Thorne v. American Dairy Queen Corporation
OPINION AND ORDER re: 12 MOTION to Dismiss, filed by American Dairy Queen Corporation. For the foregoing reasons, Defendant's original motion to dismiss at Docket Number 12 is DENIED as moot, Defendant's new motion to dismiss for lack of standing is DENIED, and Defendant's new motion to dismiss for failure to state a claim is GRANTED. The Clerk of Court is directed to close the motion at Docket Number 12. SO ORDERED. (Signed by Judge J. Paul Oetken on 10/14/2020) (va)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
OPINION AND ORDER
-vAMERICAN DAIRY QUEEN
J. PAUL OETKEN, District Judge:
Plaintiff Braulio Thorne brings suit against Defendant American Dairy Queen
Corporation (“Dairy Queen”) pursuant to Title III of the Americans with Disabilities Act of 1990
and state and local law. Thorne, who is legally blind, alleges that Dairy Queen discriminated
against him and other visually impaired individuals by not selling gift cards that incorporate
Braille. Dairy Queen moves to dismiss Thorne’s complaint for lack of standing pursuant to
Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6). The Court determines that it has jurisdiction but that the complaint
fails to state a claim, and the motion to dismiss is accordingly granted.
The facts below are drawn from the operative complaint and are presumed true for the
purposes of this motion.
Dairy Queen “is one of the largest restaurant chains in the world” and “owns, operates
and/or controls Dairy Queen restaurants across the United States,” including in New York City
and State. (See Dkt. No. 15 (“FAC”) ¶ 26.) The crux of this suit revolves around the “pre-paid
cash cards, colloquially referred [to] as ‘store gift cards’” (FAC ¶ 4) that Dairy Queen sells as
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“an alternative method of payment that may be used to make a purchase of goods and services”
(FAC ¶ 30).
Plaintiff Braulio Thorne is a legally blind, visually impaired person “who requires
Braille, which is a tactile writing system, to read written material.” (FAC ¶ 2.) He lives in close
proximity to a Dairy Queen restaurant, where he has been a customer on prior occasions and
intends to return. (FAC ¶¶ 21, 25.) On October 23, 2019, Thorne called Dairy Queen’s
“customer service office in an attempt to purchase a store gift card.” (FAC ¶ 16.) Thorne
“inquired if [they] sold store gift cards containing Braille and was informed by [Dairy Queen’s]
employee that [they] do not.” (Id.)
Thorne alleges that “[w]ithout an effective auxiliary aid for the physical [gift] cards,” the
visually impaired “cannot independently access the information contained” on the card necessary
for its use (FAC ¶ 5), and cannot distinguish the gift cards “from other cards” in their possession,
forcing them “to rely on the good will of strangers to pick the card out of their private bag or
wallet” (FAC ¶ 7). For these reasons, Thorne contends, he is unable to use the gift cards to make
a purchase in-store, online, or over the phone (id.), denying him the “full and equal access” to
Dairy Queen’s “products and services offered to the general public in conjunction with its
physical locations.” (FAC ¶ 9.) Thorne claims that this violates his rights under the ADA and
under New York City and State law.
Thorne filed suit against Dairy Queen on October 27, 2019. (Dkt. No. 1). On January
13, 2020, Dairy Queen moved to dismiss Thorne’s complaint. (Dkt. No. 13.) In response, on
February 6, 2020, Thorne filed the now-operative First Amended Complaint. (FAC.) Dairy
Queen filed its present motion to dismiss — in the form of a memorandum of law in support of a
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motion to dismiss 1 — on February 26, 2020. (Dkt. No. 16.) Thorne opposes the motion and, in
the alternative, seeks leave to amend his complaint again. (Dkt. No. 20 at 22.)
“A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of
subject matter jurisdiction if the court lacks the statutory or constitutional power to adjudicate
it,” including when a “plaintiff lacks constitutional standing to bring the action.” Cortlandt St.
Recovery Corp. v. Hellas Telecomms., S.A.R.L., 790 F.3d 411, 416–17 (2d Cir. 2015) (quotation
marks and citation omitted). “The plaintiff bears the burden of alleging facts that affirmatively
and plausibly suggest that [she] has standing.” Id. at 417 (quotation marks, alteration, and
To survive a motion to dismiss for failure to state a claim, plaintiffs must plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is facially plausible when plaintiffs have pleaded facts that would
allow “the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “Court[s] must accept as true all well-pleaded factual
allegations in the complaint, and ‘draw all inferences in the plaintiff’s favor.’” Goonan v. Fed.
When Thorne amended his original complaint, he effectively mooted Dairy Queen’s
motion to dismiss that complaint. (See Dkt. Nos. 12, 15.) Thereafter, Dairy Queen filed a
memorandum of law in support of a motion to dismiss the amended complaint without a new
notice of its new motion, in contravention of Local Civil Rule 7.1(a)(1). This procedural defect
notwithstanding, Thorne has fully responded to the motion to dismiss the amended complaint
and has not objected to its consideration. No prejudice will therefore result from this Court’s full
consideration of the motion. Accordingly, the original motion to dismiss at Docket Number 12
is denied as moot, and the memorandum of law at Docket Number 16 is deemed sufficient to
satisfy the requirement of notice of a motion to dismiss the First Amended Complaint.
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Reserve Bank of N.Y., 916 F. Supp. 2d 470, 478 (S.D.N.Y. 2013) (quoting Allaire Corp. v.
Okumus, 433 F.3d 248, 250 (2d Cir. 2006)). However, “although a court must accept as true all
of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions,”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal quotation marks and citation omitted),
and to facts “contradicted by more specific allegations or documentary evidence.” L-7 Designs,
Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011). “Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at
Dairy Queen argues that this Court lacks jurisdiction because Thorne lacks standing and
that, in any event, Thorne’s complaint fails to state a claim under the ADA and New York City
and State law. The Court turns first to the issue of standing, as it must, and then to the merits of
Standing to bring an ADA claim exists “where (1) the plaintiff allege[s] past injury under
the ADA; (2) it [i]s reasonable to infer that the discriminatory treatment w[ill] continue; and (3)
it [i]s reasonable to infer . . . 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) (per curiam).
Here, Thorne has sufficiently pleaded each element. He has pleaded past injury because
the First Amended Complaint’s allegations, taken collectively, state that Thorne requested and
was denied a Braille gift card. Thorne specifically pleads that he inquired about the availability
of a Braille gift card, was told they were not offered, and was not offered any other auxiliary aid.
(FAC ¶ 16). He could not otherwise locate a Braille gift card to purchase. (FAC ¶ 17). Those
allegations make out a cognizable injury under the ADA. See Mendez v. Outback Steakhouse of
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Fla., LLC, No. 19-CV-9858, 2020 WL 4273820, at *2 (citing Dominguez v. Taco Bell Corp., No.
19-CV-10172, 2020 WL 3263258, at *2 (S.D.N.Y. June 17, 2020) (“A cognizable ADA injury
occurs when a person encounters a barrier at a public accommodation.”)). That Thorne alleges
he merely “inquired if Defendant sold store gift cards containing Braille” (FAC ¶ 16), rather than
specifically requesting a gift card, is inconsequential. The standing requirement does not impose
on plaintiffs an artificial obligation to do the patently futile. Kreisler, 731 F.3d at 188 (holding
that an ADA plaintiff “need not attempt to overcome an obvious barrier” to establish an injury).
Having been told by a representative that Braille gift cards were unavailable, Thorne was under
no obligation to request a Braille gift card to preserve his challenge.
Next, the general allegation that Dairy Queen does not sell Braille gift cards, paired with
the specific allegation that an employee informed Thorne “that [Dairy Queen] does not sell store
gift cards containing Braille” (FAC ¶ 16), raises the inference that the discriminatory treatment
will continue. See Mendez, 2020 WL 427820, at *2. Finally, Thorne has sufficiently pleaded an
intent to return to Dairy Queen, alleging that he has visited Dairy Queen on prior occasions and
plans to purchase a Braille gift card, once available, and use it at a Dairy Queen. (FAC ¶ 21.)
Thorne has standing to bring his claim, and the Court therefore proceeds to the merits.
Dairy Queen argues, among other things, that Thorne’s ADA claim fails because a gift
card is a “good” that a public accommodation need not modify under the ADA and because
Thorne has failed to plausibly allege the absence of any other auxiliary aid or service that could
ensure equal access to gift cards. (See Dkt. No. 16 at 11–13.) The Court has addressed these
precise issues before in a virtually indistinguishable case and need not rehash its reasoning here.
For the reasons recently stated in Mendez v. Outback Steakhouse of Florida, this Court
determines that a Braille gift card is a “good” that Dairy Queen need not modify under the ADA
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and that Thorne’s failure to allege that he sought or inquired about any other adequate auxiliary
aid or service is fatal to his claim. See Mendez, 2020 WL 4273820, at *3–4. The ADA claim
Because Thorne’s federal claims are dismissed, the Court declines to exercise
supplemental jurisdiction over his remaining New York State and City claims. See 28 U.S.C.
§ 1367(c)(3). The Supreme Court has instructed that “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered . . . will point toward
declining to exercise jurisdiction over the remaining state-law claims.” Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n.7 (1988). Thus, pursuant to § 1367(c)(3), the Court declines
jurisdiction over the remaining state-law claims.
Leave to Amend
In the alternative, Thorne requests leave to amend. Leave to amend should be granted
when justice so requires. Fed. R. Civ. P. 15(a). “[W]here the plaintiff is unable to demonstrate
that he would be able to amend his complaint in a manner which would survive dismissal,
opportunity to replead is rightfully denied.” Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d Cir.
1999). Accordingly, Thorne, if he still wishes to amend his complaint, is directed to file a letter
motion explaining how a second amended complaint would state a claim consistent with this
Opinion and Order and with this Court’s decision in Mendez. The letter must identify additional
facts indicating that Dairy Queen failed to provide auxiliary aids or services ensuring effective
communication of the information on its gift cards to visually impaired persons. Thorne is
further directed to append to the letter a draft of the proposed second amended complaint
indicating the changes from the current operative complaint. Thorne is directed to file the letter
motion on or before October 30, 2020.
Case 1:19-cv-09933-JPO Document 25 Filed 10/14/20 Page 7 of 7
For the foregoing reasons, Defendant’s original motion to dismiss at Docket Number 12
is DENIED as moot, Defendant’s new motion to dismiss for lack of standing is DENIED, and
Defendant’s new motion to dismiss for failure to state a claim is GRANTED.
The Clerk of Court is directed to close the motion at Docket Number 12.
Dated: October 14, 2020
New York, New York
J. PAUL OETKEN
United States District Judge
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