Opinion
19-CV-9922 (VEC)
06-03-2022
JAMES MURPHY, ON BEHALF OF HIMSELF AND ALL OTHER PERSONS SIMILARLY SITUATED, Plaintiff, v. PETSMART, INC., Defendant.
ORDER
VALERIE CAPRONI, UNITED STATES DISTRICT JUDGE:
WHEREAS on October 25, 2019, Plaintiff sued Petsmart, Inc., alleging that its failure to sell store gift cards to consumers that contain writing in Braille violates Plaintiff's rights under the Americans with Disability Act (“ADA”) and New York state law, Dkt. 1;
WHEREAS on March 26, 2020, Plaintiff filed an amended complaint, Dkt. 18;
WHEREAS on April 16, 2020, Defendant moved to dismiss the amended complaint, contending that Plaintiff lacks standing and has failed to state a claim, Dkt. 20;
WHEREAS the motion to dismiss is fully briefed;
WHEREAS on July 10, 2020, the Court stayed the case pending the Second Circuit's resolution of a consolidated appeal of orders granting motions to dismiss in similar matters, Dkt. 27;
WHEREAS on June 2, 2022, the Second Circuit decided Calcano v. Swarovski et al., 201552, holding that “Plaintiffs' conclusory, boilerplate allegations fail to establish standing, ” see Opinion, 20-1552 at 4 (2d Cir. June 2, 2020); and
WHEREAS the allegations in the complaint in this action likely fail to establish standing, as they are just as, if not more, conclusory as the allegations in the complaints at issue in the Second Circuit's Calcano opinion.
IT IS HEREBY ORDERED that Plaintiff may file an amended complaint by no later than five days after the mandate is issued in Calcano v. Swarovski et al., 20-1552. If Plaintiff does not file an amended complaint by the deadline, then the Court will sua sponte dismiss Plaintiff's amended complaint pursuant to Calcano. If Plaintiff does amend her complaint by the deadline, the Court will dismiss the pending motion to dismiss (Dkt. 20) as moot and Defendant must answer, move, or otherwise respond to the amended complaint by no later than 21 days after the it is filed.
SO ORDERED.