Thorne v. American Dairy Queen Corporation
- James Oetken
- 1:19-cv-09933
- U.S. District Court · Southern District of New York
- 7
In Thorne v. American Dairy Queen, Judge Oetken found standing but granted dismissal because the complaint did not state a disability-discrimination claim.
The ruling affected Braulio Thorne’s federal disability-discrimination claim against American Dairy Queen Corporation and left his New York state and city claims undecided after the court declined jurisdiction over them.
What happened
Braulio Thorne, who is legally blind, alleged that American Dairy Queen Corporation discriminated against him and other visually impaired people by not offering gift cards with Braille. He said he could not independently use or identify the cards and brought claims under the Americans with Disabilities Act and New York state and city laws.
Dairy Queen argued that Thorne lacked the required legal connection to sue and that his complaint did not state a valid claim. The court found that Thorne had adequately alleged past harm, an expectation that the problem would continue, and an intention to return. But it ruled that a gift card is a product that Dairy Queen did not have to modify under the disability law, and that Thorne had not alleged that he sought or asked about another adequate aid or service.
Judge James Oetken denied the original dismissal motion as moot, denied the new motion challenging standing, and granted the new motion based on failure to state a claim. The court declined to decide Thorne’s remaining state-law claims and directed him to explain, by October 30, 2020, how a second amended complaint could fix the deficiencies.
The detailed version
- Thorne v. American Dairy Queen Corporation · No. 1:19-cv-09933
- James Oetken
- Oct. 14, 2020
Background
Braulio Thorne, who is legally blind and requires Braille to read written material, sued American Dairy Queen Corporation under Title III of the Americans with Disabilities Act of 1990 and New York state and city law. Thorne alleged that he had previously visited a Dairy Queen restaurant, intended to return, and called Dairy Queen’s customer service office on October 23, 2019, to ask whether it sold gift cards containing Braille. An employee told him that Dairy Queen did not sell them.
Thorne alleged that, without an effective aid for the physical cards, visually impaired people could not independently access information needed to use the cards or distinguish them from other cards. He claimed this denied him full and equal access to Dairy Queen’s products and services.
Dairy Queen’s Motion
Dairy Queen moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Thorne lacked standing, and under Rule 12(b)(6), arguing that the complaint failed to state a claim. Thorne opposed the motion and alternatively requested permission to amend his complaint again.
Standing
The court held that Thorne adequately pleaded standing. It found that his allegations showed a past injury because he asked about Braille gift cards and was told they were unavailable. The court also found it reasonable to infer that the alleged discrimination would continue and that Thorne intended to return to Dairy Queen. The court stated that Thorne did not have to request a Braille gift card after being told that one was unavailable because the request would have been obviously futile.
Americans with Disabilities Act Claim
The court then reached the claim’s legal sufficiency. Relying on its reasoning in a prior related proceeding, the court held that a Braille gift card is a “good,” or product, that Dairy Queen did not have to modify under the Americans with Disabilities Act. The court also held that Thorne’s failure to allege that he sought or asked about another adequate aid or service for communicating the gift-card information was fatal to his claim. The court therefore concluded that the Americans with Disabilities Act claim failed.
State-Law Claims
Because the federal claims were dismissed, the court declined to exercise its supplemental jurisdiction—that is, its authority to hear related state-law claims—over Thorne’s remaining New York state and city claims. The court did not decide those claims on their merits.
Leave to Amend and Disposition
The court did not grant unconditional permission to file another amended complaint. Instead, it directed Thorne, if he still wished to amend, to file by October 30, 2020, a letter motion explaining how a second amended complaint could state a valid claim and identifying additional facts showing that Dairy Queen failed to provide aids or services ensuring effective communication of the gift-card information. He also had to attach a draft of the proposed complaint showing the changes.
The court denied as moot Dairy Queen’s original motion to dismiss at Docket Number 12, denied Dairy Queen’s new motion to dismiss for lack of standing, and granted Dairy Queen’s new motion to dismiss for failure to state a claim. The Clerk was directed to close the original motion.
Read the full 7-page opinion on CourtListener, the free public archive maintained by the Free Law Project.