Opinion
22-CV-7597 (VEC)
11-28-2022
VALERIE DICKS, on behalf of herself and all others similarly situated, Plaintiff, v. BENGALS & BANDITS, LLC, Defendant.
ORDER
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE
WHEREAS on September 9, 2022, Plaintiff sued Bengals & Bandits, LLC, alleging that its failure to make its website accessible to visually impaired persons violates the Americans with Disability Act (“ADA”), the New York State Human Rights Law, and the New York City Human Rights Law, Dkt. 4;
WHEREAS Defendant filed an answer to the Complaint on November 1, 2022, see Dkt. 12;
WHEREAS to establish constitutional standing, a plaintiff must adequately allege (1) a concrete, particularized, actual, or imminent injury-in-fact; (2) a causal connection between the injury and the conduct complained of such that the injury is “fairly traceable to the challenged action of the defendant;” and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision from the Court, Lujan v. Defs. of Wildlife, 504 U.S. 555, 576 (1992) (internal quotation marks omitted);
WHEREAS the Court may raise the question of standing sua sponte because standing is a threshold matter of justiciability, and if a plaintiff lacks standing to sue, the Court has no choice but to dismiss the plaintiff's claim for lack of subject-matter jurisdiction, see Thompson v. Cnty. of Franklin, 15 F.3d 245, 248 (2d Cir. 1994); Cent. States SE & SW Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005);
WHEREAS a plaintiff bringing a claim pursuant to the ADA has standing to sue for injunctive relief if “(1) the plaintiff allege[s] past injury under the ADA; (2) it [is] reasonable to infer that the discriminatory treatment [will] continue; and (3) it [is] reasonable to infer, based on the past frequency of plaintiff's visits and the proximity of [defendant's business] to plaintiff's home, that plaintiff intend[s] to return to the subject location,” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013); a plaintiff must plausibly allege “a real and immediate threat of future injury” for his or her complaint to meet the third prong, Calcano v. Swarovski et al., 36 F.4th 68, 75 (2d Cir. 2022) (citation omitted);
WHEREAS in Calcano, the Second Circuit held that “Plaintiffs' conclusory, boilerplate allegations” that they were injured by Defendants' failure to accommodate visually impaired plaintiffs “fail to establish standing,” id. at 71; and
WHEREAS the allegations in the Complaint in this action likely fail adequately to allege standing, as they are at least as conclusory as the allegations in the complaints at issue in Calcano.
IT IS HEREBY ORDERED that, by no later than Monday, December 5, 2022, Plaintiff must make a motion to file an amended complaint that adequately alleges standing or show cause as to why the case should not be dismissed for lack of standing.
SO ORDERED.