Velazquez v. Don Roberto Jewelers, Inc.

Filing 21

OPINION AND ORDER re: 16 MOTION to Dismiss for Lack of Personal Jurisdiction and Improper Venue. filed by Don Roberto Jewelers, Inc.., For the foregoing reasons, Don Robertos motion to dismiss is DENIED. The parties are directed to a ppear for a telephonic initial pretrial conference on April 25, 2024, at 10:00 a.m. The parties should dial 877-411-9748 and enter access code 3029857# when prompted. The Clerk of Court is respectfully directed to terminate the motion, Doc. 16. It is SO ORDERED. (Initial Conference set for 4/25/2024 at 10:00 AM before Judge Edgardo Ramos.) (Signed by Judge Edgardo Ramos on 3/27/2024) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRYAN VELAZQUEZ, on behalf of
himself and all others similarly
situated,
Plaintiff,

OPINION & ORDER
22-cv-09247 (ER)

– against –
DON ROBERTO JEWELERS, INC.,
Defendant.
RAMOS, D.J.:

Bryan Velazquez, who is visually impaired and legally blind, filed this putative
class action alleging that he has been denied full and equal access to a website owned and
operated by Don Roberto Jewelers, Inc. Don Roberto has moved to dismiss for lack of
personal jurisdiction and improper venue. For the reasons set forth below, the motion is
DENIED.
I.

BACKGROUND
Velazquez, a resident of New York City, is visually impaired and legally blind.

Doc. 15 ¶¶ 2, 11. He uses screen-reading software to navigate the internet. Id. ¶¶ 17, 23.
Don Roberto owns and operates www.donrobertojewelers.com (the “Website”).
Id. ¶ 21. �e Website offers products and services for online sale and general delivery to
the public. Id. ¶ 22. It also offers interactive features that should allow users to browse
for items, inquire about pricing, and choose a price range. Id. ¶¶ 22, 28.
On September 13 and 16, 2022, Velazquez visited the Website to purchase a ring
that he intended to give as a gift. Id. ¶¶ 25–27. While attempting to make his purchase,
however, Velazquez encountered multiple issues. Id. ¶ 27. For one, the “choose a price
range function” was not identified as an interactive button, so Velazquez had to look
through hundreds of rings rather than narrow the selection down by price point. Id. ¶ 28.

In addition, different images of the same product had “poorly descriptive alternative
text,” so Velazquez could not choose one specific ring because “they all sounded the
same.” Id. ¶ 29. �e phone number and email address on the home page posed issues as
well: the phone number was in “plain text . . . inaccessible to the screen reader
software,” while the email address was “non-interactive, therefore making it difficult for
[Velazquez] to send an email.” Id. ¶ 30. And the Website had several other accessibility
problems, including a lack of alternative text for multiple images on the Website,
headings and lists that were not properly formatted, and other interactive elements that
were not correctly identified. Id. ¶ 31.
Velazquez asserts that he intends to return to the Website to complete his purchase
in the near future if it is made accessible. Id. ¶ 33. He specifically requests that the
Website be made compliant with version 2.1 of the Web Content Accessibility
Guidelines. Id. ¶¶ 19, 41. �ose guidelines are followed by many businesses and
government agencies “to ensure their websites are accessible.” Id. ¶ 19.
Velazquez brought this action on October 27, 2022. Doc. 1. He filed an amended
complaint on March 10, 2023. Doc. 15. Velazquez alleges that Don Roberto violated the
Americans with Disabilities Act and the New York City Human Rights Law. Id. ¶¶ 52–
72. He seeks declaratory and injunctive relief, as well as damages. Id. at 20–22.
On March 31, 2023, Don Roberto moved to dismiss for lack of personal
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2) and improper venue
pursuant to Rule 12(b)(3). Doc. 16. Don Roberto submitted a declaration from one of its
executives in connection with the motion. Doc. 17-1. �e declaration states that Don
Roberto is not registered to do business in New York. Id. ¶ 5. �e “vast majority” of
Don Roberto’s sales are made at one of its physical locations in California. Id. ¶ 6. In
2021, Don Roberto made one sale through its website to a New York address, accounting
for a minuscule percentage of its total sales. Id. In 2022, Don Roberto made two sales to

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customers with a New York shipping address, again accounting for just a tiny fraction of
its total sales. Id.
II.

LEGAL STANDARD
A. Rule 12(b)(2)
“A plaintiff opposing a motion to dismiss under Rule 12(b)(2) for lack of personal

jurisdiction has the burden of establishing that the court has jurisdiction over the
defendant.” BHC Interim Funding, LP v. Bracewell & Patterson, LLP, No. 02-cv-4695
(LTS) (HBP), 2003 WL 21467544, at *1 (S.D.N.Y. June 25, 2003) (citing Bank Brussels
Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999)). To meet
this burden where there has been no discovery or evidentiary hearing, the plaintiff must
plead facts sufficient to make a prima facie showing of jurisdiction. Id. As the court
evaluates a Rule 12(b)(2) motion, it must credit the plaintiff’s allegations as true and
resolve all doubts in the plaintiff’s favor. Casville Invs., Ltd. v. Kates, No. 12-cv-6968
(RA), 2013 WL 3465816, at *3 (S.D.N.Y. July 8, 2013). “However, a plaintiff may not
rely on conclusory statements without any supporting facts, as such allegations would
‘lack the factual specificity necessary to confer jurisdiction.’” Art Assure Ltd., LLC v.
Artmentum GmbH, No. 14-cv-3756 (LGS), 2014 WL 5757545, at *2 (S.D.N.Y. Nov. 4,
2014) (quoting Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998)). As Rule
12(b)(2) motions are “inherently . . . matter[s] requiring the resolution of factual issues
outside of the pleadings,” courts may rely on additional materials outside the pleadings
when ruling on such motions. John Hancock Prop. & Cas. Ins. Co. v. Universale
Reinsurance Co., No. 91-cv-3644 (CES), 1992 WL 26765, at *1 n.1 (S.D.N.Y. Feb. 5,
1992); accord Darby Trading Inc. v. Shell Int’l Trading & Shipping Co., 568 F. Supp. 2d
329, 334 (S.D.N.Y. 2008).
To assess personal jurisdiction over a non-domiciliary in a federal question case,
the court looks to the long-arm statute of the forum state. Eades v. Kennedy, PC Law
Offs., 799 F.3d 161, 168 (2d Cir. 2015). If the court’s exercise of personal jurisdiction is

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proper under the long-arm statute, then the court asks whether personal jurisdiction
“comports with due process protections established under the Constitution.” Id.
B. Rule 12(b)(3)
“�e legal standard for a motion to dismiss for improper venue is the same as a
motion to dismiss for lack of personal jurisdiction.” Casville Invs., 2013 WL 3465816, at
*3 (citing Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005)). “When a
defendant challenges either the jurisdiction or venue of the court, the plaintiff bears the
burden of showing that both are proper.” Id. (citing DiStefano v. Carozzi N. Am., Inc.,
286 F.3d 81, 84 (2d Cir. 2001)). Where the court relies on pleadings and affidavits and
does not conduct an evidentiary hearing, the plaintiff need only allege facts sufficient to
make a prima facie showing of venue. Id. (citing Gulf Ins., 417 F.3d at 355).
III.

DISCUSSION
A. Personal Jurisdiction
New York’s Long-Arm Statute
Velazquez contends that the Court has personal jurisdiction based on section

302(a)(1) of the New York long-arm statute. Doc. 19 at 4. Under that provision, a court
in New York may exercise personal jurisdiction over a non-domiciliary if (1) the
defendant “transacts any business within the state,” and (2) the “cause of action aris[es]
from” that business transaction. N.Y. C.P.L.R. § 302(a)(1); see, e.g., Eades, 799 F.3d at
168.
a. Transacting Business in New York
Under the first prong, the defendant “need not be physically present in New York
to ‘transact business,’ so long as the defendant has engaged in ‘purposeful activity.’”
Spin Master Ltd. v. 158, 463 F. Supp. 3d 348, 362 (S.D.N.Y. 2020). �at includes, for
example, “some act by which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and protections of
its laws.” Id. (quoting Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007)).

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In assessing whether the operation of a website qualifies as the transaction of
business in New York, courts analyze the website’s “degree of interactivity.” Camacho v.
Emerson College, No. 18-cv-10600 (ER), 2019 WL 5190694, at *3 (S.D.N.Y. Oct. 15,
2019); see also Touro College v. Fondazione Touro Univ. Rome Onlus, No. 16-cv-3136
(DAB), 2017 WL 4082481, at *8 (S.D.N.Y. Aug. 31, 2017). A defendant’s operation of a
“passive” website accessible in New York, such as one that merely “provides information
about services for sale and contact information for the seller, without any ability to
directly purchase the services through the website,” does not rise to the required level of
transacting business to confer personal jurisdiction. A.W.L.I. Grp., Inc. v. Amber Freight
Shipping Lines, 828 F. Supp. 2d 557, 568 (E.D.N.Y. 2011); see also Touro College, 2017
WL 4082481, at *9. On the other hand, a defendant’s operation of an “interactive”
website accessible in New York, such as one that allows for the purchase and exchange of
goods, can support the exercise of personal jurisdiction. See Touro College, 2017 WL
4082481, at *9.
Don Roberto’s website is interactive because it allows for the purchase and
exchange of goods. Doc. 15 ¶ 22; see Quezada, 2021 WL 5827437, at *7 (finding that
defendant’s website was interactive because “it allows for the purchase and exchange of
goods”). And while a website’s capacity to be accessed in New York may not alone
constitute a transaction of business, see Guglielmo v. Nebraska Furniture Mart, Inc., No.
19-cv-11197 (KPF), 2020 WL 7480619, at *8 (S.D.N.Y. Dec. 18, 2020), personal
jurisdiction is more likely to exist if the defendant has actually sold goods in New York,
see Dicks v. Cooks Junction, Inc., No. 22-cv-6495 (LJL), 2023 WL 2775830, at *4
(S.D.N.Y. Apr. 4, 2023) (finding first prong satisfied where there was “no dispute that
Defendant’s Website is interactive and has been used to effect commercial transactions
with customers in New York”); cf. Diaz v. Kroger Co., No. 18-cv-7953 (KPF), 2019 WL
2357531, at *7 (S.D.N.Y. June 4, 2019) (dismissing case for lack of personal jurisdiction

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where “Defendant does not sell, through the Website, goods or services to New York
residents”).
Here, the Website has been used to sell goods to customers in New York. Don
Roberto’s own declaration states that the company made three sales to New York
addresses in 2021 and 2022. Doc. 17-1 ¶ 6. While the three New York sales constitute
only a fraction of Don Roberto’s overall business, id., section 302(a)(1) is a “single act
statute,” Spin Master, 463 F. Supp. 3d at 362. As a result, “proof of one transaction in
New York is sufficient to invoke jurisdiction, even though the defendant never enters
New York, so long as the defendant’s activities here were purposeful and there is a
substantial relationship between the transaction and the claim asserted.” Kreutter v.
McFadden Oil Corp., 522 N.E.2d 40, 43 (N.Y. 1988). And Don Roberto’s assertion that
it did not expressly advertise to New York residents, Doc. 17-1 ¶ 6, is “not enough to
immunize [it] from this state’s jurisdiction when [its] products are readily available for
sale to New York customers,” Quezada, 2021 WL 5827437, at *7 (finding that allegations
that website offered goods for sale to customers in New York constituted sufficient prima
facie evidence that defendant conducted business in New York).
Accordingly, accepting the amended complaint’s allegations as true, the Court
concludes that the “transacting business” prong of the New York long-arm statute is
satisfied.
b. Arising from a Business Transaction
�e second prong of section 302(a)(1) demands “an articulable nexus or
substantial relationship between the business transaction and the claim asserted.” Spin
Master, 463 F. Supp. 3d at 364 (internal quotation marks and citation omitted). “�is
inquiry is relatively permissive and does not require causation, but merely a relatedness
between the transaction and the legal claim such that the latter is not completely
unmoored from the former, regardless of the ultimate merits of the claim.” Al Rushaid v.
Pictet & Cie, 68 N.E.3d 1, 11 (N.Y. 2016) (internal quotation marks and citations
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omitted). In other words, “[t]he claim need only be in some way arguably connected to
the transaction.” Id. (internal quotation marks and citation omitted).
Don Roberto argues that Velazquez merely went to the Website, “saw an alleged
ADA violation and sued,” which does not provide an adequate connection between the
claim asserted and Don Roberto’s activities in New York. Doc. 17 at 12. It is true that
Velazquez did not complete a transaction, but he attempted to access the Website to make
a purchase. Doc. 15 ¶ 27 (alleging that Velazquez visited the Website twice to purchase a
ring but encountered several issues). �at is sufficient under New York law. See Sanchez
v. NutCo, Inc., No. 20-cv-10107 (JPO), 2022 WL 846896, at *4 (S.D.N.Y. Mar. 22, 2022)
(finding that case arose from a business transaction because plaintiff alleged that he
“attempted to access the Website to make a purchase”); Quezada, 2021 WL 5827437, at
*7 (similar).
Furthermore, Velazquez alleges that the Website’s “access barriers effectively
denied [Velazquez] the ability to use and enjoy [the Website] the same way sighted
individuals do.” Doc. 15 ¶ 32. �at allegation of discrimination creates the required
nexus or substantial relationship between the business transaction and the claim asserted.
See Dicks, 2023 WL 2775830, at *5 (“�is allegedly discriminatory conduct, transacting
with sighted individuals but not with visually impaired individuals, is what forms the
basis of Plaintiff’s claims against Defendant. . . . [S]uch allegations create the articulable
nexus or substantial relationship between the business transaction and the claim
asserted.” (internal quotation marks and citation omitted)); Romero v. 88 Acres Foods,
Inc., 580 F. Supp. 3d 9, 16 (S.D.N.Y. 2022) (“Defendant’s transactions . . . have a
substantial relationship with the claim asserted—that Defendant’s website is accessible to
sighted customers but inaccessible to visually impaired customers.”).
In arguing that the second prong of section 302(a)(1) is not satisfied, Don Roberto
primarily relies on Mercer v. Rampart Hotel Ventures, LLC, No. 19-cv-3551 (PAE)
(GWG), 2020 WL 236843 (S.D.N.Y. Jan. 16, 2020), report and recommendation
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adopted, 2020 WL 882007 (S.D.N.Y. Feb. 24, 2020). In that case, the plaintiff visited a
hotel’s website but “was unable to learn about the accessible features of the hotel.” Id. at
*2. �e plaintiff alleged that the defendant had engaged in business transactions by
booking hotel reservations with other New York residents. Id. at *5. But the court
concluded that those transactions could not satisfy the “arising out of” prong because
they “did not cause plaintiff harm and plaintiff’s specific claim in this case does not arise
out of those transactions.” Id.
�e Court is more persuaded, however, by decisions holding that the second
prong of section 302(a)(1) is satisfied by allegations that the plaintiff attempted to access
the defendant’s website to make a purchase. See Sanchez, 2022 WL 846896, at *4;
Quezada, 2021 WL 5827437, at *7. As other courts have explained, the fact that a
plaintiff’s claim “arises from her inability to transact with [the defendant] as a result of
the alleged discrimination . . . is not a bar to exercising personal jurisdiction.” Campbell
v. Gallery Model Homes, Inc., No. 22-cv-9947 (AT), 2024 WL 1076541, at *3 (S.D.N.Y.
Mar. 12, 2024). In those circumstances, the plaintiff is “harmed by [the defendant’s]
transactions with [other] New York customers.” Id. (second alteration in original)
(citation omitted). Here too, Don Roberto offers products on the Website to New York
customers—“but only to those customers who are not legally blind and can navigate the
Website,” id. (citation omitted). Don Roberto’s transactions thus have a substantial
relationship to Velazquez’s claim. See id.; see also Guglielmo v. JEGS Auto., Inc., No.
20-cv-5376 (LJL), 2021 WL 1026168, at *5 (S.D.N.Y. Mar. 17, 2021) (“If, at the time of
the filing of this action, Defendant was selling products through its Website to New York
customers and at the same time displaying the Website to Plaintiff but denying him the
access other New York customers had to purchase products, those facts would help to
establish personal jurisdiction and create the articulable nexus or substantial relationship
between the business transaction and the claim asserted.” (internal quotation marks and
citation omitted)).
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�erefore, the Court may exercise personal jurisdiction pursuant to section
302(a)(1) of the New York long-arm statute.
Due Process
�e due process test for personal jurisdiction has two parts. Waldman v. Palestine
Liberation Org., 835 F.3d 317, 331 (2d Cir. 2016). First, the “minimum contacts”
analysis evaluates whether the defendant has “sufficient minimum contacts with the
forum to justify the court’s exercise of personal jurisdiction over the defendant.” Id.
Second, the “reasonableness” inquiry asks whether the exercise of personal jurisdiction
over the defendant “comports with traditional notions of fair play and substantial justice
under the circumstances of the particular case.” Id. (internal quotation marks and citation
omitted).
“�e requisite ‘minimum contacts’ analysis ‘overlaps significantly’ with New
York’s § 302(a)(1) inquiry into whether a defendant transacted business in the State.”
Minnie Rose LLC v. Yu, 169 F. Supp. 3d 504, 515 (S.D.N.Y. 2016) (citation omitted).
“[T]he Second Circuit has noted that it would be a ‘rare’ case where personal jurisdiction
is proper pursuant to New York’s long-arm but not pursuant to a due process analysis.”
Romero, 580 F. Supp. 3d at 16 (quoting Eades, 799 F.3d at 168). Here, since the record
indicates that Don Roberto has “purposefully availed itself of New York as a forum,” the
Court also holds that Don Roberto has “the requisite minimum contacts with New York”
for purposes of the due process analysis. See id. at 17 (reaching similar conclusion).
As for the reasonableness inquiry, the relevant considerations include: “(1) the
burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of
the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient
and effective relief; (4) the interstate judicial system’s interest in obtaining the most
efficient resolution of the controversy; and (5) the shared interest of the states in
furthering substantive social policies.” Id. With respect to the first factor, although
litigating in New York may impose a burden on Don Roberto because its offices are
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located in California, Doc. 17-1 ¶ 4, and courts find that litigating across the country is a
significant burden, Global Edge Design Inc. v. Michel, No. 20-cv-9654 (PKC), 2021 WL
1549990, at *5 (S.D.N.Y. Apr. 20, 2021), the burden is outweighed by the other factors.
See Quezada, 2021 WL 5827437, at *7 (“Although litigating in New York may impose a
burden on [the defendant], the burden is outweighed by the other factors.”). �e second
and third factors weigh in favor of exercising personal jurisdiction because New York has
an interest in the resolution of the dispute, see id., and Velazquez “has an interest in
adjudicating his case where he resides,” Romero, 580 F. Supp. 3d at 17. �e final two
factors are neutral. In weighing the fourth factor—concerning efficient resolution of the
controversy—“courts consider where witnesses and evidence are likely to be located.”
Schottenstein v. Schottenstein, No. 04-cv-5851 (SHS), 2004 WL 2534155, at *10
(S.D.N.Y. Nov. 8, 2004). Documentary evidence and potential witnesses in this case are
likely to be located in both California and New York, making this factor neutral. See id.
With respect to the final factor, the parties have not identified “any substantive social
policies that would be furthered by permitting this case to be heard” in either California
or New York. See id. In sum, the “reasonableness” inquiry favors the exercise of
jurisdiction in New York. See generally Campbell, 2024 WL 1076541, at *4 (“As other
courts in this District adjudicating similar matters have held, the constitutional floor has
been met, and the exercise of personal jurisdiction over [the defendant] is reasonable.”).
Don Roberto’s motion to dismiss for lack of personal jurisdiction is denied.
B. Venue
�e federal venue statute provides that “[a] civil action may be brought in”:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any
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defendant is subject to the court’s personal jurisdiction with respect
to such action.
28 U.S.C. § 1391(b). Because Don Roberto “is not a resident of New York, § 1391(b)(2)
is most relevant here.” Dicks, 2023 WL 2775830, at *5.
�e Second Circuit has laid out a two-part inquiry to determine whether venue is
appropriate under § 1391(b)(2). “First, a court should identify the nature of the claims
and the acts or omissions that the plaintiff alleges give rise to those claims. Second, the
court should determine whether a substantial part of those acts or omissions occurred in
the district where suit was filed . . . .” Daniel v. Am. Bd. of Emergency Med., 428 F.3d
408, 432 (2d Cir. 2005) (internal citation omitted).
Don Roberto asserts that courts must assess where the defendant’s acts or
omissions occurred when conducting the venue analysis. Doc. 17 at 16; see Daniel, 428
F.3d at 432 (“[I]n most instances, the purpose of statutorily defined venue is to protect the
defendant against the risk that a plaintiff will select an unfair or inconvenient place of
trial.” (quoting Leroy v. Great W. United Corp., 443 U.S. 173, 183–84 (1979))). �e
Second Circuit has “caution[ed] district courts to take seriously the adjective
‘substantial’” and to “construe the venue statute strictly.” Gulf Ins., 417 F.3d at 357.
Don Roberto argues that it has “no particular connection to . . . this District other
than the mere happenstance that [Velazquez] accessed the website from New York,” Doc.
17 at 18, and relies on two out-of-circuit opinions to support its claim that venue is
improper, id. at 18–20. However, courts in this District have found venue to be proper
under § 1392(b)(2) where the plaintiff, “who resides in the Southern District of New
York, alleges that she accessed and attempted to utilize, on a number of occasions[,]
Defendant’s website from within this Judicial District.” Dicks, 2023 WL 2775830 at *6
(internal quotation marks and citation omitted); see also Young v. Metro. Learning Inst.,
Inc., No. 22-cv-1722 (JPO), 2023 WL 1928001, at *2 n.2 (S.D.N.Y. Feb. 10, 2023)
(“Plaintiff alleges that he accessed Defendant’s website from his computer while located

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within the Southern District. Because the events giving rise to Plaintiff’s claim occurred
within the Southern District, venue is proper here.”).
In this case, Velazquez alleges that he “attempted to utilize, on a number of
occasions, the subject Website within this Judicial District.” Doc. 15 ¶ 8. Velazquez’s
attempts to access the Website are the acts that give rise to his claim, and a substantial
part of those acts occurred in this District, where the suit was filed. “Put differently, it
was in this District that [Velazquez] encountered and suffered the effects of [Don
Roberto’s] allegedly unlawful discrimination.” See Dicks, 2023 WL 2775830, at *6. �e
Court thus finds that venue is proper in this District.
IV.

CONCLUSION
For the foregoing reasons, Don Roberto’s motion to dismiss is DENIED. �e

parties are directed to appear for a telephonic initial pretrial conference on April 25, 2024,
at 10:00 a.m. �e parties should dial 877-411-9748 and enter access code 3029857#
when prompted.
�e Clerk of Court is respectfully directed to terminate the motion, Doc. 16.
It is SO ORDERED.
Dated:

March 27, 2024
New York, New York
EDGARDO RAMOS, U.S.D.J.

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