Aquino v. SAG AFTRA
MEMORANDUM & ORDER granting 17 Motion to Dismiss for Failure to State a Claim; granting 17 Motion to Dismiss for Lack of Jurisdiction; granting 22 Motion to Strike; For the foregoing reasons, Defendants' motion to strike (Docket Entry 21) is GRANTED and Plaintiff's Sur-Reply (Docket Entry 20) is STRICKEN. Additionally, Defendants' motion to dismiss (Docket Entry 17) is GRANTED. As set forth above, Plaintiff's claims dismissed for lack of standing are DISMISSED WITH OUT PREJUDICE and Plaintiff's remaining Title II and Title III claims are DISMISSED WITH PREJUDICE. Given Plaintiff's pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff and mark this case CLOSED. So Ordered by Judge Joanna Seybert on 3/7/2017. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DARREN DIONE AQUINO,
-againstSAG AFTRA, the Screen Actors
Guild-American Federation of Television
and Radio Artist, and all its Affiliates
& Associates, ADAM MOORE, SAG AFTRA
Diversity in his official capacity,
THE SAG AWARDS, JANE DOE AND JOHN DOE,
Entertainment Union, Casting Agents,
Affiliates and Associates, and
JEN COYNE-HOERLE, Awards Coordinator
SAG AWARDS in her official capacity,
MEMORANDUM & ORDER
Darren Dione Aquino, pro se
574 Junard Blvd.
West Hempstead, NY 11552
Peter D. DeChiara, Esq.
Kate Montgomery Swearengen, Esq.
Cohen, Weiss and Simon
330 West 42nd Street, 25th Floor
New York, NY 10036
SEYBERT, District Judge:
Plaintiff Darren Dione Aquino (“Plaintiff”) commenced
this action asserting claims under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. §§ 12111 et. seq.
Currently pending before
the Court are: (1) defendants SAG-AFTRA (“SAG”), the SAG Awards,
Adam Moore (“Moore”), and Jen Coyne-Hoerle’s (“Coyne-Hoerle” and,
Complaint, (Docket Entry 17), and (2) Defendants’ motion to strike,
(Docket Entry 22).
For the following reasons, Defendants’ motions
Plaintiff has been diagnosed with processing dyslexia,
and suffers from a severe limp due to poliomyelitis, a deformed
right knee, club left foot, scoliosis, asthma, a partially occluded
coronary artery, angina, and osteoarthritis.
Entry 6, at 5.)
(Am. Compl., Docket
In 2000, Plaintiff joined SAG, an actors and
entertainers union that seeks to “provid[e] competitive wages and
safe, excellent working conditions for [its] members.” (Am. Compl.
¶¶ 4, 7.)
Plaintiff is currently a SAG member.
(Am. Compl. ¶ 8.)
In 2000, Plaintiff appeared in television programs and
films. (Am. Compl. ¶ 9.) Plaintiff’s casting agent, Grant Wilfley
television and film projects.
(Am. Compl. ¶ 10.)
alleges that “[s]ome of the [job] sites were [i]naccessible.” (Am.
Compl. ¶ 12.)
However, Plaintiff obtained “consistent work as a
background actor” and worked on the same television show for three
seasons. (Am. Compl. ¶ 21.) Plaintiff was the only disabled actor
The following facts are taken from the Amended Complaint and
are presumed to be true for the purposes of this Memorandum and
Order. All internal quotation marks and citations are omitted.
on set and alleges that “SAG does not take any steps to enforce
opportunity arises for a background artist ‘non-descript’ person.”
(Am. Compl. ¶ 17.)
A lottery is drawn each year to determine which actors
will attend the annual SAG AFTRA awards (the “SAG Awards”).
Compl. ¶ 28.)
In 2010, Plaintiff won the lottery and attended the
(Am. Compl. ¶ 28.)
However, Plaintiff was the only
disabled attendee “on the floor” and was seated at the only table
with three seats.
(Am. Compl. ¶ 28.)
Plaintiff avers that the
lottery, which is conducted by internet registration, is unfair
because it fails to consider potential participants who are blind
or have no arms.
(Am. Compl. ¶ 29.)
Plaintiff asserts that phone
lines should be set up for disabled actors and there should be a
Plaintiff sought to discuss his thoughts on this issue with CoyneHoerle, the coordinator of the SAG Awards, but “no discussions
(Am. Compl. ¶ 29.)
Subsequently, Plaintiff spoke to
Coyne-Hoerle about a separate lottery for disabled actors and she
stated that “if she had to accommodate and start a separate lottery
for disabled actors that she would cancel the lottery and stop the
Awards all together.”
(Am. Compl. ¶ 30.)
Executive Counsel, “regarding the unequal treatment of disabled
actors during the lottery drawing and the lack of recognition of
the population and that strategies and programs must be put in
place to accommodate.”
(Am. Compl. ¶ 31.)
concerns were not resolved.
(Am. Compl. ¶ 31.)
that as a result of SAG’s actions, he will “continue to suffer
(Am. Compl. ¶ 34.)
Plaintiff notes that at
the SAG Awards, “there is no mention made regarding the recognition
for the disabled, but they do for ethnicities, races, [but] none
(Am. Compl. ¶ 35.)
At an unspecified time, Plaintiff assisted disabled
actors with casting by “bypassing the casting agent since they
weren’t sending any casting calls to [his] disabled colleagues[.]”
(Am. Compl. ¶ 36.)
As a result, Grant Wilfley ceased contacting
(Am. Compl. ¶ 36.)
Plaintiff’s colleagues at Law and
Order, a television program that he had worked on, advised that
they were told Plaintiff “was on other jobs.”
(Am. Compl. ¶ 36.)
Plaintiff alleges that he “has been unable to work for the past 6
(Am. Compl. at 22.)
On January 8, 2016, Plaintiff spoke with “SAG AFTRA
membership” and was advised that they do not possess a list of
(Am. Compl. ¶ 37.)
Plaintiff alleges that SAG
cannot “protect and provide equal access” if they do not know the
number of their disabled members.
(Am. Compl. ¶ 37.)
On January 8, 2016, Plaintiff commenced this action and
filed a motion to proceed in forma pauperis.
January 13, 2016, Plaintiff filed his Amended Complaint, asserting
claims under 42 U.S.C. Section 1983 and ADA “Title II and III,”
and requesting both injunctive relief and monetary damages.
Am. Compl. at 1, 17-23.)
On January 25, 2016, Plaintiff was
granted leave to proceed in forma pauperis; however, his Section
1983 claim was sua sponte dismissed.
(Docket Entry 8, at 7.)
On March 11, 2016, Defendants filed their motion to
dismiss, seeking dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(6) with respect to claims against all Defendants
and Rule 12(b)(2) with respect to claims against Coyne-Hoerle.
(Defs.’ Mot.; Defs.’ Br., Docket Entry 18, at 11.)
Defendants’ reply (the “Sur-Reply”).
On April 5,
(Pl.’s Sur-Reply, Docket
Plaintiff’s Sur-Reply (the “Motion to Strike”).
(Defs.’ Mot. to
Strike, Docket Entry 22.)
Motion to Strike
consider Plaintiff’s Sur-Reply, as it was submitted after the
completion of briefing on Defendants’ Motion to Dismiss.
Mot. to Strike at 1.)
Plaintiff did not request leave to file the
Sur-Reply and the Court did not otherwise grant permission to
submit additional briefing.
Accordingly, Defendants’ motion to
strike is GRANTED and Plaintiff’s Sur-Reply is STRICKEN.
respect to the SAG Awards fail to plausibly plead a Title III claim
as Plaintiff “nowhere alleges facts showing that he was ever denied
‘a full and equal opportunity to enjoy the services [that the]
(Defs.’ Br. at 10 (quoting 42 U.S.C.
Defendants only moved to dismiss the Amended Complaint pursuant to
Rules 12(b)(2) and (b)(6), the Court will sua sponte address the
issue of standing.
See Cent. States Se. and Sw. Areas Health and
Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181,
198 (2d Cir. 2005) (“[b]ecause the standing issue goes to this
Court’s subject matter jurisdiction, it can be raised sua sponte”).
To establish standing pursuant to Article III of the
Constitution, the plaintiff must possess: “‘(1) injury in fact,
which must be (a) concrete and particularized, and (b) actual or
imminent; (2) a causal connection between the injury and the
defendant’s conduct; and (3) the injury must be likely to be
redressed by a favorable decision.’”
Grella v. Avis Budget Grp.,
Inc., No. 14-CV-8273, 2016 WL 638748, at *4 (S.D.N.Y. Feb. 11,
2016) (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d 184,
187 (2d Cir. 2013)).
While Title III provides a private right of
Grella, 2016 WL 638748, at *4. Thus, a Title III plaintiff seeking
injury in fact presents a ‘real and immediate threat of future
injury,’ often termed ‘a likelihood of future harm.’”
Spring Valley Marketplace LLC, No. 15-CV-8190, 2017 WL 108062, at
*6 (S.D.N.Y. Jan. 9, 2017) (quoting Shain v. Ellison, 356 F.3d
211, 215-16 (2d Cir. 2004)). See also Perdum v. Forest City Ratner
Companies, 174 F. Supp. 3d 706, 714–15 (E.D.N.Y. 2016) aff’d, --F. App’x ----, 2017 WL 537056 (2d Cir. 2017) (“[w]hat constitutes
personally encounter[ed] the barrier to access complained of, or
[ ] has actual knowledge of the barrier complained of and has been
deterred from visiting the public accommodation because of that
barrier”) (internal quotation marks and citation omitted; second
and third alterations in original).
lottery is unfair to disabled actors, particularly blind actors or
actors without arms who could potentially encounter difficulties
completing the online registration.
(Am. Compl. ¶ 29.)
also alleges that he complained to Coyne-Hoerle about the absence
of a separate lottery for disabled actors.
(Am. Compl. ¶ 30.)
However, Plaintiff does not allege that he is blind or unable to
use his arms.
Moreover, Plaintiff was unequivocally able to
successfully register for the lottery.
Thus, he has not alleged
an injury based on the lack of a separate SAG Awards lottery system
for disabled actors.
Plaintiff has also failed to allege an injury based on
his placement at the only three-person table on the floor of the
(See Am. Compl. ¶ 28 (“[w]e were table 49A, the only
table with 3 seats, oblong like the others but slanted to the side,
we were the token ‘disabled’ table”).)
While Plaintiff argues
that his table was “toward the back of the hall” and the only other
disabled individual on the floor was a gentleman in a wheelchair,
(Pl.’s Opp. Br., Docket Entry 19, at 10), he concedes that he was
seated at a table on the floor, (Am. Compl. ¶ 28 (“[o]nce at the
site, however, I noticed I was the only disabled individual on the
In the absence of any allegations that Plaintiff’s
seating at a three person table, rather than a larger table,
constituted a “barrier to access,” see Perdum, 174 F. Supp. 3d at
714–15, Plaintiff has failed to plausibly plead an actual injury.
Similarly, Plaintiff has failed to allege an actual injury based
on the SAG Awards’ failure to recognize the achievements of
(Am. Compl. ¶ 35.)
standing to assert an ADA claim based on the inaccessibility of
This limited the access for the disabled SAG
member. This practice is not fair nor is it equal to the disable[d]
Plaintiff has not alleged that he was unable to
encountered inaccessible television and film production sites is
belied by his allegation that he acted on several television shows
and movies and “consistent[ly]” worked on the same television show
for three consecutive seasons.
(Am. Compl. ¶¶ 9, 21.)
Accordingly, Plaintiff lacks standing to assert a Title
III claim regarding the SAG Awards lottery system, his seating at
the 2010 SAG Awards, the lack of recognition for disabled actors
at the SAG Awards, and the inaccessibility of job sites, and his
ADA Title III claims based on those allegations are DISMISSED
WITHOUT PREJUDICE for lack of subject matter jurisdiction.
Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016)
(“where a complaint is dismissed for lack of Article III standing,
Such a dismissal is one for lack of subject matter
listed in the caption as “[a]wards coordinator SAG Awards”--solely
relate to the lack of a separate SAG Awards lottery for disabled
(Am. Compl. ¶ 29 (alleging that Plaintiff sent an email
to Coyne-Hoerle “discuss [his] thoughts” regarding the lottery);
¶ 30 (alleging that he spoke with Coyne-Hoerle about a separate
lottery and she stated that “if she had to accommodate and start
a separate lottery for disabled actors that she would cancel the
lottery and stop the Awards all together”).)
In light of the
Court’s determination that Plaintiff lacks standing to assert a
Title III claim regarding the SAG Awards lottery, the Court need
not determine whether it possesses personal jurisdiction over
Coyne-Hoerle as any claims against her are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction.
III. Motion to Dismiss
At the outset, the Court notes that the Amended Complaint
expressly states that Plaintiff’s ADA claims are asserted pursuant
to ADA Titles II and III.2
(Am. Compl. at 1.)
As ADA Title II
addresses discrimination by “public entit[ies],” with a “public
The Court notes that Plaintiff references ADA Title I in his
opposition papers. (Pl.’s Opp. Br. at 6.) However, the Court
declines to construe the Amended Complaint as asserting a
Title I claim in light of Plaintiff’s express assertion that his
claims arise under Titles II and III. (See Am. Compl. at 1.)
Moreover, even if the Court were to construe Plaintiff’s alleged
failure to receive casting calls, (Am. Compl. ¶ 36), as a Title
I employment discrimination claim, as set forth more fully
below, Plaintiff alleges that Grant Wilfley, a non-party casting
agency, was responsible for casting, not SAG or the individual
defendants. (See, e.g., Am. Compl. ¶ 10 (“[t]he casting agency
know[n] as Grant Wilfley Casting, Inc . . . was responsible for
my hiring of these jobs at that time. They would assign me
directly to the project, be it a TV show or feature film, and
send me there”).)
entity” defined as “(A) any State or local government; (B) any
instrumentality of a State or States or local government; and (C)
the National Railroad Passenger Corporation, and any commuter
authority,” see 42 U.S.C. §§ 12131(1), 12132, this provision is
not applicable to the private Defendants in the case at bar.
Scaggs v. N.Y. Dep’t of Educ., No. 06-CV-0799, 2007 WL 1456221, at
*16 n.14 (E.D.N.Y. May 16, 2007) (“As Title II of the ADA applies
only to public entities, Edison, as a private corporation, is not
subject to liability pursuant to this statute.”).
Defendants’ motion is GRANTED with respect to Plaintiff’s ADA Title
The Court will address whether Plaintiff has stated a
Title III claim.
a motion to dismiss,
contain factual allegations that “‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007)).
This plausibility standard is
not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.”
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
The Court's plausibility determination is a “context-specific task
experience and common sense.”
Harris v. Mills, 572 F.3d 66, 72
(2d Cir. 2009) (internal quotation marks and citation omitted).
a pro se litigant
construed liberally and “however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
2200, 167 L. Ed. 2d 1081 (2007).
See also Hiller v. Farmington
Police Dep’t, No. 12-CV-1139, 2015 WL 4619624, at *7 (D. Conn.
Jul. 31, 2015) (noting that the dismissal of a pro se complaint
pursuant to Rule 12(b)(6) is not appropriate “unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief”) (internal
a pro se complaint must state a plausible claim for relief and
comply with the minimal pleading standards set forth in Federal
Rule of Civil Procedure 8.
Hiller, 2015 WL 4619624, at *7.
ADA Title III provides, in relevant part, that “[n]o
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place
of public accommodation by any person who owns, leases (or leases
to), or operates a place of public accommodation.”
The plaintiff states a Title III claim where he
alleges: “(1) that [ ]he is disabled within the meaning of the
ADA; (2) that defendants own, lease, or operate a place of public
accommodation; and (3) that defendants discriminated against [him]
by denying [him] a full and equal opportunity to enjoy the services
Camarillo v. Carrols Corp., 518 F.3d 153,
156 (2d Cir. 2008).
The Court construes the Amended Complaint as asserting
a claim based on Plaintiff’s failure to receive casting calls after
he assisted disabled colleagues by “bypassing the casting agent.”
(Am. Compl. ¶ 36; see also Am. Compl. ¶¶ 15, 17 (alleging that SAG
representatives present at worksites do not “take any steps to
enforce nor include their disabled Actor population when a call or
person”); Am. Compl. ¶ 25 (alleging that non-disabled actors are
“consistently” cast to play disabled characters).)
Court finds that Plaintiff has failed to plausibly plead a Title
First, a film or television production set is not a
“public accommodation” pursuant to Title III.
The ADA defines
“private entity” as “any entity other than a public entity.”
As previously noted, the ADA defines “public entity” as, inter
alia, a state or local government or an agency or
production set is not included in the list of private entities
that are considered public accommodations under Title III.
“exhaustive, not merely exemplary or illustrative,” Jankey v.
Twentieth Century Fox Film Corp., 14 F. Supp. 2d 1174, 1178 (C.D.
Cal. 1998), aff’d, 212 F.3d 1159 (9th Cir. 2000), includes “a
motion picture house, theater, concert hall, stadium, or other
place of exhibition or entertainment,” 42 U.S.C. § 12181(7), the
Court declines to equate a production set with a “motion picture
house” or “theater.”
See Jankey, 14 F. Supp. 2d at 1181 (holding
that “the Twentieth Century Fox film studio lot is NOT a place of
Second, Plaintiff’s allegations regarding his failure to
receive casting calls do not indicate that he was denied the use
of goods or services provided by SAG.
Cf. Krist v. Kolombos Rest.
Inc., 688 F.3d 89, 97 (2d Cir. 2012) (“Title III is designed to
prevent a facility offering public accommodation from denying
instrumentality of a state or local government.
The Jankey Court also considered whether specific facilities
on the film studio lot--namely, the commissary, studio store,
and an ATM--constituted public accommodations that would render
the lot a “mixed use” facility and ultimately held that these
facilities were not public accommodations. Jankey, 14 F. Supp.
2d at 1180-84.
individuals with disabilities ‘goods and services’”) (quoting 42
U.S.C. §§ 12182(a), 12182(b)(2)(A)(ii)); Andersen v. N. Shore Long
No. 12-CV-1049, 2013 WL 784391, at *10, (S.D.N.Y. Jan. 23, 2013),
report and recommendation adopted as modified on other grounds,
2013 WL 784344 (S.D.N.Y. Mar. 1, 2013) (“unless [defendants’]
policies and procedures were applied in a discriminatory way, or
were used to deprive plaintiff of access to a program, benefit, or
Moreover, the Amended Complaint states that Grant Wilfley, not
SAG, was responsible for casting, and after Plaintiff assisted his
disabled colleagues, Grant Wilfley ceased contacting him.
Am. Compl. ¶¶ 10, 36.)
Plaintiff’s vague assertion that on-site
SAG representatives failed to “enforce[e] [ ] the disabled actor
in the workplace setting for inclusion,” (Am. Compl. ¶ 17), does
not suffice to state a Title III claim.
motion to dismiss is GRANTED and Plaintiff’s Title III claim is
Defendants also argue that they did not own, lease, or operate
any television and film production sites. (Defs.’ Br. at 9.)
The Court need not determine this issue in light of its
dismissal of the Amended Complaint on other grounds.
Leave to Replead
The Second Circuit has held that “[w]hen a motion to
dismiss is granted, the usual practice is to grant leave to amend
Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d
Cir. 1999), overruled on other grounds, Gonzaga v. Doe, 536 U.S.
273, 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002); see also FED. R.
CIV. P. 15(a)(2) (“[t]he court should freely give leave [to amend]
when justice so requires.”).
“However, a district court has the
discretion to deny leave to amend where there is no indication
from a liberal reading of the complaint that a valid claim might
Perri v. Bloomberg, No. 11-CV-2646, 2012 WL 3307013,
at *4 (E.D.N.Y. Aug. 13, 2012).
The Court declines to grant Plaintiff leave to replead
the claims dismissed for lack of standing. Additionally, the Court
finds that there is no indication from a liberal reading of the
Amended Complaint that Plaintiff can state a valid Title II or
Title III claim based on his failure to receive casting calls.
Title II is not applicable to Defendants since they are private
television or film production set is not a “public accommodation”
pursuant to Title III.
Parenthetically, the Amended Complaint is
totally silent as to Moore.
Accordingly, leave to replead the
Amended Complaint is DENIED.
For the foregoing reasons, Defendants’ motion to strike
(Docket Entry 21) is GRANTED and Plaintiff’s Sur-Reply (Docket
Entry 20) is STRICKEN. Additionally, Defendants’ motion to dismiss
(Docket Entry 17) is GRANTED.
As set forth above, Plaintiff’s
PREJUDICE and Plaintiff’s remaining Title II and Title III claims
are DISMISSED WITH PREJUDICE.
Given Plaintiff’s pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore
in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S. Ct. 917, 8
L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Order to the pro se Plaintiff and mark this case CLOSED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
7 , 2017
Central Islip, New York
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