Calcano v. Alamo Drafthouse Cinemas, LLC

Background

Evelina Calcano, who is legally blind and proficient at reading braille, alleged that Alamo Drafthouse Cinemas, LLC violated Title III of the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law by failing to offer braille gift cards. Alamo moved to dismiss the First Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), which address jurisdictional defects and failure to state a legally sufficient claim.

The court stated that the allegations were nearly identical to those in a prior related opinion involving another business and relied substantially on that opinion’s legal analysis. For purposes of the motion, the court assumed the complaint’s factual allegations were true.

Standing

The court held that Calcano had standing at this stage. The complaint alleged a past injury because Calcano encountered a barrier when she requested and was denied a braille gift card and was not offered an auxiliary aid. It also alleged that an employee said Alamo did not sell braille gift cards, supporting the allegation that Alamo was not in the practice of selling them. Finally, Calcano alleged that she had previously been a customer and intended to buy a gift card as soon as Alamo sold gift cards accessible to blind customers. The court found those allegations sufficient for standing.

Sufficiency of the ADA Claim

The court held that the ADA did not require Alamo to offer braille gift cards. The statute requires a public accommodation to modify its policies, practices, or procedures so that its goods and services are available to people with disabilities, but the court concluded that it does not require the business to modify the goods or services themselves. The court also relied on the regulation and related Department of Justice commentary stating that an entity is not required to alter its inventory to include accessible or special goods. Because gift cards were goods in Alamo’s inventory, the court held that Alamo had no ADA duty to provide them in braille.

The court rejected Calcano’s argument that the gift cards themselves were places of public accommodation. It reasoned that the ADA lists categories of private entities considered public accommodations, such as facilities that provide goods or services, and that gift cards did not resemble any listed category.

The complaint also alleged that, without an auxiliary aid or service, Calcano could not determine important information such as a gift card’s balance, terms and conditions, or identification number, and could not distinguish Alamo’s cards from cards issued by other stores. The court recognized that the ADA requires information to be made accessible when necessary to prevent unequal treatment. However, it held that the complaint did not adequately allege that Alamo failed to offer an auxiliary aid or service. Calcano alleged only that she asked whether Alamo sold braille gift cards, and did not allege a conversation about other possible aids or services. The allegation that Alamo did not offer auxiliary aids was deemed conclusory and unsupported by factual allegations.

State-Law Claims and Leave to Replead

After dismissing the federal claim, the court declined to exercise supplemental jurisdiction, meaning jurisdiction over the related state-law claims, because the case was at an early stage and the federal claims had been eliminated. The court dismissed the First Amended Complaint but allowed Calcano to seek leave to file a Second Amended Complaint within 14 days. Any new complaint could not repeat the theory that Alamo was required to offer braille gift cards. It could instead attempt to allege additional facts showing that Alamo did not provide auxiliary aids or services that effectively communicated gift-card information to blind customers.

Disposition

Judge Lorna G. Schofield granted Alamo’s motion to dismiss. The opinion did not state that the dismissal was with or without prejudice. It directed Calcano to submit a letter by July 2, 2020, explaining how a Second Amended Complaint could state a claim and attaching a marked draft. If she did not timely submit the letter, the court stated that it would enter final judgment of dismissal and direct the Clerk of Court to close the case.