Calcano v. The Art of Shaving-FL, LLC

Background

The Art of Shaving–FL, LLC sold prepaid store gift cards that could be used at its stores. On November 1, 2019, Marcos Calcano called the company’s customer service office and asked whether it sold Braille gift cards. An employee said that it did not and did not offer alternative assistance during the call. Calcano later unsuccessfully tried to find accessible gift cards himself.

According to the first amended complaint, the lack of an accessible gift card deterred Calcano from fully and equally using or enjoying the retailer’s goods and services. He alleged that he intended to buy an accessible gift card as soon as one became available. He sued under the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law. He sought damages, an injunction requiring changes to the retailer’s policies and practices, and attorney’s fees.

The retailer moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which allows dismissal when the court lacks authority to hear a claim, and Rule 12(b)(6), which allows dismissal when a complaint does not adequately state a legal claim.

Court’s Analysis

The court held that Calcano did not provide sufficient evidence that he intended to return to the retailer’s store. This issue concerns standing, meaning the plaintiff’s legal ability to bring a claim in federal court. The court explained that intent to return depends on facts such as the frequency of prior visits, the distance to the defendant’s services, and the plaintiff’s travel habits or occupation.

The court found that Calcano’s allegations were too general. Although he alleged that he lived in the Bronx, had previously been a customer, and intended to buy an accessible gift card when available, he did not allege facts such as frequent purchases of hand-crafted razors or other shaving accessories. The court also observed that the Bronx was not close to the retailer’s location at Columbus Circle.

The court further stated that the Americans with Disabilities Act claim would fail under Rule 12(b)(6) for the reasons discussed in a prior related proceeding. It concluded that the complaint and briefing did not contain substantive differences requiring a different result.

Because the court would dismiss the federal claim, it did not conduct a substantive analysis of the New York state and city claims. Instead, it stated that it would decline to exercise supplemental jurisdiction, meaning authority to decide related state-law claims in the same case.

Disposition

The court granted the defendant’s motion to dismiss. It allowed Calcano 15 days to file a second amended complaint alleging additional facts about his interactions with The Art of Shaving. If he did not file an amended complaint within that period, the court stated that it would enter a final judgment of dismissal and close the case. The clerk was directed to terminate the pending motion.