Calcano v. The Art of Shaving-FL, LLC, No. 1:2019cv10432 - Document 24 (S.D.N.Y. 2020)
Court Description: MEMORANDUM OPINION AND ORDER re: 20 MOTION to Dismiss Plaintiff's Amended Complaint filed by The Art of Shaving-FL, LLC. This case is indistinguishable from Banana Republic. It should therefore come as no surprise that the Court comes to the exact same conclusion. For these reasons, Defendant's motion to dismiss is GRANTED. Within fifteen days, Plaintiff may file a second amended complaint to cure the deficiencies articulated in this opinion by a lleging additional facts about the interactions he has had with The Art of Shaving. If no amended complaint is filed within that time frame, the Court will enter a final judgment of dismissal and direct the Clerk of Court to close this case. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 20. (Signed by Judge Gregory H. Woods on 4/26/2020) (mro)
Download PDF
<![CDATA[
Calcano v. The Art of Shaving-FL, LLC UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------------X MARCOS CALCANO, on behalf of all other persons : similarly situated, : : Plaintiff, : -against: : THE ART OF SHAVING – FL, LLC, : : Defendant. : ------------------------------------------------------------------X Doc. 24 USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: ________________ DATE FILED: 4/27/2020 1:19-cv-10432-GHW MEMORANDUM OPINION AND ORDER GREGORY H. WOODS, United States District Judge: This is another case where a visually impaired person has sued a retailer for failing to stock Braille or otherwise accessible gift cards. Because this complaint suffers from the same pitfalls as those in Dominguez v. Banana Republic, LLC, No. 1:19-CV-10171-GHW, 2020 WL 1950496 (S.D.N.Y. Apr. 23, 2020), the Court comes to the same conclusion and GRANTS Defendant’s motion to dismiss. I. BACKGROUND Like the allegations in Banana Republic, the facts presented in the complaint are relatively straightforward. The Art of Shaving – FL, LLC (“Defendant” or “The Art of Shaving”), like many other retail businesses, offers consumers the opportunity to purchase “pre-paid cash cards, colloquially referred as ‘store gift cards,’” that can be used in place of cash at its stores. First Amended Complaint (“FAC”), Dkt. No. 17, ¶¶ 4 & n.1. Though they look and feel like credit cards, see FAC ¶ 35, they are redeemable only at “a specified merchant or affiliated merchants.” FAC ¶ 29 & n.3. On November 1, 2019, Marcos Calcano (“Plaintiff”) called The Art of Shaving’s customer service office to ask whether the store sold Braille gift cards. See FAC ¶ 16. An employee told him Dockets.Justia.com that The Art of Shaving did not. See FAC ¶ 16. During that call, the employee did not offer Plaintiff any alternative auxiliary aids or services. See FAC ¶ 17. Sometime later, Plaintiff unsuccessfully attempted to locate accessible The Art of Shaving gift cards on his own. See FAC ¶ 18. The lack of an accessible gift card deterred Plaintiff from “fully and equally us[ing] or enjoy[ing]” the “facilities, goods, and services Defendant offers to the public at its retail stores.” FAC ¶ 43. As soon as accessible gift cards are available, however, “Plaintiff intends to immediately go purchase” one. FAC ¶ 46. Plaintiff sued The Art of Shaving under the ADA, the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq., and New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq., seeking compensatory damages, punitive damages, and a permanent injunction to “cause a change in Defendant’s corporate policies, practices, and procedures so that Defendant’s store gift cards will become and remain accessible to blind and visually-impaired consumers,” and, of course, attorney’s fees. The Art of Shaving moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). II. ANALYSIS The Court refers the reader to the legal standard articulated in Part II of Banana Republic, 2020 WL 1950496, at *2. The discussion and application of the law there applies in equal force in here. Because the Plaintiff here has failed to provide the Court with sufficient evidence of his intent to return to The Art of Shaving, he, like the plaintiff in Banana Republic, lacks standing to assert his ADA claim. There is virtually no difference between the two complaints: like Dominguez, Calcano generically asserts that he resides “in Bronx, NY, and close to Defendant’s retail store located at 10 Columbus Circle, New York, NY,” and “has been a customer at Defendant’s store on prior occasions and intends to immediately purchase at least one store gift card 2 from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind and utilize it at Defendant’s retail store.” FAC ¶¶ 21, 25. The intent-to-return inquiry, as explained in Banana Republic, is a “highly fact-sensitive inquiry that incorporates a range of factors” such as “the frequency of the plaintiff's past visits” and “the proximity of the defendant’s services, programs, or activities to the plaintiff's home” along with any other factors “relevant to the calculation” including the plaintiff's “occupation or demonstrated travel habits.” Bernstein v. City of New York, 621 F. App’x 56, 59 (2d Cir. 2015) (citing Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187–88 (2d Cir. 2013) (per curiam) and Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d. Cir. 2008)). Since the Court may “refer to evidence outside the pleadings” when adjudicating a Rule 12(b)(1) motion, see Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000), the Court notes that the Bronx is not very close to Columbus Circle at all. Of course, distance is relative, but Columbus Circle is located at the southwest corner of Central Park in Manhattan, whereas the Bronx is a separate borough of New York City located to the northeast and east of Manhattan, across the Harlem River. Regardless, Calcano never asserts, for instance, that he frequently purchases handcrafted razors and other shaving accessories. See Banana Republic, 2020 WL 1950496, at *4. Plaintiff’s ADA claim would also fail under Rule 12(b)(6) for all of the reasons identified in Banana Republic. See 2020 WL 1950496, at *5–12. Indeed, there are no substantive differences between either the complaint or the briefing in this case and Banana Republic that would compel a different conclusion. Calcano has even made similar errors in his opposition as the plaintiff in Banana Republic: he addresses arguments and cases that Defendant never raised in his motion, see Plaintiff’s Opposition (“Opp’n”), Dkt. No. 22, at 22, and repeatedly describes the phone call with Defendant as having taken place on October 29, 2019, even though the First Amended Complaint alleges that the call took place on November 1, 2019, see Opp’n at 2, 7, 11. Because the Court would dismiss Plaintiff’s ADA claims, it need not engage in a substantive analysis of the merits of Plaintiff’s NYSHRL and NYCHRL claims; this Court would decline to 3 exercise supplemental jurisdiction over Plaintiff’s state and city claims. See Banana Republic, 2020 WL 1950496, at *5, 12. III. CONCLUSION This case is indistinguishable from Banana Republic. It should therefore come as no surprise that the Court comes to the exact same conclusion. For these reasons, Defendant’s motion to dismiss is GRANTED. Within fifteen days, Plaintiff may file a second amended complaint to cure the deficiencies articulated in this opinion by alleging additional facts about the interactions he has had with The Art of Shaving. If no amended complaint is filed within that time frame, the Court will enter a final judgment of dismissal and direct the Clerk of Court to close this case. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 20. SO ORDERED. Dated: April 26, 2020 _____________________________________ GREGORY H. WOODS United States District Judge 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
