply 8
with the ADA has suffered ‘actual injury.’ Similarly, a plaintiff who is 9
threatened with harm in the future because of existing or imminently threatened 10

non

- compliance with the ADA suffers ‘imminent injury.’” Pickern , 293 F.3d at 11

1138. 12

Second, a s Pickern points out, a disabled individual has standing if they 13

are deterred from returning to a noncompliant facility , without reference to the 14
plaintiff’s intent to return

. Since Pickern , t he Ninth Circuit has reaffirmed this 15

view in Chapman v. Pier 1 Imports (U.S.) Inc. , 631 F.3d 939 (9th Cir. 2011) , 16
holding that “an ADA plaintiff can establish standing to sue for inju nctive relief . 17
. . by demonstrating deterrence.” Id. at 9 44 ; s ee also id. at 950 (discussing 185 Pickern and noting that “ we have Article III jurisdiction to entertain requests for 1
injunctive relief both to halt the deterrent effect of a noncompliant 2
accommodation and to prevent imminent ‘discrimination,’ as defined by the 3
ADA, against a disabled individual who plans to visit a noncompliant 4
accommodation in the future.”). The practical reality is that i n too many cases 5

individuals with di sabilities realize that they cannot return to an inaccessible 6
facility (a store, a restaurant, etc.). There is no need for a disabled person who 7

ha s previously attempted to access such a facility to show an intent to return if 8
doing so would be futile or even to show that she intended do so if she were able 9

to access it

. In no other area of civil rights law do we impose a similar 10
requirement to establish standing

. Congress recognized as much when , for 11
example, it refused to require people with disabilities to engage in “futile 12
gesture[s]” in its remedy provision. 42 U.S.C. § 12188(a)(1). The majority seems 13

to agree with this in theory , Maj ority Op. at 1 1 n.4 , although its reasoning today 14
suggests otherwise

. 15
With that context in place, I submit that all of the plaintiffs except the 16
plaintiff in Kohl’s 2 established that they have standing

. As we said in Kreisler , 17

2 The plaintiff in Kohl’s alleges that he “resides on W. 23rd Street, New York, NY, on the same street and less than a block from Defendant’s retail store at 271 W. 23rd St, New6 one way a plaintiff can establish standing is by alleging facts that lead to a 1

reasonable inference that “ plaintiff intended to return to the subject location .” 2

Kreisler , 731 F.3d at 188

. In assessing a plausible intent to return in the ADA 3

context, we have considered fact ors such as, for example, the frequency of a 4
plaintiff’s visits to a defendant’s store, the proximity of a plaintiff’s residence or 5
work to the store in question, and a plaintiff’s demonstrated travel habits. See 6

i d. ; see also Bernstein v. City of New York , 621 F. App’x 56, 58

– 59 (2d Cir. 2015). 7

Kee ping these factors in mind, and e ven assuming that plaintiffs must 8
alleg e an intent to return , the complaints in Swarovski , Banana Republic , Jersey 9

Mike’s , and Art of Shaving have adequately alleged such an intent . They allege 10

that (1) each plaintiff “ha s been a customer at [ his respective defendant’ s store or 11

restaurant] on prior occasions,” (2) each plaintiff “reside s within close proximity 12
to at least one of [ his respective defendant’ s ] physical locations,” and (3) each 13
plaintiff “ intend s to immediately purchase at least one store gift card from [his 14
respective defendant] as soon as [ that defendant ] sell s store gift cards that are 15

York, NY.” Joint App’x 417. At oral argument, however, counsel conceded that this allegation was mist aken, and that no Kohl’s store exists at that address or anywhere in Manhattan

. I therefore agree with the majority that the plaintiff in Kohl’s relies on an inaccuracy about his proximity to Kohl’s that negates injury

- in

- fact , and I therefore also agree with the majority that we should affirm the dismissal of Kohl’s for lack of standing

.7 accessible to the blind and utilize it at [ that defendan t’ s business ].” Joint App’x 1

102

– 03, 167

– 68, 287, 351, 4 17. Because the defendants have advanced a facial 2
challenge to the plaintiffs’ standing, we accept as true all material facts alleged in 3

the complaint s and draw all reasonable inferences in the plaintiffs’ favor. See 4

Cortlandt St. Recovery Corp. v. Hellas Telecomm

. , S. à .r.l

. , 790 F.3d 411, 417 (2d 5
Cir. 2015)

. Accordingly, unless factually contradicted (as in Kohl’s , as discussed), 6

we accept as true the plaintiffs’ allegations that they live near at least one of the 7

defendants’ businesses

. 8
To start, all the plaintiffs alleg e that they have previously visited the store 9

or restaurant at issue and that it was inaccessible

. Such an allegation makes it 10
plausible to infer that they intend to visit again

. T he plaintiffs also allege that 11
they live sufficiently close to the facilities they claim violated their rights under 12
the ADA that it is plausible they would visit again. Calcano and Dominguez , for 13

exam ple, allege that they live in the Bronx , which , in my view , is close enough to 14
establish their proximity to various Swarovski and Banana Republic stores 15

located in the Bronx and Manhattan. See Camarillo , 518 F.3d at 155, 158 (noting 16
that plaintiff’s residence in Catskill, New York is proximate to defendants’ 17
restaurants in Catskill, Hudson, Cairo, and Kingston, New York). Likewise, 188 Calcano’s home in the Bron x and Thorne’s in “New York, NY” 3 are all located in 1

the same me tropolitan area and are thus close enough to the Art of Shaving store 2

in Manhattan and to Jersey Mike’s restaurant in the Bronx , respectively , to make 3
it plausible that they will shop there again

. 4
Taken together, these allegations “tend to show ” in each case that , but for 5

the defendants’ misconduct , “ the plaintiff will likely frequent the area where the 6
public accommodation is located and is interested in what it has to offer.” 7
Hirsch v. Campaniello Soho, Inc. , No. 14

- cv
- 5097, 201 5 WL 678662, at *3 8
(S.D.N.Y. Feb. 17, 2015) ; s ee Friends of the Earth, Inc. v. Laidlaw Env’t Servs. , 528 9

U.S. 167, 1 84 (2000). 10
Consider Thorne’s assertion that he would return to Jersey Mike’s in t he 11

Bronx

. T he majority contends it is “impossible” to assess Thorne’s proximity to 12

the restaurant because he “doesn’t even allege where he lives.” Majority Op. at 13

18

. To the contrary, Thorne specifically alleges that he lives in New York, New 14

York (Manhattan) , which , as every New York er knows, borders the Bronx . Joint 15

3 Although Thorne does not specify where in “New York, NY” he lives, Joint App’x 223, in a separate ADA action he alleged that he lived less than a block from a Boston Market restaurant at 271 West 23rd St., New York, NY , s ee Thorne v. Boston Mkt. Corp. , 469 F. Supp. 3d 130, 133 (S.D.N.Y. 2020). I would take judicial notice of this uncontested factual allegation. See Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000).9 App’x 223. To the extent that the majority demands a more specific address , to 1

show how close he lives to Jersey Mike’s , it confuses Rule 12(b)(6) ’s plausibility 2

stand ard for a “ probability requirement. ” Ashcroft v. Iqbal , 556 U.S. 662, 678 3
(2009) (noting that “[t]he plausibility standard is not akin to a ‘probability 4
requirement [.] ’”) . Neither our Court nor the Supreme Court has “require [d] the 5
pleading of specific evidence or extra facts beyond what is needed to make [a] 6
claim plausible.” Arista Records, LLC v. Doe 3 , 604 F.3d 110, 120

– 21 (2d Cir. 7
2010). 8
The majority’s error continues in Art of Shaving , where it finds it 9
implausible that Calcano might travel “up to an hour” to purchase shaving 10
supplies. Majority Op. at 16. But if Calcano sought products sold only in that 11
store, it is hardly implausible that he might again travel to attend his store of 12

choice. See Camar illo , 518 F.3d at 155, 158

. And the majority cannot reconcile its 13
observation that such a trip would be implausible with Camarillo , where we 14

found it altogether plausible that the plaintiff would travel approximately 28 15

miles (from Catskill to Kingston, New York) to patronize a fast

- food restaurant. 16

See id

. 17
The majority’s approach to the core allegations in these cases is improper. 1810 Article III contain s no ne of the requirement s that the majority imposes in this 1

case. In def ense of its approach, the majority resorts to “judicial experience and 2
common sense.” Majority Op. a t 13 (quoting Iqbal , 556 U.S. at 679 ). I agree that 3

“ j udicial experience and common sense” can help us assess the plausibility of 4
factual allegations , including allegations relevant to standing

. B ut t here is no 5
basis to doubt the sincerity of plaintiffs’ assertions, other than by reference to 6

one’s own subjective tastes or preferences

. In second

- guessing the plaintiffs’ 7
preferences, my colleagues go to o far. Describing with evident distaste the 8
plaintiffs’ history of litigation and status as repeat filers of ADA suits, they rely 9

not so much on experience or common sense as suspicion about the plaintiffs’ 10
motives for suing

. T he majority believes that t he plaintiffs’ litigation history or 11

motiv e for bringing these lawsuits weakens their claim s of future injury , strips 12

them of their standing to sue , or otherwise bears on whether their claims meet 13
the requirements of Article III standing

. 4 What the majority derides as “burying 14
our heads in the sand,” Majority Op. at 18, is in fact an exercise in judicial 15

4 T he majority’s reference to the “cumulative implausibility” of the p laintiffs’ allegations is especially curious . Majority Op. at 18

. These are different plaintiffs who filed different complaints against different defendants. That we heard these appeals in tandem does not mean that we can now evaluate the plausibility of the p laintiffs’ complaints at the group level rather than individu ally.11 restraint. 1
More broadly , the majority’s reasoning has nothing to do with Article III , 2

and its its view runs headlong into the text, history , and purpose of the ADA

. 3

“ I n enacting the ADA, Congress recognized that we live in a ‘ society [that] has 4
tended to isolate and segregate individuals with disabilities. ’ ” Nanni v. 5
Aberdeen Marketplace, Inc. , 878 F.3d 447, 45 3 (4th Cir. 2017) (quot ing 42 U.S.C. 6
§ 121 01). “ Such individuals ‘ continually encounter various forms of 7
discrimination, including outright intentional exclusion ’ as a result of various 8

barriers to access .” Id. (quoting 42 U.S.C. § 121 01). It is against th is backdrop of 9

discr imination and ostracism that “ Congress concluded that there was a 10
compelling need for a clear and comprehensive national mandate to eliminate” 11
all kinds of discrimination against disabled individuals, including “outright 12

intentional exclusion” and “failure to make modifications to existing facilities 13
and practices.” PGA Tour, Inc. v. Martin , 532 U.S. 661, 675 (2001) ( quotation 14

marks omitted )

. P rivate litigation is one l i nchpin in achieving broad compliance 15

with the ADA. For this reason , among others , Title III of the ADA does not limit 16

claims to “bona fide” customers 5 (although it is worth recalling that each of the 17

5 T he majority deem s the plaintiffs’ a llegations of future injury “implausible” largely because so many nearly identical cases have been filed in district court s in our C ircuit

.12 plaintiffs here is indisputably blind) , and the statute instead guarantees the right 1

to be “ free from disability discrimination” regardless of “[the plaintiff’s] motive.” 2
Houston v. Marod Supermarkets, Inc. , 733 F.3d 1323, 1332

– 34 (11th Cir. 2013). 3
Applying the correct approach

— and assuming again for the sake of 4
argument that Kreisler requires that an ADA plaintiff plausibly allege a past 5
injury at a particular location , coupled with an intent to return to that location , in 6

order to demonstrate a likelihood of future injury as a basis for equitable relief

— 7

t he complaints here plausibly allege both the plaintiffs ’ past injuries at particular 8
noncompliant facilities and their intent to return to th ose facilities . The plaintiffs 9
have accordingly established their standing to su e for equitable relief

. 10

W hether the complaints state a claim under Title III or instead expose the 11

p laintiffs ’ case s as less than meritorious is what I turn to next. 12

B. Failure to S tate a Claim Under the A DA 13

“ To state a claim under Title III, [a plaintiff] must allege (1) that she is 14
disabled within the meaning of the ADA; (2) that defendants own, lease, or 15
operate a place of public accommodation; and (3) that defendants discriminated 16

Majority Op. at 19. Not even the defendants advance d this as their c entral position

. Nor am I aware of any prior example where this Court has rejected otherwise well

pleaded allegations at the motion to dismiss stage because they parrot allegations in unrelated cases.13 against her by denying her a full and equal opportunity to enjoy the services 1
defendants provide. ” Camarillo , 518 F.3d at 156. O nly the last element is in 2
dispute

. As to that element, Title III provides that “[n]o individual shall be 3
discriminated against on the basis of disabil ity in the full and equal enjoyment of 4
the goods, services, facilities, privileges, advantages, or accommodations of any 5
place of public accommodation

. ” 42 U.S.C. § 12182(a). Th e statute further 6

defines d iscrimination to include , among other things : 7
a failure to take such steps as may be necessary to ensure that no 8 individual with a disability is excluded, denied services, 9 segregated or otherwise treated differently than other individuals 10 because of the absence of auxiliary aids and services, unless t he 11 entity can demonstrate that taking such steps would 12 fundamentally alter the nature of the good, service, facility, 13 privilege, advantage, or accommodation being offered or would 14 result in an undue burden [.] 15

Id. § 12182(b)(2)(A) (iii)

. R egulations promulg ated under these provisions by the 16

U nited States Department of Justice ( “ DOJ ” ) provide that “ [a] public 17
accommodation shall furnish appropriate auxiliary aids and services where 18
necessary to ensure effective communication with individuals with disabilities.” 19
28 C.F.R. § 36.303(c) (1)

. 20

To discern whether these provision s require the defendants to provide gift 21

cards with Braille, we must first determine how to conceptualize gift cards. As 2214 relevant here , there are three possible options that are not mutually exclusive. 1
First, gift cards may be deemed “goods” that are sold in places of public 2

accommodation. As explained in more detail below, the ADA does not regulate 3

what types of good and services should be made available , just as a bookstore 4

ne ed not sell Brailled versions of every book it sells. Accordingly, under this 5
view of gift cards, the defendants need not provide Brailled gift cards. Second, 6
gift cards may be considered a means by which customers may access other 7
goods and services sol d by the defendants , in which case the ADA

— which 8
prohibits a place of public accommodation from discriminating on the basis of 9
disability when providing access to its goods and services

— would extend to gift 10

cards

. Third, gift cards themselves may qualify as “place [ s ] of public 11

accommodation , ” in which case they must be accessible to blind individuals 12
under 42 U.S.C. § 12812(a). 13

The D istrict C ourt adopted the first view , while rejecting the second and 14

third views

. T he D istrict C ourt properly dete rmined that gift cards are goods in 15

themselves and that they are not places of public accommodation

. In my view, 16

however, the District Court erred when it opted not to consider gift cards as a 17
means by which to access goods and services , from which it con cluded that they 1815 are exempt from the ADA’s accessibility requirement. Nevertheless, I would 1

affirm the D istrict C ourt’s dismissal of the complaints because the plaintiffs do 2
not plausibly and adequately allege that the defendants denied them adequate 3

auxi liary aids and services by failing to provide Brailled gift cards. 4

1. Gift Cards as Means o f Access t o Goods o r Services 5 6 T he plaintiffs argue that, even if gift cards themselves were not places of 7
public accommodation, they would still fall within the ambit of Title III because 8
they are means by which the plaintiffs would access or acquire the defendants’ 9
other goods and serv ices. I agree. 10
To begin with, Title III of the ADA prohibit s a place of public 11
accommodation from discriminating on the basis of disability when providing 12

access to its goods and services , but not to regulate what types of goods and 13

services should be made available. See Weyer v. Twentieth Century Fox Film 14
Corp. , 198 F.3d 1104, 1115 (9th Cir. 2000) ( noting that the ADA “does not require 15
provision of different goods or services, just nondiscriminatory enjoyment of 16
those that are provided”) ; McNeil v. T ime Ins. Co. , 205 F.3d 179, 18 8 (5th Cir. 17
2000)

. And the DOJ’s implementing regulations likewise state that the ADA 18
“does not require a public accommodation to alter its inventory to include 1916 accessible or special goods that are designed for, or facilitate use by, individuals 1

with disabilities.” 28 C.F.R. § 36.307(a) ; id. pt. 36, a pp

. C ( “The purpose of the 2
ADA’s public accommodation s requirements is to ensure accessibility to the 3
goods offered by a public accommodation, not to alter the nature or mix of go ods 4
that the public accommodation has typically provided.” ). 5

T he district court applied the above logic to hold that , because gift cards 6
are goods in themselves, the ADA does not require the defendants to modify and 7
provide gift cards in accessible forms t o blind individuals , just as a bookstore 8

need not ensure that the books it sells are available in both Braille and standard 9
print. See id. § 36.307(c) (singling out “Brailled versions of books” as a specific 10
example of accessible or special goods that public accommodations need not 11
ordinarily make available). Indeed , while the ADA itself does not define 12
“good s ,” gift cards

— items in the defe ndants’ inventory to be sold

— clearly 13
comport with an ordinary and common meaning of that term

. See Goods , 14
Oxford English Dictionary (3d ed. 2014) (defining “goods” as “ t hings that are 15
produced for sale; commodities and manufactured items to be bought and sold; 16

merchandise, wares” and “ economic assets which have a tangible, physical 17

form ” )

. 1817 While I may agree that gift cards are types of goods, that does not mean 1

tha t gift cards may not also be a means by which customers access other goods 2

and services within the meaning of Title III

. Gift cards , types of prepaid debit 3

cards, are a purchase mechanism that the defendants provide for the 4
convenience of customers so that they can purchase other goods and services 5
offered by the defendants. Althou gh gift cards may not be generally accepted as 6
a “universal medium” of exchange, Am. Council of the Blind v. Paulson , 525 F.3d 7
1256, 1268 (D.C. Cir. 2008) (quotation marks omitted) , they need not be as 8
fungible as cash, debit card s , or other money instruments to qualify as means of 9
access to the defendants’ goods and services

. Moreover, it is irrelevant that the 10
plaintiffs have other means of accessing the defendant’s goods and services , such 11

as cash or credit cards , because there may be privacy, s ecurity, or budgetary 12
reasons for using gift cards rather than those other payment methods

. In 13
arriving at this conclusion, I am guided by the principle that , “[a]s a remedial 14
statute, the ADA must be broadly construed to effectuate its purpose of 15
providi ng a clear and comprehensive national mandate for the elimination of 16
discrimination against individuals with disabilities

. ” Noel v. N.Y.C. Taxi and 17

Limousine Comm’n , 687 F.3d 63, 68 (2d Cir. 2012) (quotation marks omitted)

. 1818 Because gift cards qualify as m eans of access to goods and services offered 1
by the defendants and therefore fall within the ambit of Title III, p ublic 2
accommodations must ensure that, with respect to the use of gift cards to access 3
other goods and services , no blind individual is “excluded, denied services, 4
segregated or otherwise treated differently than other individuals because of the 5
absence of auxiliary aids and services, unless the entity can demonstrate that 6
taking such steps would fundamentally alter the nature of the good, service, 7
facility, privilege, advantage, or accommodation being offered or would result in 8

an undue burden.” 42 U.S.C. § 12182(b)(2)(A) (iii)

. 9

2. Failure To Provide Auxiliary Aids a nd Services 10 11 Because the ADA allows for the defendants to provide auxiliary aids and 12
services of their choice, the plaintiffs must adequately allege that Braille is the 13
only type of ADA

- compliant auxiliary aid or service in this context or that the 14

defendants do not o ffer any auxiliary aid or service , including Braille

. And 15

because the plaintiffs did neither, the dismissal of their complaints was proper. 16
Thus, although I believe that all but one of the plaintiffs have standing and that 1719 gift cards fall within the ambi t of the ADA, I would affirm the dismissal of the 1
complaints. 2

First , that gift cards qualify as means of access to goods and services does 3

not mean that the lack of Braille on gift cards necessarily constitutes an ADA 4

violation , since t h ere may be other auxiliary aids and services available to assist 5
blind individuals with using gift cards

. Indeed, t he statutory definition of 6
auxiliary aids and services includes “qualified readers, taped texts, or other 7
effective methods of making visually deliver ed materials available to individuals 8
with visual impairments” and “other similar services and actions.” Id. § 9
12103(1) ; see also 28 C.F.R. § 36.303(b)(2) (listing the same, plus “audio 10
recordings,” “Brailled materials and displays,” “accessible electroni c and 11
information technology,” and more). Braille is thus just one among many types 12
of auxiliary aids and services

. 13

T he ADA leaves it up to merchants to decide what particular auxiliary aids 14

and services they would offer to disabled individuals , given the context

15
dependent nature of what constitutes effective communication

. See id. § 16

36.303 (c)(1)(ii) ( “ A public accommodation should consult with individuals with 17
disabilities whenever possible to determine what type of auxiliary aid i s needed 1820 to ensure effective communication , but t he ultimate decision as to what measures 1
to take rests with the public accommodation, provided that the method chosen 2
results in effective communication.”)

. For example, “a clothing boutique would 3

not be re quired to have Brailled price tags if sales personnel provide price 4
information orally upon request.” 28 C.F.R. pt. 36, a pp

. C; see also Camarillo , 5

518 F.3d at 157 (explaining that restaurants are not required to provide large 6
print menus so long as they ensure the menu is effectively communicated)

. 7
Accordingly, “[n]othing in the ADA itself or its implementing regulations 8

dictates that a disabled individual must be provided with the type of auxiliary 9
aid or service he requests

. ” Burkhart v. Washington Metro. Area Transit Auth. , 10
112 F.3d 1207, 1213 (D.C. Cir. 1997) (emphasis in original)

. 11

Based on the above, t he D istrict C ourt held that alleging the absence of 12

Braille on gift cards is not tantamount to alleging that the defendants failed to 13

p rovide any auxiliary aids and services

. In asking this Court to reverse that 14
holding , the plaintiffs argue that (1) Braille is the only type of ADA

- compliant 15
auxiliary aid or service in a gift card context , and (2) even if that were not the 16

case , the defe ndants did not offer any other auxiliary aids and services

. I am not 17
persuaded by these arguments , as they are neither adequately nor plausibly 1821 pleaded. 1
With respect to the first argument, the complaints are devoid of any 2
plausible allegation as to why other types of auxiliary aids and services

— such as 3

store clerks’ assistance

— would not permit the plaintiffs to enjoy the benefits of 4
gift cards

. T he plaintiffs respond that only Braille, among all potential auxiliary 5

aids and services in this context, would satisfy federal and state laws mandating 6
that gift cards contain written disclosures such as : an expiration date ; 7
information regarding a dormancy, inactivity, or service fee; a toll

- free number 8

and a website to obtain information about the card ; whether the card is subject to 9
a replacement fee ; and other terms and conditions

. See , e.g. , 15 U.S.C. § 1693 l

10
1(b)(3), (c)(2)(B); 12 C.F.R. § 205.20(c)(4), (d)(2), (e)(3); N.Y. Gen. Bus. Law § 396

- 11

i (3)

. T he se consumer protection laws do not interact with the ADA in such a way 12
that the required disclosures must necessarily be made in Braille , in addition to 13
regular print. Rather, these laws collectively appear to require that the 14
defendants effectively commu nicate the information required to be disclosed via 15

an adequate auxiliary aid or service of their choice . Here, the plaintiffs do not 16
allege that other auxiliary aids and services, such as employee assistance, are 17
ineffective means of communicating the re quired information to blind 1822 individuals. The plaintiffs have failed to make the necessary allegations here. 1
Alternatively, the plaintiffs argue that, even if Braille were not the only 2
type of ADA

- compliant auxiliary aid or service , the defendants do not offer other 3

aids or services that might enable blind customers to use gift cards. Although, in 4
my view, such an allegation might have save d the complaints, the plaintiffs do 5

not adequately allege this anywhere , and we cannot plausibly infer from the 6
allegations that they do make that the plaintiffs were denied other types of 7
auxiliary aid s or service s

. See , e.g. , Joint App’x 416 (alleging that de fendant’s 8
employee “ did not offer any alternative auxiliary aids or services ” on the phone 9
when informing the plaintiff that Braille gift cards were unavailable (emphasis 10
added)). For instance, the complaint s could have alleged that the plaintiffs asked 11

t he defendants’ employees about the availability of other auxiliary aids or 12
services, or that the plaintiffs took other steps to find out what other auxiliary 13
aids or services might have be en available. But none of these are alleged

. 6 14

As a fallback, plaintiffs allege that, “[u]pon information and belief, [the 15
defendants] do[] not offer auxiliary aids with respect to the gift cards.” Joint 16

6 For substantially the same reason, I would reject the plaintiffs’ assertion that they were denied full enjoyment of the gift cards from their home s because of the lack of Braille. The plaintiffs do not allege that they asked the defendants what kinds of auxiliary aids or services would be available for their desired use online or over the phone

.23 App’x 102, 167, 286, 350, 417. This conclusory allegation is not sufficient to 1

overcome the short coming just identified

. “A litigant cannot merely plop ‘upon 2
information and belief’ in front of a conclusory allegation and thereby render it 3

non

- conclusory. Those magic words will only make otherwise unsupported 4
claims plausible when the facts are pecu liarly within the possession and control 5

of the defendant or where the belief is based on factual information that makes 6
the inference of culpability plausible.” Citizens United v. Schneiderman , 882 7

F.3d 374, 384

– 85 (2d Cir. 2018) (quotation marks omitted ) ; see also Am idax 8
Trading Grp. v. S.W.I.F.T

. SCR L , 671 F.3d 140, 146 (2d Cir. 2011) (“ It is well 9
established that we need not credit a complaint ’ s conclusory statements without 10

reference to its factual context.” (quotation marks omitted) )

. Here, the plaintiffs 11
could have simply inquired a bit further to discern the availability of other 12
auxiliary aids and services, the fact of which is not peculiarly within the 13
possession and control of the defendants. 7 14

15

7 Because , in my view, the plaintiffs’ federal law claims were properly dismissed, I do not fault the D istrict C ourt for refusing to exercise supplemental jurisdiction over the plaintiffs’ state and local law claims without prejudice to refiling in state court

. See 28 U.S.C. § 1367(c)(3); Valencia ex rel. Franco v. Lee , 316 F.3d 299, 305 (2 d Cir. 2003).24 CONCLUSION 1

To summarize, I would conclude that , contrary to the majority’s holding, 2

a ll plaintiffs other than the Kohl’s plaintiff have established standing; that g ift 3

cards are not only goods but also means of access to goods and services under 4

Title III of the ADA , such that places of public accommodation must provide 5
adequate auxiliary aid s and service s to ensure that blind customers can make 6
meaningful use of gift cards, unless doing so would fundamentally alter the 7
nature of goods and services provided or would r esult in an undue burden ; and 8

t he plaintiffs have not adequately alleged that the defendants failed to provide 9

them with ADA

- compliant auxiliary aids and services in connection with their 10
desired use of gift cards. 11

For these reasons I respectfully concur i n the judgment. 12