Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`…………………………………………………….x
`JOSE MEJIA,
` Plaintiff,
` -v- No. 1:22-CV-03667-LTS
`HIGH BREW COFFEE INC.,
` Defendant.
`
`…………………………………………………….x
`
`MEMORANDUM ORDER
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`Plaintiff Jose Mejia (“Plaintiff”) brings this putative class action against High
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`Brew Coffee, Inc. (“Defendant”) asserting violations of Title III (“Title III”) of the Americans
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`with Disabilities Act of 1990, 42 U.S.C. section 12101 et seq. (the “ADA”), and the New York
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`City Human Rights Law, N.Y.C. Administrative Code sections 8-101 et seq. (“NYCHRL”).
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`(Docket entry no. 1 (the “Complaint” or “Compl.”).) Count I of the Complaint seeks injunctive
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`relief under the ADA pertaining to Defendant’s website. Count II seeks damages under the
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`NYCHRL. Count III seeks declaratory relief with respect to the ADA and NYCHRL violations
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`alleged in Counts I and II.
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`Defendant has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to
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`dismiss the Complaint in its entirety, for failure to state a claim. The Court has jurisdiction of
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`Plaintiff’s federal claims pursuant to 28 U.S.C. section 1331. The Court has considered carefully
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`the parties’ submissions and, for the following reasons, Defendant’s motion to dismiss the
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`Complaint is granted.
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`1
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`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 2 of 15
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`BACKGROUND
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`The following allegations are taken from the Complaint and are presumed true for
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`the purposes of this motion. Plaintiff is a legally blind individual who the parties agree is
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`disabled within the meaning of the ADA. (Compl. ¶ 1.) Defendant sells coffee solely through
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`an online platform, highbrewcoffee.com (the “Website”). (Id.)
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`On April 10 and on August 10, 2022, Plaintiff attempted to purchase a twelve-
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`pack of Double Espresso flavored coffee on the Website, but he was unsuccessful both times.
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`(Id. ¶¶ 1-2.) Due to Plaintiff’s disability, he uses screen-reading software to navigate online. (Id.
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`¶ 1.) He was unable to use this software to make a purchase on the Website, however, because
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`problems with the website’s coding rendered the screen-reader unusable. (Id. ¶¶ 2-4.) In the
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`Complaint, Plaintiff lists several accessibility issues that arose when he attempted to use his
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`screen-reader software with the website. Plaintiff’s screen-reading software was unable to: read
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`when an item has been added to the “shopping cart,” (id. ¶ 4(a)), indicate which products were
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`added (id. ¶ 4(b)), read full details about, and descriptions of, the products (id. ¶ 4(c)), or
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`accurately describe images of products on the Website (id. ¶ 4(d)). When used with the Website,
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`the screen reader also fails to read some of the Website’s text (id. ¶ 4(e)), does not highlight all
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`the text it is reading (id. ¶ 4(f)), reads information that Plaintiff has not selected for reading (id.
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`¶ 4(g)), reads certain text out of order (id. ¶ 4(h)), and reads text that is not visible on the Website
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`(id. ¶ 4(i)). These errors “impede Plaintiff’s ability to navigate the [W]ebsite as a sighted New
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`York customer would.” (Id.) Plaintiff asserts that “the barriers continue to exist as of the date of
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`the filing of this amended complaint.” (Id. ¶ 5.) Plaintiff intends to complete his purchase if and
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`when the Website’s accessibility issues are resolved. (Id. ¶ 8.)
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`2
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`DISCUSSION
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`To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must
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`contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
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`face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 570 (2007)). This requirement is satisfied when the factual content in the complaint
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`“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. (citation omitted). A complaint that contains only “naked assertions” or “a
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`formulaic recitation of the elements of a cause of action” does not suffice. Twombly, 550 U.S. at
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`555. “In deciding a Rule 12(b)(6) motion, a court assumes the truth of the facts asserted in the
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`complaint and draws all reasonable inferences from those facts in favor of the plaintiff.” Sara
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`Designs, Inc. v. A Classic Time Watch Co. Inc., 234 F. Supp. 3d 548, 554 (S.D.N.Y. 2017)
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`(citing Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009)).
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`Title III of the ADA dictates that “[n]o individual shall be discriminated against
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`on the basis of disability in the full and equal enjoyment of the goods, services, facilities,
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`privileges, advantages, or accommodations of any place of public accommodation by any person
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`who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C.A.
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`§ 12182(a) (Westlaw through P.L. 118-82). To state a claim for relief under Title III of the
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`ADA, a plaintiff “must allege (1) that [he] is disabled within the meaning of the ADA; (2) that
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`defendants own, lease, or operate a place of public accommodation; and (3) that defendants
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`discriminated against [him] by denying [him] a full and equal opportunity to enjoy the services
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`defendants provide.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008). Defendant
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`does not contest the first or third elements of Plaintiff’s claim, arguing instead that the Website is
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`not a place of public accommodation, and therefore is not covered by the ADA.
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`3
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`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 4 of 15
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`“The [ADA] does not contain a definition of the term ‘place of public
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`accommodation.’” Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 388 (E.D.N.Y.
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`2017). Instead, it provides that private entities are to be considered public accommodations if
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`their operations affect commerce, and they fall within one of twelve enumerated categories,
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`expressed in the statute as non-exclusive lists of different types of enterprises. These categories
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`are:
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`(A) an inn, hotel, motel, or other place of lodging, except for an
`establishment located within a building that contains not more than five
`rooms for rent or hire and that is actually occupied by the proprietor of
`such establishment as the residence of such proprietor;
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`(B) a restaurant, bar, or other establishment serving food or drink;
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`(C) a motion picture house, theater, concert hall, stadium, or other place of
`exhibition or entertainment;
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`(D) an auditorium, convention center, lecture hall, or other place of public
`gathering;
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`(E) a bakery, grocery store, clothing store, hardware store, shopping
`center, or other sales or rental establishment;
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`(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel
`service, shoe repair service, funeral parlor, gas station, office of an
`accountant or lawyer, pharmacy, insurance office, professional office of a
`health care provider, hospital, or other service establishment;
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`(G) a terminal, depot, or other station used for specified public
`transportation;
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`(H) a museum, library, gallery, or other place of public display or
`collection;
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`(I) a park, zoo, amusement park, or other place of recreation;
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`(J) a nursery, elementary, secondary, undergraduate, or postgraduate
`private school, or other place of education;
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`(K) a day care center, senior citizen center, homeless shelter, food bank,
`adoption agency, or other social service center establishment; and
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`(L) a gymnasium, health spa, bowling alley, golf course, or other place of
`exercise or recreation.
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`42. U.S.C.A. § 12181(7)(A)-(L) (Westlaw through P.L. 118-82).
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`A majority of circuit courts – the Third, Sixth, Seventh, Ninth, and Eleventh –
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`have found that a website constitutes a place of public accommodation only if it has a connection
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`to a physical location (i.e., a “brick and mortar” store or establishment). See Ford v. Schering-
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`Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998) (“The plain meaning of Title III is that a public
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`accommodation is a place. . . . This is in keeping with the host of examples of public
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`accommodations provided by the ADA, all of which refer to places.”), accord Peoples v.
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`Discover Fin. Servs., Inc., 387 F. App’x 179, 183 (3d Cir. 2010); see also Parker v. Metro. Life
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`Ins. Co., 121 F.3d 1006, 1011-12 (6th Cir. 1997) (“The clear connotation of the words in
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`§ 12181(7) is that a public accommodation is a physical place.”); Weyer v. Twentieth Century
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`Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (“The principle of noscitur a socis requires
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`that the term, “place of public accommodation,” be interpreted within the context of the
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`accompanying words, and this context suggests that some connection between the good or
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`service complained of and an actual physical space is required.”); Gil v. Winn-Dixie Stores, Inc.,
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`993 F.3d 1266, 1277 (11th Cir. 2021) (finding that the “unambiguous and clear” language of the
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`statute only “describes twelve types of locations that are tangible, physical spaces” and thus
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`limits public accommodations “to actual, physical places” and does not encompass websites
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`(internal citations omitted)), vacated on reh’g on other grounds, 21 F.4th 775 (2021). The First
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`and Seventh Circuits have adopted the minority position, that no “physical nexus” is required for
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`a private entity, when engaged in commerce, to fall under the ADA’s ambit. See Carparts
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`Distrib. Ctr. v. Auto. Wholesaler’s Ass’n of New Eng., 37 F.3d 12, 19 (1st Cir. 1994) (“By
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`5
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`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 6 of 15
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`including ‘travel service’ among the list of services considered ‘public accommodations,’
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`Congress clearly contemplated that ‘service establishments’ include providers of services which
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`do not require a person to physical enter an actual physical structure.”); Doe v. Mut. of Omaha
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`Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“The core meaning of [section 302(a) of Title III of
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`the ADA], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist’s
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`office, travel agency, theater, Web site, or other facility (whether in physical space or in
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`electronic space) that is open to the public cannot exclude disabled persons from entering the
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`facility and, once in, from using the facility in the same way that the non-disabled do.” (internal
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`citation omitted)).
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`The Second Circuit has not squarely addressed the question of whether a website,
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`absent a connection to a physical location, constitutes a place of public accommodation. It came
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`closest in Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d Cir. 1999), which held that, because
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`insurance offices are listed as a place of public accommodation, the ADA “guarantee[s] . . . more
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`than mere physical access” to the facility but also prohibits discrimination in the sale of related
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`“goods” and “services” provided by that place of public accommodation, including insurance
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`policies. Id. at 31-33 (citing 42 U.S.C. §§ 12181(7)(F), 12181(a)). Plaintiff urges a broader
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`reading of Pallozzi that, he contends, resolves the central question in this case. (Pl. Mem. at 6
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`(“The central holding of Pallozzi is that businesses that transact with the public are places of
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`public accommodations as defined by Title III of the ADA regardless of whether they are
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`conducted physically in a store or through another medium unrelated to a physical location.”).)
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`Plaintiff points to other district courts in this Circuit that have applied Pallozzi in this manner and
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`ruled that stand-alone websites qualify as public accommodations under the ADA. See, e.g.,
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`Andrews, 268 F. Supp. 3d at 393 (“This district court, as it must, adopts the Second Circuit’s
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`6
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`sensible approach [from Pallozzi] to the ADA. It is unambiguous that under Title III of the
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`ADA, [defendant’s website] is a place of public accommodation.”); Del-Orden v. Bonobos, No.
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`17-CV-2744-PAE, 2017 WL 6547902, at *5 (S.D.N.Y. Dec. 20, 2017) (finding that a
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`commercial website is a public accommodation within the meaning of the ADA based in part
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`upon the consensus of the “four district courts in this Circuit to address the issue” all drawing on
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`Pallozzi to find that Title III extends to such platforms); Thorne v. Formula 1 Motorsports, Inc.,
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`No. 19-CV-1077-JPO, 2019 WL 6916098, at *2 (S.D.N.Y. Dec. 19, 2019); Chalas v. Barlean’s
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`Organic Oils, LLC., No. 22-CV-04178-CM, 2022 WL 17156838, at *15 (S.D.N.Y. Nov. 22,
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`2022) (“[T]he best guess, in light of Pallozzi, is that our Circuit, were it to consider the issue,
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`would come down on the side of the First and Seventh Circuits, and conclude that a website can
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`be a ‘place of public accommodation[.]’”); Chalas v. Pork King Good, 673 F. Supp. 3d 339, 343
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`(S.D.N.Y. 2023) (observing that, “[w]hile Pallozzi did not specifically decide the question of
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`whether Title III applied to the goods and services of a website without a connection to a
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`physical place,” most district courts in this circuit have found that commercial websites quality).
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`The Court respectfully disagrees with these courts’ broad reading of Pallozzi as
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`reaching internet-only businesses as places of public accommodation. What the Pallozzi court
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`decided was not whether a standalone website constitutes a place of accommodation but, rather,
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`whether, if a physical premises of a business constitutes a place of public accommodation, goods
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`and services sold from those premises are subject to the equal access mandate of the ADA. See
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`198 F.3d at 32-33 (“We believe that an entity covered by Title III is not only obligated by the
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`statute to provide persons with physical access but is also prohibited from refusing to sell them
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`its merchandise by reason of discrimination of their disability.”). Several courts have adopted
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`this narrower reading of Pallozzi. See Martinez v. MyLife.com, Inc., No. 21-CV-4779-BMC,
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 8 of 15
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`2021 WL 5052745, at *3 (E.D.N.Y. Nov. 1, 2021) (“[In Pallozi], the Second Circuit accepted as
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`true that the business in question was a place of ‘public accommodation,’ but it did not decide
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`the issue – the issue before it was whether the covered category of ‘insurance offices’ included
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`‘insurance companies.’ . . . Therefore, [neither] Pallozzi – nor its progeny – mandate or suggest
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`any conclusion as to whether a stand-alone website, such as the one at issue here, is a place of
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`accommodation.”). In Winegard v. Newsday LLC, 556 F. Supp. 3d 173 (E.D.N.Y. 2021), Judge
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`Komitee conducted an extended analysis of Pallozzi, distinguishing the question of whether a
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`website is a place of accommodation from the Pallozzi question – whether an insurance policy is
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`a good or service of an entity already determined to be covered:
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`The holding did not turn on the definition of “place of public
`accommodation” in Section 12181(7). There was no dispute that an
`“insurance office” qualifies as such, given that it is listed explicitly among
`the specific examples in Section 12181(7)(F). [Pallozzi,] 198 F.3d at 32
`(“We start with the fact that Title III specifies an ‘insurance office’ as a
`‘public accommodation.’”). Having accepted that an insurance office is a
`“public accommodation,” the Court of Appeals turned to the application of
`Section 12182(a) (“No individual shall be discriminated against on the
`basis of disability in the full and equal enjoyment of the goods, services,
`facilities, privileges, advantages, or accommodations of any place of
`public accommodation ....”).
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`The Court of Appeals analysis thus focused on whether an insurance
`policy is a “good’ or “service” of an insurance office. Unsurprisingly, the
`court concluded that the ‘full and equal enjoyment’ of an insurer’s ‘goods
`and services’ extends to the consumption of insurance policies. The panel
`held that “Title III does regulate the sale of insurance policies in insurance
`offices.” Id. at 33 (emphasis added). The physical place, per Pallozzi, is a
`condition precedent; once that condition is satisfied, the goods and
`services sold by that place of public accommodation are swept within the
`ADA’s remit.
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`But those goods and services are not covered by the ADA unless and until
`the “place of public accommodation” test is satisfied.
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 9 of 15
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`Id. at 180-81. “At most, therefore, Pallozzi supports the conclusion that websites are swept up in
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`Title III when they offer the same ‘goods and services’ as the business’s brick-and-mortar
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`operation.” Id. The Court concurs in this view of the limits of Pallozzi’s implications.
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`In the absence of definitive Second Circuit guidance, the Court must interpret the
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`text and structure of the statute. “Statutory analysis necessarily begins with the plain meaning of
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`a law’s text and, absent ambiguity, will generally end there.” Bustamante v. Napolitano, 582
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`F.3d 403, 406 (2d Cir. 2009) (internal alterations and citation omitted). Courts must consider
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`“the ordinary or natural meaning of the words chosen by Congress, as well as the placement and
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`purpose of those words in the statutory scheme.” United States v. Aguilar, 585 F.3d 652, 657
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`(2d Cir. 2009). In the antidiscrimination context, the phrase “a place of public accommodation”
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`has long referred to businesses with public-facing physical facilities. See Winegard, 556 F.
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`Supp. 3d at 175-76 (explaining the historical use of “public accommodation” as describing “the
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`particular subset of businesses that had heightened duties of service – often relating to lodging
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`and transportation – because of the public-facing nature of their physical facilities”). This
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`context is consistent with a review of the fifty entities listed in Section 12181(7):
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`Title III provides an extensive list of “public accommodations” in
`§ 12181(7), including such a wide variety of things as an inn, a restaurant,
`a theater, an auditorium, a bakery, a laundromat, a depot, a museum, a
`zoo, a nursery, a day care center, and a gymnasium. All the items on this
`list, however, have something in common. They are actual, physical
`places where goods or services are open to the public, and places where
`the public gets those services.
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`Weyer, 198 F.3d at 1114. 1
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`1
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`“Department of Justice (‘DOJ’) regulations issued pursuant to the ADA similarly define a
`place of public accommodation as a ‘facility,’ which is in turn defined as ‘all or any
`portion of buildings structures, sites, complexes, equipment, rolling stock . . . or other
`real or personal property, including the site where the building, property, structure, or
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`The residual clauses at the end of each list counsel towards a similar conclusion.
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`Each list in the definition is characterized as being comprised of either “establishment[s],” 42
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`U.S.C. §§ 12181(7) (A, B, E, F, K), “place[s],” id. § 12181(7) (A, C, D, H, I, J, L), or
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`“station[s],” id. § 12181(7)(G)). By listing 50 terms in section 12181(7) that almost all refer to
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`physical places, Congress indicated an intent to limit public accommodations to entities with
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`physical locations. Weyer, 198 F.3d at 1114. Arguably, “[t]he lone exception is ‘travel service,’
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`which is included in the list of ‘service establishment[s].’” Suvino, 2017 WL 3834777, at *6
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`(citing 42 U.S.C. § 12181(7)(F)). Courts have disagreed on whether “travel service” should be
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`interpreted as being limited to a physical location. Carparts, 37 F.3d at 19 (holding “travel
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`service” is not limited to a physical location: “Congress clearly contemplated that ‘service
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`establishments’ would include providers of services which do not require a person to physically
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`enter an actual physical structure. Many travel services conduct business by telephone or
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`correspondence without requiring their customers to enter an office in order to obtain their
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`services.”); cf. Parker, 121 F.3d at 1014 (“Rather than suggesting that Title III includes within its
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`purview entities other than physical places, it is likely that Congress simply had no better term
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`than ‘service’ to describe an office where travel agents provide travel services and a place where
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`shoes are repaired.”). Indeed, there are travel services which operate out of physical locations,
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`and they existed in 1990 when the ADA was enacted and continue to exist today.
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`Some courts have noted that ‘travel service’ does not invariably refer to a
`physical space, though there is no suggestion in the statute (or in logic)
`that a travel service must be a virtual operation. Read in context, ‘travel
`service’ appears to refer to travel agencies and to facilities – such as
`American Express counters – offering traveler’s cheques, currency-
`exchange services and the like. These businesses commonly operated out
`
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`equipment is located.’” Suvino v. Time Warner Cable, Inc., No. 16-CV-7046-LTS, 2017
`WL 3834777, at *6 (S.D.N.Y. Aug. 31, 2017) (quoting 28 C.F.R. § 36.104).
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`of physical facilities when the ADA was adopted, and still do (albeit in
`lesser numbers.)
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`Winegard, 556 F. Supp. 3d at 177 n.1 (citing Liberty Travel: Our Story, Liberty Travel (“Liberty
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`opened its first travel agent storefront in 1951, and continues to offer locations throughout the
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`United States”), https://www.libertytravel.com/about [https://perma.cc/JH7H-VMHF] (last
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`visited September 30, 2024)); see also https://www.aaa.com/diamonds/$
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`[https://perma.cc/58WL-ST8N] (AAA provides trip planning services and advertises that
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`customers may “Call or Visit a AAA Travel Agent Today!” with physical offices in New York,
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`New Jersey, and four other states) (last visited September 30, 2024). Thus, every term in section
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`12181(7) references entities that operate out of brick-and-mortar locations.2
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`Ejusdem generis likewise supports the view that the general clauses in section
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`12181(7) such as “any other service establishment” should be confined to public-facing physical
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`locations. Ejusdem generis counsels that general clauses are to be limited by the specific clauses
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`that precede them. Pfizer, Inc. v. U.S. Dept. of Health & Hum. Servs., 42 F.4th 67, 76 (2d Cir.
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`2022) (“Ejusdem generis refers to the understanding that ‘[w]here general words follow specific
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`words in a statutory enumeration, the general words are construed to embrace only objects
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`similar in nature to those objects enumerated by the preceding specific words.’” (quoting Circuit
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`City Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001))). Applying ejusdem generis, the
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`2
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`The statutory interpretation canon, noscitur a sociis, supports the conclusion that
`Congress intended “travel service” to be limited to a physical place. Noscitur a sociis
`instructs that a word may be influenced by the words which surround it. See Freeman v.
`Quicken Loans, Inc., 566 U.S. 624, 634-35 (2012) (“[T]hat meaning is confirmed by the
`‘commonsense canon of noscitur a sociis — which counsels that a word is given more
`precise content by the neighboring words with which it is associated.’” (quoting United
`States v. Williams, 553 U.S. 285, 294 (2008))). The 49 other entities referenced in
`section 12181(7) are clearly physical locations and, because there are travel services that
`operate out of physical locations, this Court concludes that Congress intended to restrict
`its reference to “travel services” to such services that operate from physical locations.
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`MEJIA MTD
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`SEPTEMBER 30, 2024
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`category “any other service establishment” embraces only entities similar in nature to those
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`entities preceding it in section 12181(7). These entities include, inter alia, “a laundromat,” an
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`“office of an accountant or lawyer,” “a bakery,” and a “travel service.” 42 U.S.C.A.
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`§ 12181(7)(F) (Westlaw through P.L. 118-82). As demonstrated above, all of these entities
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`operate in physical places. Therefore, ejusdem generis indicates that the statute was only
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`intended to encompass “service establishments” tied to a physical location, and thus a standalone
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`website cannot be considered a “service establishment” within the meaning of section 12181(7)
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`because it lacks the necessary physical nexus.
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`Additionally, a standalone website should not be considered a “place of public
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`accommodation” because section 12181(7) does not explicitly address businesses without a
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`physical location, such as mail order merchandise and television shopping channels, despite
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`numerous applicable business models in existence at the time the statute was written. See
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`Winegard, 556 F. Supp. 3d at 177-78; 3 see also Stoutenborough v. Nat’l Football League, 59
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`F.3d 580, 583 (6th Cir. 1995) (finding a televised broadcast of “blacked-out” home football
`
`games did not involve a place of public accommodation because, “although a game is played in a
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`‘place of public accommodation’ and may be viewed on television in another ‘place of public
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`accommodation,’ that does not suffice.”). Thus, it should not be inferred that Congress intended
`
`3
`
`
`“The Sears Roebuck catalog, for example, dated to 1888. See History of the Sears
`Catalog, Sears Archives, (“In 1888, Richard Sears first used a printed mailer to advertise
`watches and jewelry . . . . The time was right for mail order merchandise.”); see also An
`Inside Look at an Outdoor Icon, L.L. Bean (L.L.’s circulars evolved into a catalog by
`1927); How America Fell in and out of Love with J. Crew, CNN (J. Crew ‘relaunched’ as
`a catalog-only retailer in 1983); ‘8 CDs for a Penny’ Company Files for Bankruptcy,
`NPR (Columbia House started selling vinyl records via mail order in 1955); Don’t Judge
`the Book-of-the-Month Club by Its Cover, Smithsonian Magazine (Book-of-the-Month-
`Club began its subscription service in 1926); QVC.com (television shopping channel's
`first broadcast was in 1986); History of As Seen on TV, As Seen on TV (first ‘As-Seen-
`on-TV’ infomercial aired in the mid-1950s).”
`
`MEJIA MTD
`
`SEPTEMBER 30, 2024
`
`12
`
`

`

`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 13 of 15
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`“places of public accommodation” to include websites — a newly developed business model —
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`when the text of the statute excludes analogous business models by imposing a physical location
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`requirement for an entity to be considered a “place of public accommodation.”
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`For these reasons, the Court finds that a stand-alone website is not a place of
`
`public accommodation under Title III of the ADA. Plaintiff thus fails to state a claim on which
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`relief may be granted under the ADA. Because Plaintiff fails to state a claim under the ADA,
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`Count III’s request for declaratory relief is also dismissed.
`
`Remaining State Claims
`
`Plaintiff’s complaint also asserts claims under the NYCHRL. A district court
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`may decline to exercise supplemental jurisdiction of state law claims when it “has dismissed all
`
`claims over which it has original jurisdiction.” 28 U.S.C.A. § 1367(c)(3) (Westlaw through P.L.
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`118-82). Generally, “when the federal-law claims have dropped out of the lawsuit in its early
`
`stages and only state-law claims remain, the federal court should decline the exercise of
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`jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Having dismissed
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`the federal claims of which the Court has original jurisdiction, the Court declines to exercise its
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`supplemental jurisdiction over any state law claims Plaintiff may be asserting. See Kolari v.
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`New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367
`
`‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances
`
`in which district courts can refuse its exercise.’” (quoting City of Chicago v. Int’l Coll. Of
`
`Surgeons, 522 U.S. 156, 173 (1997))); Madison v. CVS, No. 22-CV-4221-LTS, 2022 WL
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`17793254, at *3 (S.D.N.Y. Dec. 19, 2022). Because all of Plaintiff’s federal claims are
`
`dismissed, this Court declines to exercise supplemental jurisdiction of Plaintiff’s state and local
`
`law claims.
`
`MEJIA MTD
`
`SEPTEMBER 30, 2024
`
`13
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`

`

`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 14 of 15
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`Leave to Amend
`
`This Court denies Plaintiff’s request for leave to amend the Complaint. Rule
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`15(a) of the Federal Rules of Civil Procedure provides that leave to amend should be freely
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`granted when justice so requires. FED. R. CIV. P. 15(a). While granting or denying such leave is
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`within the discretion of the district court, see Reisner v. Gen. Motors Corp., 511 F. Supp. 1167,
`
`1171 (S.D.N.Y. 1981), leave to amend generally will be granted unless: (1) there is evidence of
`
`undue delay, bad faith, dilatory motive, or repeated failures to cure deficiencies by amendments
`
`previously allowed; (2) allowing amendment would cause undue prejudice to the opposing party;
`
`or (3) the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). “A
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`proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss”
`
`pursuant to Federal Rule of Civil Procedure 12(b)(6). Oneida Indian Nation of New York v. City
`
`of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003) (citation omitted). Thus, “[l]eave to amend may be
`
`denied on grounds of futility if the proposed amendment fails to state a legally cognizable claim
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`or fails to raise triable issues of fact.” AEP Energy Servs. Gas Holding Co. v. Bank of Am.,
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`N.A., 626 F.3d 699, 726 (2d Cir. 2010) (citation omitted). Because Plaintiff fails to state a
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`legally cognizable claim under the ADA, leave to amend is denied.
`
`MEJIA MTD
`
`SEPTEMBER 30, 2024
`
`14
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`

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`Case 1:22-cv-03667-LTS Document 33 Filed 09/30/24 Page 15 of 15
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`CONCLUSION
`
`For the reasons explained above, Defendant’s motion to dismiss the Complaint is
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`granted in its entirety. This Memorandum Opinion and Order resolves docket entry no. 25. The
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`Clerk of Court is respectfully directed to enter judgment accordingly and close this case.
`
`
`
` SO ORDERED.
`
`Dated: New York, New York
` September 30, 2024
` /s/ Laura Taylor Swain
` LAURA TAYLOR SWAIN
`Chief United States District Judge
`
`
`
`
`MEJIA MTD
`
`SEPTEMBER 30, 2024
`
`15
`
`