ANGELA WAHAB v. WHITE BOOTS INC (2024)

REPORT AND RECOMMENDATION

Plaintiff Angela Wahab (“Plaintiff” or “Wahab”) brings this putative class action pursuant to Title III of the Americans with Disabilities Act (“ADA”) and the New York City Human Rights Law (“NYCHRL”), claiming that a website operated by Defendant White's Boots, Inc. (“Defendant” or “White's Boots”) is inaccessible to visually impaired persons. Defendant has filed a motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).

For the reasons set forth below, the undersigned respectfully recommends that (1) Defendant's motion to dismiss be GRANTED; and (2) Plaintiff be given an opportunity to amend her Complaint.

BACKGROUND

A. Plaintiff's Allegations

As alleged, Plaintiff is a visually impaired and legally blind person who uses screen-reading software to navigate Internet websites. (Compl. ¶¶ 2, 14). Defendant is an “online retailer for handcrafted high-quality boots” and maintains and operates www.whitesboots.com (the “Website”). (Id. ¶¶ 4, 24). Defendant offers, through its Website, “a rich collection of work boots, hiking boots, [and] fire boots, made from fine leather and hardwoods.” (Id. ¶ 24).

Wahab initially came across Defendant's Website via a Google search. (Id. ¶ 23). She had been “looking for leather boots for the cold season,” and wanted to find “handcrafted boots from natural materials.” (Id. ¶ 22). The Complaint states that Plaintiff's “previous pairs of the same type” of handmade natural boots were “very comfortable and durable.” (Id.). In particular, Plaintiff wanted to buy boots from Defendant's Website because Defendant is “renowned for craftmanship, durability, and attention to detail.” (Id. ¶ 24).

Plaintiff visited the Website on September 28, 2023 and September 30, 2023 to buy “Women's Line Scout Lace-to-Toe boots” on the Website. (Id. ¶¶ 20-21). However, Plaintiff claims that, on both occasions, she did not complete her purchase of these boots because she “encountered barriers” and could not “understand and properly interact with the Website,” denying her “full and equal access to Defendant's online goods, content, and services.” (Id. ¶¶ 20, 25-26).

More specifically, the Complaint explains that Wahab uses a “popular screen-reading software program” called “NonVisual Desktop Access,” or NVDA. (Id. ¶ 33). Plaintiff cannot use a computer without the assistance of such software, and she was using it when she attempted to buy the Lace-to-Toe boots on both September 28, 2023 and September 30, 2023. (Id. ¶ 40). However, the Website “contain[ed] access barriers” that prevented Plaintiff's “free and full use” of the Website, including but not limited to: “missing alt-text, hidden elements on web pages, incorrectly formatted lists, unannounced pop ups, unclear labels for interactive elements, and the requirement that some events be performed solely with a mouse.” (Id. ¶ 43). The Website also allegedly “contained a host of broken links,” which impedes a visually impaired person's ability to navigate a website by acting as a virtual dead-end whereby a screen-reading user cannot “get back to the original search.” (Id. ¶ 44).

Despite the harm and frustration that Wahab experienced, if Defendant remediates these barriers, “Plaintiff intends to attempt to access the Website in the future ․ to purchase ․ the Women's Line Scout Lace-to Toe boots.” (Id. ¶ 30; see also id. ¶ 46).

Based on the foregoing allegations, the Complaint asserts three causes of action. First, Plaintiff alleges that Defendant has violated Title III of the ADA, 42 U.S.C. § 12182 et seq., by operating a place of public accommodation, i.e., the Website, in a manner that discriminates against individuals with disabilities. (Id. ¶¶ 65-72). Second, Plaintiff claims that Defendant has engaged in an unlawful discriminatory practice in violation of the NYCHRL, N.Y.C. Administrative Code § 8-107(4)(a). (Id. ¶¶ 73-85). Plaintiff's third cause of action is styled as a claim for declaratory relief seeking a declaration of the parties’ “respective rights and duties.” (Id. ¶¶ 86-88). Plaintiff seeks preliminary and permanent injunctive relief, declaratory relief, compensatory damages, and an award of attorneys’ fees, among other relief. (Id. at 20-21).

B. Procedural History

Plaintiff, proceeding on behalf of herself and all others similarly situated, initiated this action on October 13, 2023 by filing the Complaint. (Dkt. No. 1). Defendant waived service thereof, extending its time to respond to December 22, 2023. (Dkt. No. 5; see also Fed. R. Civ. P. 4(d)(3)). On that date, Defendant filed the instant motion to dismiss along with an accompanying memorandum of law. (Dkt. Nos. 9 & 10 (“Motion” or “Mot.”)). Attached to Defendant's memorandum of law is a Declaration from Robert Kingett, a legally blind person who was hired by Defendant to test the validity of Plaintiff's claims that the Website is inaccessible.¹ (Dkt. No. 10 Ex. A (“Kingett Declaration” or “Kingett Decl.”)). Defendant's motion argues both that: (1) Plaintiff lacks standing to bring this action because she fails to adequately allege an injury-in-fact; and (2) Plaintiff's claims are moot because the Kingett Declaration shows that a visually impaired person can purchase the boots Plaintiff alleges she was unable to purchase. (Mot. at 6).

Plaintiff submitted a brief in opposition to Defendant's motion to dismiss on January 26, 2024 (Dkt. No. 16 (“Opposition” or “Opp.”)), and Defendant submitted a reply brief on February 16, 2024. (Dkt. No. 17 (“Reply”)). About a month after the parties’ briefing was completed, the Honorable Jennifer H. Rearden referred this matter to the designated Magistrate Judge for all purposes except trial, including general pretrial management and dispositive motions. (Dkt. No. 18; see also Docket Entry dated March 21, 2024).

LEGAL STANDARDS

A. Motion to Dismiss for Lack of Subject-Matter Jurisdiction

1. Federal Rule of Civil Procedure 12(b)(1)

“A Rule 12(b)(1) motion challenging subject matter jurisdiction may be based solely on the complaint or may rely on evidence beyond the pleadings.” Thorne v. Cap. Music Gear LLC, No. 23 Civ. 776 (LGS), 2024 WL 1604273, at *2 (S.D.N.Y. Apr. 12, 2024) (citing Harty v. W. Point Realty, Inc., 28 F.4th 435, 441 (2d Cir. 2022)). “ ‘In resolving a motion to dismiss under Rule 12(b)(1), the district court must take all uncontroverted facts in the complaint ․ as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.’ ” Id. (quoting Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016)). “However, the Court ‘need not credit a legal conclusion couched as a factual allegation or a naked assertion devoid of further factual enhancement.’ ” Feliz v. IHealth Labs Inc., No. 23 Civ. 354 (JLR), 2024 WL 342701, at *2 (S.D.N.Y. Jan. 30, 2024) (quoting Calcano v. Swavorski N. Am. Ltd., 36 F.4th 68, 75 (2d Cir. 2022) (additional citation omitted)). Further, where “jurisdictional facts are placed in dispute” a reviewing court must “decide issues of fact by reference to evidence outside the pleadings, such as affidavits.” Harty, 28 F.4th at 441 (citation omitted). “ ‘A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.’ ” Thorne, 2024 WL 1604273, at *2 (quoting Fountain, 838 F.3d at 143).

2. Standing

“Under Article III of the Constitution, the jurisdiction of federal courts is limited to the resolution of ‘cases’ and ‘controversies.’ ” Maddy v. Life Time, Inc., No. 22 Civ. 5007 (LJL), 2023 WL 4364488, at *3 (S.D.N.Y. July 5, 2023) (citation omitted). To remain within this constitutional limit, “courts require that plaintiffs establish their ‘standing’ as the proper parties to bring suit.” Id. (cleaned up). Standing is “ ‘the threshold question in every federal case, determining the power of the court to entertain the suit.’ ” Life Time, Inc., 2023 WL 4364488, at *3 (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006)). In the Second Circuit, standing challenges are properly brought on a Rule 12(b)(1) motion to dismiss. See All. For Env't Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006).

“To establish constitutional standing,” a plaintiff “ ‘must show (1) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (2) that the injury was likely caused by the defendant; and (3) that the injury would likely be redressed by judicial relief.’ ” Tucker v. Abercrombie & Fitch Co., No. 19 Civ. 10032 (PGG) (OTW), 2024 WL 1715212, at *3 (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). For an injury to be “concrete,” it must be “real,” and not “abstract.” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016) (cleaned up). A complaint must plead “ ‘particularized’ ” injury such that it “ ‘affect[s] the plaintiff in a personal and individual way.’ ” Id. (quoting Lujan, 504 U.S. at 560 n.1).

Further, in the ADA context, because injunctive relief is “the only remedy available under Title III of the ADA,” a plaintiff must show that she “ ‘is likely to be harmed again in the future in a similar way,’ ” and that the “ ‘threatened injury must be certainly impending to constitute injury in fact.’ ” Thorne, 2024 WL 1604273, at *2 (quoting Calcano, 36 F.4th at 74).

3. Mootness

“For a federal court to have subject matter jurisdiction” over an action, “ ‘an actual controversy must be extant at all stages’ ” of the court's review. Tavarez v. Extract Labs, Inc., No. 21 Civ. 9916 (JPO), 2023 WL 2712537, at *2 (S.D.N.Y. Mar. 30, 2023) (quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)). If “an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point in the litigation, then the action must be dismissed as moot.” Id. (cleaned up). This rule is a “corollary to [Article III's] case-or-controversy requirement.” Genesis Healthcare Corp., 569 U.S. at 71.

Put more succinctly, the “mootness doctrine prevents federal courts from hearing matters that no longer present an actual dispute between parties.” Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 93 (2d Cir. 2003) (citation omitted). Therefore, like standing, mootness is treated as a threshold jurisdictional issue. See Logerfo v. City of N.Y., No. 17 Civ. 10 (JMA) (AYS), 2020 WL 2307649, at *5 (E.D.N.Y. May 8, 2020). “The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed.” Cheng v. Dep't of Justice, No. 23 Civ. 3983 (AT) (GS), 2024 WL 818101, at *3 (S.D.N.Y. Feb. 23, 2024) (citations omitted), R&R adopted, 2024 WL 1178986 (S.D.N.Y. Mar. 19, 2024).

DISCUSSION

The Court first addresses, and rejects, Defendant's mootness argument before turning to Defendant's standing arguments. While Plaintiff's Complaint satisfies two of the three standing requirements for ADA cases in this Circuit, the Court is unconvinced that the Complaint adequately pleads past injury for injury-in-fact purposes. For related reasons, Plaintiff's NYCHRL claim and request for declaratory relief should likewise be dismissed.

A. This Action Is Not Moot

The parties agree on the standard governing mootness in ADA cases in this Circuit (see Mot. at 16; Opp. at 4-5): “request[s] for injunctive relief ․ under the ADA[ ] will only be deemed moot by a defendant's voluntary compliance with the statute if the defendant meets the ‘formidable burden’ of demonstrating that it is ‘absolutely clear the alleged wrongful behavior could not reasonably be expected to recur.’ ” Diaz v. Kroger Co., No. 18 Civ. 7953 (KPF), 2019 WL 2357531, at *2 (S.D.N.Y. June 4, 2019) (quoting Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000)); see also id. (“ ‘[t]he voluntary cessation of allegedly illegal activity may render a case moot if the defendant can demonstrate that [i] there is no reasonable expectation that the alleged violation will recur and [ii] interim relief or events have completely and irrevocably eradicated the effects of the alleged violation’ ”) (quoting Clear Channel Outdoor, Inc. v. City of N.Y., 594 F.3d 94, 110 (2d Cir. 2010) (additional citation omitted)).

The parties’ agreement ends there, however. Defendant argues this case is moot based on the Kingett Declaration. (Mot. at 16-17). Mr. Kingett asserts that on December 5, 2023, he reviewed the Website using an NVDA screen reader and was able to locate the Lace-to-Toe boots, learn about the product, select a color and size, and complete the purchasing process “without issue.” (Kingett Decl. ¶ 6). He avers that the Website “is accessible and a visually impaired individual should be able to use the website if they actually know how to use a screen reader.” (Id. ¶ 9). In Defendant's view, this means that “no basis for Plaintiff's Complaint” exists and, hence, “the case is moot.” (Mot. at 17).

Plaintiff vigorously disputes the sufficiency of these arguments. Specifically, Plaintiff argues that the “formidable burden” has not been met for a host of reasons: (1) under the voluntary cessation doctrine, the stoppage “of challenged conduct does not ordinarily render a case moot,” Knox v. Serv. Emp. Int'l Union, Local 1000, 567 U.S. 298, 307 (2012); (2) Mr. Kingett is not qualified to provide a professional opinion as to whether Defendant's website is ADA compliant; (3) nothing in the Kingett Declaration specifies what steps Defendant took to change its Website after Plaintiff's Complaint; and (4) the Kingett Declaration does not address future compliance. (Opp. at 4-10).

In response to these arguments on reply, Defendant counters, inter alia, that Plaintiff's failure to provide any evidence of her own on the question of mootness should be fatal to her position on the issue. (See Reply at 5-8).

Here, Plaintiff has the better of the argument. In ADA website cases, “courts in this District have ruled that a sworn statement by a company official with direct knowledge of the allegations describing the steps taken to remedy the violations and the measures in place going forward to prevent future violations is sufficient grounds for determining the violations have been cured and are extremely unlikely to recur.” Toro v. Medbar Corp., No. 23 Civ. 6878 (AS) (JLC), 2024 WL 2308804, at *3 (S.D.N.Y. May 22, 2024), R&R adopted, 2024 WL 2882899 (S.D.N.Y. June 7, 2024) (collecting cases); see also Tavarez, 2023 WL 2712537, at *2 (“courts in this district have found that the defendant's burden can be met by submitting affidavits and other evidence demonstrating that the defendant has altered the website to bring it into full and permanent compliance and has no intention of regressing back to inaccessibility”) (cleaned up).

The Kingett Declaration does not even purport to make such a showing. Mr. Kingett, who is not an officer or employee of White's Boots, does not describe what steps, if any, White's Boots undertook to address or remediate the Website's supposed access barriers since Plaintiff filed her Complaint. Mr. Kingett does not assert that the Website is compliant with the generally accepted industry standard Web Content Accessibility Guidelines (“WCAG”). Nor does he describe any measures implemented by White's Boots to prevent future violations.

This case thus bears no resemblance to those cases finding that an ADA website defendant had met its “formidable burden” of demonstrating mootness. See, e.g., Toro, 2024 WL 2308804, at *3 (defendant submitted declaration from its general manager showing that it had “remedied all of the ADA violations identified by Toro in the amended complaint and contracted with a vendor ․ to ensure that the website remains complaint with the ADA and state law”); Tavarez, 2023 WL 2712537, at *3 (defendant submitted declarations from its Director of Marketing attesting, inter alia, that it had “completed a complete redesign of the website ․ to comply with WCAG 2.1,” “resolved each of the identified [accessibility] issues” alleged by plaintiff, and paid for a subscription which “continually monitors WCAG developments” and “provides 24-hour automatic maintenance scans” to ensure there are no accessibility issues) (cleaned up); Guglielmo v. Nebraska Furniture Mart, Inc., No. 19 Civ. 11197 (KPF), 2020 WL 7480619, at *5-6 (S.D.N.Y. Dec. 18, 2020) (defendant submitted declaration from its Director of E-Commerce showing that “Defendant has since remedied each of the ADA violations alleged by Plaintiff” and “intends to commence a significant redesign of the Website, of which accessibility will be a central aspect”) (cleaned up); Diaz, 2019 WL 2357531, at *3 (defendant submitted affidavit from its Group Product Design Manager showing, inter alia, that “the Website is today compliant with [the WCAG] standards,” “the specific barriers to access identified [by plaintiff] have been remedied,” and “Defendant commits to keep its website up to date and compliant with all applicable standards to make the website as accessible to all as possible”) (cleaned up).

Defendant has submitted no declaration from a company official, or any other evidence, that it took any steps either (1) to improve or remedy the Website since this action was filed; or (2) to ensure the Website remains ADA-compliant in the future. Instead, Defendant appears to dispute whether the access barriers alleged in the Complaint existed in the first place. (See Kingett Decl. ¶ 10 (questioning whether Plaintiff “knows how to use a screen reader or actually reviewed the Website”)). Defendant could be right about that. But that is an issue of fact going to the merits. It is not a genuine argument that the case has been rendered “moot.” See Chafin v. Chafin, 568 U.S. 165, 174 (2013) (rejecting mootness argument that “confuses mootness with the merits”); Cheng, 2024 WL 818101, at *7 (same); see also Hecht v. Magnanni Inc., No. 20 Civ. 5316 (MKV), 2022 WL 974449, at *4 (S.D.N.Y. Mar. 31, 2022) (rejecting mootness argument in ADA website case because, “[a]t bottom, there is a clear factual dispute ․ whether the changes would continue following termination of this lawsuit”).

In short, the Kingett Declaration is woefully insufficient on its face to establish mootness under the voluntary cessation doctrine. Thus, this action remains a live controversy.

B. Plaintiff Has Failed to Plead Standing

For over a decade, the Second Circuit has employed the same three-prong test to evaluate whether a plaintiff has suffered an injury in fact in ADA cases seeking injunctive relief (the only relief available under Title III): “(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff's visits and the proximity of defendants’ [businesses] to plaintiff's home, that plaintiff intended to return to the subject location.” Calcano, 36 F.4th at 74 (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013) (per curiam)); accord Costin v. Glens Falls Hosp., 103 F.4th 946, 952 (2d Cir. 2024). These factors, known as the Kreisler factors, govern Plaintiff's assertion of standing in this action. The Court addresses them in turn.

1. Past Injury

“To satisfy the first prong of the ADA standing test articulated in Kreisler—a necessity for establishing injury in fact—an allegation of past injuries under the ADA must ․ establish that such injuries were both concrete and particular to the plaintiff, and must do so with sufficient specificity.” Rizzi v. Hilton Domestic Operating. Co., No. 18 Civ. 1127 (SJF) (ARL), 2020 WL 7000356, at *3 (E.D.N.Y. Aug. 11, 2020), R&R adopted, 2020 WL 6253713 (E.D.N.Y. Oct. 23, 2020) (cleaned up). Past injury “can take two forms: direct injury from personally encountering disability-based discrimination or deterrence from using [d]efendant's property because it is not ADA compliant.” Dominguez v. Banana Republic, LLC, 613 F. Supp. 3d 759, 765 (S.D.N.Y. 2020) (cleaned up), aff'd sub nom. Calcano, 36 F.4th 68. Here, Plaintiff invokes the first form of injury, i.e., that she personally encountered access barriers on the White's Boot Website, and does not rely on a deterrence-based theory. (See Opp. at 11-12).

“[A] plaintiff can establish a direct injury sufficient to support standing only if she personally encounters the barrier to access that caused her injury.” Feltzin v. Triangle Props. #1, LLC, No. 14 Civ. 5131 (JMA) (ARL), 2016 WL 11599264, at *4 (E.D.N.Y. Dec. 15, 2016) (cleaned up). “[I]t is not enough for a plaintiff to allege conditions that violate the ADA; he must also allege facts sufficient to establish that he has been injured by those violations.” Id. Thus, “ ‘[e]ven where a plaintiff personally encounters conditions that allegedly violate the ADA, ․ such encounter must cause an injury that is both concrete and particular to the plaintiff in order to establish standing.’ ” Feltenstein v. City of New Rochelle, No. 14 Civ. 5434 (NSR), 2019 WL 3543246, at *3 (S.D.N.Y. Aug. 5, 2019) (quoting Feltzin, 2016 WL 11599264, at *4).

To satisfy this standard, Plaintiff relies on several allegations in the Complaint describing the access barriers she encountered in using the Website and her inability to purchase the Lace-to-Toe boots. (Opp. at 11-12 (citing Compl. ¶¶ 20, 25, 26, 28, 29, 43, 44 & 45)). In terms of access barriers, Paragraph 20 alleges vaguely that Plaintiff “encountered barriers that denied the full and equal access to Defendant's online goods, content, and services.” Read together, Paragraphs 26 and 28 provide only a bit more specificity, alleging that Defendant failed to build the Website and provide online content and services “in a manner that is compatible with screen access programs” and “screen-reader technology” and that, as a result, Plaintiff “was unable to understand and properly interact with the Website.”

Paragraphs 43 and 44, however, delineate a number of specific access barriers that allegedly exist on the Website. These paragraphs allege, in full:

43. The Website contains access barriers that prevent free and full use by the Plaintiff using keyboards and screen-reading software. These barriers include but are not limited to: missing alt-text, hidden elements on web pages, incorrectly formatted lists, unannounced pop ups, unclear labels for interactive elements, and the requirement that some events be performed solely with a mouse.

44. The Website also contained a host of broken links, which is a hyperlink to a non-existent or empty webpage. For the visually impaired this is especially paralyzing due to the inability to navigate or otherwise determine where one is on the website once a broken link is encountered. For example, upon coming across a link of interest, Plaintiff was redirected to an error page. However, the screen-reader failed to communicate that the link was broken. As a result, Plaintiff could not get back to the original search.

Paragraph 45 then alleges (without explaining how) these access barriers “effectively denied Plaintiff the ability to use and enjoy Defendant's website the same way sighted individuals do.”²

Viewed in isolation, these allegations could be considered sufficient to satisfy the past injury prong. Paragraphs 43 and 44 purport to identify seven specific access barriers that Plaintiff experienced while on the Website: (1) missing alt-text; (2) hidden elements on web pages; (3) incorrectly formatted lists; (4) unannounced pop ups; (5) unclear labels for interactive elements; (6) the requirement that some events be performed solely with a mouse; and (7) broken hyperlinks. While the Complaint does not specify how each (or any) of these seven barriers manifested themselves or impeded Plaintiff's access to the Website, the normal rule, as Plaintiff notes (Opp. at 13), is that “ ‘a complaint need not provide detailed factual allegations to survive a motion to dismiss.’ ” Donet v. Isamax Snacks, Inc., No. 23 Civ. 1286 (PAE) (SDA), 2023 WL 6065626, at *3 (S.D.N.Y. Aug. 14, 2023) (quoting Young v. Metro. Learning Inst., Inc., No. 22 Civ. 1722 (JPO), 2023 WL 1928001, at *3 (S.D.N.Y. Feb. 10, 2023) (additional citation omitted)); see also Sonterra Cap. Master Fund Ltd. v. UBS AG, 954 F.3d 529, 534 (2d Cir. 2020) (describing injury-in-fact requirement as a “low threshold”).

But Plaintiff's access barrier allegations should not be viewed in isolation.

In reviewing these allegations, the Court took note of their generic phrasing, as well as Defendant's assertion in its Reply that Wahab had made the exact same allegations in two other cases she filed in this District. (See Reply at 9 n.1) (citing Wahab v. Wolverine World Wide, Inc., No. 23 Civ. 7464 (JMF) (JW), Dkt. No. 1 ¶¶ 45-46, and Wahab v. The Working Man's Store, Inc., No. 23 Civ. 10124 (DEH) (SN), Dkt. No. 1 ¶¶ 45-46). This prompted the Court to conduct further research. That research revealed that from June 28, 2023 through July 31, 2024, Wahab filed a total of 67 lawsuits in this District. These are all ADA website cases, brought against 67 different companies. Stein Saks, PLLC (“Stein Saks”), Plaintiff's counsel in this case, represents Wahab in all 67 cases. NYSD ECF, https://nysd-ecf.sso.dcn/cgi-bin/iquery.pl (search for “Angela Wahab”) (last visited August 15, 2024).³

In all 67 complaints, Wahab alleges that she encountered the same seven access barriers on the defendant's website in language that is identical to the generic allegations in Paragraphs 43 and 44 of the Complaint here.⁴ Similarly, the allegation in Paragraph 20 that Plaintiff “encountered barriers that denied the full and equal access to defendant's online goods, content, and services” is also identical in all 67 complaints. So are the allegations in Paragraphs 26 and 28 that the defendant failed to build or provide online content or services “in a manner compatible with screen access programs” or “screen-reader technology,” as a result of which Wahab was “unable to understand and properly interact with the Website.”

It is notable that the seven access barriers that Wahab alleges to have encountered on all 67 different websites are not the only types of barriers that impede online access by visually impaired persons. The Complaint itself—in an allegation that is also repeated, verbatim, in all 66 other complaints filed by Wahab—details seventeen “common access barriers to blind and visually-impaired persons” posed by non-compliant websites. (Compl. ¶ 36a-q). Some of these appear to overlap with the seven access barriers identified in Paragraphs 43 and 44, but many are different. Yet Wahab does not allege that she encountered or was injured by any of these other access barriers on any of the websites she visited—only the seven barriers identified in Paragraphs 43 and 44.

The situation grows more curious when considering other ADA website lawsuits filed by Stein Saks in this District. The Court has identified 201 additional lawsuits filed in this District by Stein Saks, on behalf of nine other plaintiffs besides Wahab, during the period June 1, 2023 through July 31, 2024.⁵ The Court has conducted a random check of 83 of these 201 complaints. All of the sampled complaints likewise allege the same seven access barriers using the same generic language in Paragraphs 43 and 44 of the Complaint. They also include allegations with the same vague language found in Paragraphs 20, 26, and 28 of the Complaint.

Widening the lens further, the Court sees the same pattern playing out across the East River. From June 1, 2023 through July 31, 2024, Stein Saks filed a total of 243 lawsuits in the Eastern District of New York on behalf of seven ADA website plaintiffs.⁶ The Court has randomly sampled 50 of these complaints. Sure enough, all 50 complaints allege the same seven access barriers found in Paragraphs 43 and 44 of the Complaint using the same generic language. They, too, contain the same allegations found in Paragraphs 20, 26, and 28.

In sum, it appears that the Stein Saks firm has filed more than 500 ADA website complaints over the last fourteen months—more than eight per week—in the Southern and Eastern Districts of New York on behalf of seventeen different visually impaired plaintiffs. Based on the Court's review of 200 of those complaints, seventeen different plaintiffs generically allege that they experienced the same seven access barriers on hundreds of different websites operated by hundreds of different companies, without any specificity as to how these barriers arose in any particular case or caused injury to the plaintiff. Seen in this light, Paragraphs 43 and 44 of Plaintiff's Complaint, which at first glance might appear to identify access barriers specific to White's Boots Website that caused Plaintiff injury, morph into something very different: mere boilerplate.

In Calcano, the Second Circuit made clear that “conclusory, boilerplate allegations fail to establish standing.” 36 F.4th at 71. The court dismissed claims brought under the ADA for lack of standing because plaintiffs “fail[ed] to provide any details” to support their “vague” and “conclusory” assertions, and thus could not “possibly show that they have suffered an injury that is ‘concrete and particularized.’ ” Id. at 75-77 (emphasis in original) (quoting Lujan, 504 U.S. at 560). In reaching this conclusion, the Second Circuit explained that “we cannot ignore the broader context of Plaintiffs’ transparent cut-and-paste and fill-in-the-blank pleadings”—dozens of “essentially carbon-copy complaints” which all “use[d] identical language to state the same conclusory allegations.” Id. at 77.

Although Calcano involved brick-and-mortar retail locations, numerous courts in this District have applied Calcano’s reasoning and dismissed ADA website accessibility cases for lack of standing where plaintiffs have relied on similar cut-and-paste allegations. See, e.g., Loadholt v. Oriental-Decor.com Inc., No. 22 Civ. 8205 (AS) (RWL), 2024 WL 78243, at *4 (S.D.N.Y. Jan. 4, 2024) (“Following Calcano, courts in this Circuit have required specific factual allegations to establish standing” in ADA website cases); Velazquez v. Home Controls, Inc., No. 22 Civ. 3921 (MKV), 2023 WL 4622597, at *3 (S.D.N.Y. July 23, 2023) (dismissing for lack of standing and noting that complaints filed by Stein Saks on behalf of the plaintiff “all follow a familiar pattern” by alleging “in boilerplate fashion” that “the Plaintiff visited a website, that the website is not ADA compliant, and ․ that the Plaintiff ‘intends to visit the Website in the near future’ ”); Zinnamon v. Satya Jewelry II LLC, No. 23 Civ. 781 (VEC), 2023 WL 3511123, at *3 (S.D.N.Y. Apr. 28, 2023) (sanctioning Stein Saks for filing hundreds of “barebones, cookie-cutter complaints that are plainly inadequate” to allege standing); Loadholt v. Dungarees, Inc., No. 22 Civ. 4699 (VEC), 2023 WL 2024792, at *2 (S.D.N.Y. Feb. 15, 2023) (“Courts in this Circuit have recognized that [Calcano] raised the bar appreciably for adequately pleading standing to seek injunctive relief in ADA cases.”) (cleaned up); Velazquez v. Everlast Worldwide, Inc., No. 22 Civ. 9211 (VSB), 2022 WL 16745767, at *1 (S.D.N.Y. Nov. 7, 2022) (dismissing ADA website case filed by Stein Sacks for lack of standing because complaint's allegations were “at least as conclusory as the allegations in Calcano” and (save for the caption, defendant name, and website name) “identical to six other complaints that Plaintiff filed the same day”).

These cases, and Calcano itself, focus on the third Kreisler factor, intent-to-return. But as courts have recognized, vague, conclusory, and boilerplate allegations are likewise insufficient to plead the first factor, past injury. See, e.g., Adams v. 98-208 Para Realty Corp., No. 22 Civ. 2135 (MKB), 2023 WL 5827595, at *4 (E.D.N.Y. Sept. 8, 2023) (ADA plaintiff's “vague” and “conclusory” allegations were “insufficient to raise a reasonable inference of past injury”); Rizzi, 2020 WL 7000356, at *4 (finding plaintiff's “conclusory allegations” listing ten programming errors on website insufficient to plead past injury); Harty v. Nyack Motor Hotel Inc., No. 19 Civ. 1322 (KMK), 2020 WL 1140783, at *5 (S.D.N.Y. Mar. 9, 2020) (“Although Plaintiff does not need to delve deeply into the technical details of website accessibility at the pleading stage, his conclusory allegations and recitation of legal boilerplate simply do not compare to the kinds of factual allegations other plaintiffs have provided in similar cases”) (emphasis in original).

Put differently, if ADA website plaintiffs need to set forth “non-conclusory, plausible factual allegations” to satisfy the intent-to-return requirement, Dungarees Inc., 2023 WL 2024792, at *2, the same should hold true for the past injury requirement. Examples abound in this District of ADA website plaintiffs meeting the past injury prong by properly pleading particularized factual allegations tailored to the website at issue. See, e.g., Life Time, Inc., 2023 WL 4364488, at *4 (plaintiff alleged “specific accessibility issues unique to the website,” including “landmarks not being properly inserted into the home page”) (cleaned up); Chalas v. Barlean's Organic Oils, LLC, No. 22 Civ. 4178 (CM), 2022 WL 17156838, at *2 (S.D.N.Y. Nov. 22, 2022) (plaintiff “describe[d] in detail the nature of the accessibility barriers she faced,” including not being informed “whether a selected item had been added to her shopping cart” and not having “the ability to pay for items in her cart”); Sanchez v. NutCo, Inc., No. 20 Civ. 10107 (JPO), 2022 WL 846896, at *2 (S.D.N.Y. Mar. 22, 2022) (plaintiff described “in great detail the nature of the Website's barriers and how his injury is traceable to him,” such as being unable to ascertain the price or other details of products and to know when an item was placed into his online cart).

The Complaint here fails to provide non-conclusory, plausible factual allegations of past injury under the ADA. Plaintiff provides no allegations specifying the points at which any of the seven access barriers arose while she was navigating the Website or how they prevented her from purchasing the particular boots she desired. And it would be unreasonable to infer that Plaintiff's injury in this case was caused by the seven access barriers generically identified in Paragraphs 43 and 44 when she has made the exact same allegation in 66 other cases. Under these circumstances, the Court needs more case-specific factual allegations to find that Plaintiff has met her pleading burden. See Calcano, 36 F.3d at 75 (“Although we generally accept the truth of a plaintiff's allegations at the motion to dismiss stage, the plaintiff still ‘bears the burden of alleging facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue’ ”) (quoting Cortland St. Recovery Corp. v. Hellas Telecomms., S.à.r.l., 790 F.3d 411, 417 (2d Cir. 2011)); Rizzi, 2020 WL 7000356, at *4 (past injury not sufficiently pled where, although plaintiff listed ten programming errors on the website, he provided “no explanation of how these violations injured” him); Nyack Motor Hotel, 2020 WL 1140783, at *4 (complaint that lacked “particularized allegations” as to “how any website at issue fails to meet any accessibility requirements” and “how they impeded his navigations of the Website” failed to plead past injury).⁷

The Court does not minimize the significance of website access barriers faced by visually impaired persons and does not doubt that some or all of the seven types of barriers identified in Paragraphs 43 and 44 are quite common.⁸ It is not impossible that each of these barriers existed on the White's Boot Website and caused Plaintiff injury. But Plaintiff's bare, boilerplate allegation that this was so simply cannot be taken at face value. At the very least, Plaintiff must allege some facts explaining which barriers impeded her ability to purchase the Lace-to-Toe boots and how they did so. See Rizzi, 2020 WL 7000356, at *4 (“ ‘Plaintiff makes no attempt to tether his laundry list of alleged violations to any alleged injury. Absent such a connection, plaintiff lacks standing.’ ”) (quoting Feltzin, 2016 WL 11599264, at *5); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 955 (9th Cir. 2011) (plaintiff lacked standing where complaint left court “to guess which, if any, of the alleged violations deprived him of the same full and equal access that a person who is not wheelchair bound would enjoy”).

To be clear, the Court does not hold Plaintiff's status as a tester against her on this motion. See Harty, 28 F.4th at 444 n.3 (“The law is clear that testers can have standing”). Nor does the Court take issue with the sheer volume of lawsuits that Plaintiff and her counsel have filed. “The fact that Plaintiff has filed [67] complaints may just as well reflect the rampant nature of discrimination that persons with visual impairments face when using the internet.” Davis v. Wild Friends Foods, Inc., No. 22 Civ. 4244 (LJL), 2023 WL 4364465, at *4 (S.D.N.Y. July 5, 2023). “This fact alone ․ does not make Plaintiff's allegations of standing any more or less plausible.” Id.

Nevertheless, “even testers have to show that they have suffered an Article III injury in fact.” Harty, 28 F.4th at 444 n.3. To make that showing, they must set forth specific allegations showing that access barriers they encountered “cause[d] an injury that is both concrete and particular to the plaintiff.” Feltenstein, 2019 WL 3543246, at *3 (cleaned up). The Complaint here fails to do so. “Accordingly, [Wahab's] status as a serial plaintiff does not preclude standing, but [her] failure to plead specific factual allegations establishing [past injury under the ADA] does.” Oriental-Decor.com, 2024 WL 78243, at *6.

2. Continuance of Discriminatory Treatment

While the Court is not satisfied that Plaintiff has pled a sufficiently particularized past injury, Plaintiff nonetheless satisfies the second Kreisler factor. Under this factor, the Court considers whether it may draw a reasonable inference that the alleged discriminatory treatment will continue. Kreisler, 731 F.3d at 188. Courts have “held this element satisfied” where a plaintiff has made multiple visits “to an allegedly inaccessible website and encountered continuing barriers.” Thorne, 2024 WL 1604273, at *4.

Plaintiff claims that the Complaint's allegations of two visits to the Website to buy “handcrafted boots,” and her inability to complete the purchase both times, coupled with her stated intent to return, are sufficient to satisfy the second Kreisler factor. (Opp. at 14-16).⁹ Defendant does little to counter these arguments and mostly refutes Plaintiff's claims of standing on the first and third Kreisler prongs. (See Reply at 8-10). As far as the Court can discern, Defendant does not cite a single case where a party's standing claim ran aground on the second Kreisler prong.

Unsurprisingly, then, the Court finds Plaintiff's arguments on this point to be more persuasive. Here, Plaintiff visited the website twice to complete the same purchase using NVDA's screen reading technology. (Compl. ¶¶ 20, 25, 40, 42). As numerous courts in this District analyzing the second Kreisler factor have found, allegations substantially similar to Plaintiff's are sufficient to satisfy this part of the injury-in-fact analysis. See, e.g., Thorne, 2024 WL 1604273, at *4 (plaintiff visited website on “separate occasions” prior to lawsuit being filed, and discriminatory treatment was found likely to continue despite affidavit alleging defendant remedied website issues); Tavarez v. Moo Organic Chocolates, LLC, 641 F. Supp. 3d 76, 82 (S.D.N.Y. 2022) (three website visits and failure to remedy website by the time the operative complaint was filed supported sufficient inference); Davis, 2023 WL 4364465, at *6; see also Camacho v. Vanderbilt Univ., No. 18 Civ. 10694 (KPF), 2019 WL 6528974, at *10 (S.D.N.Y. Dec. 4, 2019) (where plaintiff had “visited the Website on multiple occasions” and had not been able to access its content, court inferred “that the Website has not been altered to fix the barriers Plaintiff encountered, and that he will continue to be unable to access the Website”).

Of course, to the extent Plaintiff has failed to adequately allege, under the first Kreisler factor, that the Website contains access barriers that caused her past injury (as found above), it would seem to follow that she has likewise failed to adequately allege a likelihood of “continuing” injury under the second Kreisler factor. However, if Plaintiff later cures her defective allegations of past injury in an amended complaint, her allegations regarding her multiple visits to the Website will be enough to plead an inference of continued discriminatory treatment under the second Kreisler factor.

3. Intent to Return

A plaintiff can satisfy the “intent-to-return requirement with ‘non-conclusory, plausible factual allegations from which it is reasonable to infer, based on the past frequency of visits and the plaintiff's articulated interest in the products or services available on the particular website, that the plaintiff intends to return to the website.’ ” Feliz, 2024 WL 342701, at *3 (quoting Dungarees, Inc., 2023 WL 2024792, at *2). Professing only “an intent to return to the places previously visited is not enough to establish standing for prospective relief.” Calcano, 36 F.4th at 78 (cleaned up); see also id. at 75 (“The central inquiry is not whether a complaint pleads the magic words that a plaintiff intends to return, but if, examined under the totality of all relevant facts, the plaintiff plausibly alleges a real and immediate threat of future injury”) (cleaned up).

Plaintiff argues that several of her allegations, taken together, are sufficient to meet these requirements. (See Opp. at 17-25). For example, not only does Plaintiff allege that she intends to return to the website to buy “Women's Line Scout Lace-to-Toe boots” when she is able, but she also alleges why she wants to buy these specific boots: she has been “looking for leather boots for the cold season” and wants Defendant's “handcrafted boots from natural materials” because “her previous pair of the same type were very comfortable and durable.” (Id. at 17-19 (citing Compl. ¶¶ 21-24, 30)). In Defendant's view, however, under Calcano, Plaintiff does not provide sufficient factual context for a future visit even if she has provided sufficient past context as to why she visited the Website her first two times. (See Mot. at 10; Reply at 9-10).

Post-Calcano, courts in this District have engaged in fact-intensive inquiries to determine whether allegations like the ones in the instant Complaint clear the intent-to-return bar imposed by the Second Circuit. Compare Feliz, 2024 WL 342701, at *3 (allegations of “still want[ing]” to buy COVID-19 tests and a stated intent to return were insufficient); Loadholt v. Game Goblins, LLC, No. 22 Civ. 7367 (AT), 2023 WL 6066220, at *3 (S.D.N.Y. Sept. 18, 2023) (finding no standing in part because plaintiff failed to explain that defendant “is the only retailer who sells” the products at issue); Home Controls, Inc., 2023 WL 4622597, at *3 (finding two visits to a website to buy “home security items and home automation devices” to be insufficient to establish intent to return), with Moo Organic Chocolates, LLC, 641 F. Supp. 3d at 82-83 (intent to return met where complaint specified multiple dates on which plaintiff accessed defendant's website; the specific product plaintiff wanted to buy; his habit of consuming that type of product; and characteristics of defendant's specific product that attracted plaintiff to defendant's website); Davis, 2023 WL 4364465, at *6 (intent to return established where website was visited five times to buy specific type of honey butter that the court described as “distinctive”); Life Time, Inc., 2023 WL 4364488, at *5 (intent to return satisfied where plaintiff alleged she collected body lotions from various brands and wanted to buy a specific, high quality body oil from defendant).

While a close call, the Court finds that Plaintiff's allegations pass muster under Calcano. Unlike the allegations before the Second Circuit in that case, “Plaintiff alleges more than [a] profession of an intent to return to the Website.” Davis, 2023 WL 4364465, at *6; see also Moo Organic Chocolates, LLC, 641 F. Supp. 3d at 83 (noting the complaints at issue in Calcano failed to provide any details about past visits to brick-and-mortar stores). Moreover, the Complaint makes clear that if she can return to the Website without accessibility barriers, Plaintiff will buy a specific pair of boots. These allegations stand in contrast to cases where a plaintiff's alleged intent to return to buy a product is more nebulous. See, e.g., Dungarees, Inc., 2023 WL 2024792, at *2 (“plaintiff was ‘potentially’ in the market for ‘some belts and a jacket’ ”) (quoting complaint).

Defendant argues that Plaintiff “cannot overcome” Calcano, but its reliance on that case is unavailing. (See Reply at 9, 11). While Calcano took issue with plaintiffs’ “naked assertions of intent to return,” such as one plaintiff who averred that he wanted to return to a department store which no longer existed, and another who stated he wanted to return to a clothing store for its food, 36 F.4th at 77-78 (cleaned up), here Plaintiff has articulated a sufficiently specific and tailored intent to return to the Website based on multiple past visits and a desire to buy one of Defendant's unique, high-quality products.

Defendant also argues that the Kingett Declaration undermines Plaintiff's professed intent to return to the Website. (Reply at 11). According to Defendant, once she “learn[ed]” from the Kingett Declaration that a visually impaired person could purchase the boots in question on the Website, it was incumbent upon Plaintiff to go back to the Website “if she really intended to order the boots in the first place.” (Id.). Defendant cites no authority for this argument, which simply repackages in another form its claim, rejected above, that the case is moot.

Accordingly, Plaintiff has satisfied the third Kreisler factor.

* * *

To summarize: the Court reads the Complaint as satisfying the second and third Kreisler factors, as Plaintiff's allegations with respect to these factors are sufficiently particularized and non-conclusory. However, the Complaint's vague, boilerplate, and implausible allegations as to the access barriers Plaintiff purportedly encountered on the Website fail to adequately plead past injury, as required under the first Kreisler factor. Plaintiff therefore has failed to show that she has suffered an injury that is “concrete and particularized,” Lujan, 504 U.S. at 560, and her ADA claim should be dismissed for lack of standing.

C. Remaining Causes of Action

1. NYCHRL Claim

Plaintiff's NYCHRL claim should also be dismissed. First, as Defendant's brief correctly notes (Mot. at 17), “[c]laims under the ADA and NYCHRL are governed by the same standing requirements,” and where an ADA claim does not survive a standing challenge, an NYCHRL claim, insofar as it seeks injunctive relief, should be dismissed “for the same reasons.” Monegro v. St. Insider DOT Com Inc., No. 21 Civ. 3339 (LJL), 2022 WL 445797, at *4 (S.D.N.Y. Feb. 11, 2022); accord, e.g., Oriental-Decor.com, 2024 WL 78243, at *6; Zinnamon v. Profound Color LLC, No. 23 Civ. 2722 (LJL), 2023 WL 6882415, at *3 (S.D.N.Y. Oct. 17, 2023); see also Delacruz v. Yankee Candle Co., No. 19 Civ. 10999 (AT), 2021 WL 1198567, at *1 (S.D.N.Y. Mar. 30, 2021) (where plaintiff lacked standing under one of the three Kreisler factors, plaintiff likewise lacked standing under the NYCHRL because “NYCHRL claims are governed by the same standing requirements as the ADA”) (cleaned up).¹⁰

Unlike the ADA, the NYCHRL allows for monetary damages as well as injunctive relief. Oriental-Decor.com, 2024 WL 78243, at *6. However, when dismissal of an ADA claim is appropriate (on standing grounds or otherwise), and only state claims remain, courts in this Circuit typically decline to exercise supplemental jurisdiction over the remaining state claims for monetary damages. See, e.g., Calcano, 36 F.4th at 77-78 (affirming district judge's decision to decline exercising supplemental jurisdiction over plaintiffs’ New York State Human Rights Law and NYCHRL claims); Feliz, 2024 WL 342701, at *5 (“with the dismissal of [plaintiff's] only claim under federal law, the Court declines to exercise supplemental jurisdiction over [plaintiff's] NYCHRL claim for monetary relief”); Oriental-Decor.com, 2024 WL 78243, at *6 (same); see also 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ․ [once] the district court has dismissed all claims over which it has original jurisdiction”).

2. Declaratory Relief

The parties’ briefs fail to address whether Plaintiff's claim for declaratory relief under 28 U.S.C. §§ 2201 and 2202 survives if her ADA and NYCHRL claims are dismissed. An answer, however, is readily at hand: “[a] plaintiff cannot maintain a claim for a declaratory judgment where the underlying substantive claim has been dismissed since the Declaratory Judgment Act only created a procedural mechanism and not an independent cause of action.” Toretto v. Donnelley Fin. Sols., Inc., 583 F. Supp. 3d 570, 606 (S.D.N.Y. 2022) (citation omitted); see also Dreambuilder Invs., LLC v. MERSCORP Holdings, Inc., No. 19 Civ. 8937 (ER), 2022 WL 596102, at *6 (S.D.N.Y. Feb. 28, 2022) (“a request for declaratory [ ] relief is not an independent cause of action” and “since the Court has dismissed [plaintiff's] substantive claims, the remaining declaratory judgment cause of action should also be dismissed”).

The same outcome is required in this case. Here, the Complaint pleads a cause of action for declaratory relief predicated on Defendant's “fail[ure] to comply with applicable laws” including “Title III of the [ADA] ․ and [NYCHRL] prohibiting discrimination against the blind.” (Compl. ¶ 87). Since the Court has already recommended dismissal of these claims, to the extent Plaintiff's request for declaratory relief may be construed as a separate cause of action, it too should be dismissed.

D. Leave to Amend

“When a complaint is dismissed for lack of standing, courts generally give the plaintiff leave to file an amended complaint.” Dawkins v. Schott NYC Corp., No. 22 Civ. 3617 (PKC) (TAM), 2023 WL 6283285, at *5 (E.D.N.Y. Sept. 26, 2023); accord Dominguez v. Grand Lux Cafe LLC, No. 19 Civ. 10345 (MKV), 2020 WL 3440788, at *4 (S.D.N.Y. June 22, 2020); see also Fed. R. Civ. P. 15(a)(2) (the court “should freely give leave [to amend] when justice so requires”); cf. Home Controls, Inc., 2023 WL 4622597, at *4 (denying leave to amend upon dismissal for lack of standing where court had already given plaintiff an opportunity to amend in response to defendant's standing argument raised in pre-motion letter).

Here, the operative complaint is the original complaint that Plaintiff filed to initiate this action. (See Dkt. No. 1). Further, “Plaintiff has not yet had the opportunity to amend,” Dawkins, 2023 WL 6283285, at *5, and the Court's recommendation of dismissal is predicated on Plaintiff's failure to adequately plead one prong of a three-part standing test. If this Report & Recommendation is later adopted without modification and Plaintiff elects to amend her Complaint, such an amendment would not necessarily be futile because an amended complaint could potentially “ ‘withstand a [future] motion to dismiss.’ ” Dungarees, Inc., 2023 WL 2024792, at *3 (quoting Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65 (2d Cir. 2015)). Therefore, the Court finds that granting leave to amend is appropriate.

CONCLUSION

For the foregoing reasons, the undersigned respectfully recommends that: (1) Defendant's motion to dismiss for lack of standing be GRANTED; and (2) should this Report & Recommendation be adopted, Plaintiff be given leave to amend her Complaint within 30 days of Judge Rearden's ruling.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen days, inclusive of weekends and holidays, from the date of this Report and Recommendation to file written objections thereto. See also Fed. R. Civ. 6(a), (b), and (d). Any such objections shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be directed to the Honorable Jennifer H. Rearden. A failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner v. Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   In addition to the Kingett Declaration accompanying its memorandum of law, Defendant also filed a motion for “Leave to File Video Evidence” in support of its motion to dismiss. (Dkt. No. 11). According to Defendant, this video shows Mr. Kingett using a screen-reader to navigate the Website, without encountering the issues Plaintiff claims she faced in her Complaint. (See Dkt. No. 10 Ex. A ¶ 6). On February 5, 2024, Defendant reminded the Court of its motion for leave to file the video and mailed a copy of the video to Judge Rearden's chambers, copying Plaintiff's counsel. However, this submission occurred over a week after Plaintiff had already submitted its opposition, in which Plaintiff refers to the video of Mr. Kingett as “yet unproduced.” (Dkt. No. 16 at 1).To date, the Court has not acted on Defendant's motion for leave to file the video. The Court now denies Defendant's motion because: (1) the motion is already fully briefed, and Defendant did not provide Plaintiff with a copy of the video until after Plaintiff's opposition was filed; and (2) assuming the video confirms what is described in the Kingett Declaration, it would have no material bearing on the Court's analysis.

2.   Paragraphs 25 and 29 similarly allege in general terms, respectively, that Plaintiff was “unable to complete the purchase due [to] the inaccessibility of Defendant's Website” and that Plaintiff has “suffer[ed] an injury in fact due to Plaintiff's inability to purchase” the Lace-to-Toe Boots.

3.   The Court may take judicial notice of other ADA website lawsuits filed by Plaintiff and her counsel. See, e.g., Velazquez v. Home Controls, Inc., No. 22 Civ. 3921 (MKV), 2023 WL 4622597, at *3 n.3 (S.D.N.Y. July 19, 2023).

4.   The only variation is that in 16 of the 67 complaints, the three sentences at the end of Paragraph 44 beginning with “For example” are omitted. The entirety of Paragraph 43 and the first two sentences of Paragraph 44, however, are still identical in these 16 complaints. Of the other 133 Stein Saks ADA website complaints reviewed as discussed infra, 23 of them likewise omit the three sentences beginning with the word “For example.”

5.   NYSD ECF, https://nysd-ecf.sso.dcn/cgi-bin/iquery.pl (searches for “Zebone Brown,” “Seana Cromitie,” “Alison Michele Cruz,” “Charity Danso,” “Maria DiMeglio,” “Jacqueline Fernandez,” “Luis Mercedes,” “Bryan Velazquez,” and “Warren Zimmerman”) (last visited August 15, 2024).

6.   NYED ECF, https://nyed-ecf.sso.dcn/cgi-bin/iquery.pl (searches for “Vincent Clement,” “Ali Colak,” “Damian Martin,” “Silvia Martinez,” “Daniel Rodriguez,” “Colette Stroude,” “Roberto Solis”) (last visited August 15, 2024).

7.   Plaintiff argues that “general allegations of access barriers” suffice to plead past injury. (Opp. at 13-14 (citing, inter alia, Jaquez v. Dermpoint, Inc., No. 20 Civ. 7589 (JPO), 2021 WL 2012512, at *2 (S.D.N.Y. May 20, 2021)). But none of the cases she relies on for that proposition considered the type of cookie-cutter allegations involved here, which fail to give rise to a plausible inference that Plaintiff was injured by the seven access barriers generically described in the Complaint. See Grannon v. 31 Essex St. LLC, No. 22 Civ. 1134 (ER), 2023 WL 199287, at *4 (S.D.N.Y. Jan. 17, 2023) (“Cookie-cutter complaints provide evidence of an insufficiently pled complaint”).

8.   See Amnah Alluqmani, Morgan Harvey & Ziqi Zhang, The Barriers to Online Clothing Websites for Visually Impaired People: An Interview and Observation Approach to Understanding Needs, DIS ’23: Proceedings of the 2023 ACM Designing Interactive Systems Conference 753-64 (2023) (identifying challenges faced by visually impaired people when shopping for clothes online); Alex H. Cohen, Jorge E. Fresneda & Rolph E. Anderson, What retailers need to understand about website inaccessibility and disabled consumers: Challenges and opportunities, 54 J. Consumer Affairs 854-89 (2020) (describing missing ALT-text as “[o]ne of the most common accessibility problems of retail websites”); JEMSU, Detecting and Fixing Broken Links in 2023, available at https://jemsu.com (citing studies finding that 50% of websites contain broken links and images and that an average of around 5% of all website links are broken).

9.   Plaintiff also argues that, to the extent Defendant relies on the Kingett Declaration with respect to the continued discriminatory treatment prong, Defendant is attempting “to bootstrap mootness arguments onto the Article III standing analysis.” (Opp. at 16). The Court agrees. See Suris v. Crutchfield New Media, LLC, No. 22 Civ. 6961 (NRM) (RML), 2023 WL 3792512, at *4 (E.D.N.Y. June 2, 2023) (finding defendant's argument to be “more properly analyzed under mootness standards” than under second prong of standing analysis). In any event, the Court has already concluded above that the Kingett Declaration is insufficient to show that any access barriers on the Website have been remediated and are unlikely to continue.

10.   Plaintiff cites to Pustilnik v Battery Park City Auth., 71 Misc. 3d 1058, 1070, 147 N.Y.S.3d 357 (Sup. Ct. N.Y. Cnty. 2021), to argue that NYCHRL claims are subject to lower pleading standards than ADA claims and that her NYCHRL claim should survive Defendant's motion even if her ADA claim is dismissed. (See Opp. at 25). This argument fails because “[w]hen state law claims are brought in federal court, federal pleading standards apply.” Smith-Crockett v. CT Tech. High School, 3:18-cv-1640 (VLB), 2019 WL 13293209, at *10 (D. Conn. Sept. 24, 2019) (citation omitted); see also Liang v. USA QR Culture Indus. Dev. LLC, No. 22 Civ. 4841 (PGG) (RWL), 2023 WL 8252962, at *7 (S.D.N.Y. Nov. 29, 2023) (state law claims brought in federal court “are subject to Article III standing requirements”).

GARY STEIN United States Magistrate Judge