Tucker v. Abercrombie & Fitch Co.
- Paul Gardephe
- 1:19-cv-10032
- U.S. District Court · Southern District of New York
- 9
In Tucker v. Abercrombie & Fitch, Judge Gardephe dismissed the action without prejudice because Tucker did not establish standing to challenge inaccessible gift cards.
Henry Tucker’s federal disability claim and his related New York State and New York City human-rights claims were dismissed without prejudice; the opinion does not decide whether Abercrombie’s gift cards violated those laws.
What happened
In Tucker v. Abercrombie & Fitch, Henry Tucker alleged that Abercrombie & Fitch’s gift cards were not accessible to legally blind people. He brought claims under the Americans with Disabilities Act, New York’s human-rights law, and New York City’s human-rights law.
The court found that Tucker had not plausibly shown a concrete injury or a real and immediate threat of future injury. His complaint said he had contacted Abercrombie about Braille gift cards and intended to buy one when accessible cards became available, but it did not say that he had previously visited an Abercrombie store, which store he visited, what he bought, or why he wanted the card.
Judge Paul G. Gardephe adopted Magistrate Judge Ona Wang’s recommendation, dismissed the federal disability claim for lack of standing, declined to hear the remaining state and city claims, and ordered that the action be dismissed without prejudice.
The detailed version
- Tucker v. Abercrombie & Fitch Co. · No. 1:19-cv-10032
- Paul Gardephe
- Apr. 22, 2024
Background
Henry Tucker sued Abercrombie & Fitch Co. on behalf of himself and similarly situated people. He alleged that the company’s gift cards were inaccessible to legally blind people. The complaint asserted claims under the Americans with Disabilities Act of 1990, the New York State Human Rights Law, and the New York City Human Rights Law. It sought a declaration, orders requiring accessible gift cards, and compensatory damages under the state and city laws.
The case was stayed while related gift-card cases proceeded. In those cases, the Second Circuit held that similar allegations did not adequately show that the plaintiffs intended to return to the stores and therefore did not establish standing. After the stay was lifted, Magistrate Judge Ona Wang ordered Tucker to explain why his case should not be dismissed for lack of standing. Tucker did not respond. Judge Wang recommended dismissal, and neither party objected.
Legal standard
Standing is the requirement that a plaintiff show a sufficient personal injury for a federal court to decide the dispute. For a claim seeking an order requiring future changes, the plaintiff must plausibly allege a past injury, a reasonable likelihood that the discriminatory treatment will continue, and an intention to return that creates a real and immediate threat of future injury. A bare statement that the plaintiff intends to return is not enough.
Because no party objected to the magistrate judge’s report and recommendation, Judge Gardephe reviewed the record for clear error rather than conducting a full new review. He also noted that courts must consider standing even when the parties do not raise it.
Court’s analysis
The complaint alleged that, on October 26, 2019, Tucker asked whether Abercrombie sold Braille gift cards and was told that it did not. The complaint also alleged that Tucker intended to purchase an accessible gift card as soon as one became available and that accessible cards would allow blind and visually impaired people to use them independently.
The court found these allegations too conclusory. Tucker did not allege that he had previously been a customer at an Abercrombie store, identify any store he had visited, describe what he had purchased, or explain whether he wanted the gift card for himself or as a gift. The court concluded that the complaint did not plausibly allege a concrete and particularized injury in fact.
Disposition
The court dismissed Tucker’s Americans with Disabilities Act claim for lack of standing. Because that was the only federal claim, the court declined to exercise supplemental jurisdiction over the remaining New York State Human Rights Law and New York City Human Rights Law claims. Judge Gardephe adopted Judge Wang’s report and recommendation in its entirety, ordered that the action be dismissed without prejudice, and directed the Clerk of Court to close the case. The opinion explains that dismissal for lack of constitutional standing cannot be with prejudice and that the state and city claims were dismissed without prejudice so they could be pursued in state court.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.