The opinion
UNITED STATES DISTRICT COURT DATE FILED: 08/08/ 2023
SOUTHERN DISTRICT OF NEW YORK
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LAMAR BROWN, on behalf of himself and all :
others similarly situated, : 23-CV-3750 (VEC)
:
Plaintiff, : ORDER
:
-against- :
:
:
AMERICAN SPOON FOODS, INC., :
:
:
Defendant. :
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VALERIE CAPRONI, United States District Judge:
WHEREAS on May 4, 2023, Plaintiff sued American Spoon Foods, Inc., alleging that its
failure to make its website accessible to visually impaired persons violates the Americans with
Disability Act (“ADA”), the New York State Human Rights Law, the New York State Civil
Rights Law, and the New York City Human Rights Law, see Compl., Dkt. 1;
WHEREAS to establish constitutional standing, a plaintiff must adequately allege (1) a
concrete, particularized, actual, or imminent injury-in-fact; (2) a causal connection between the
injury and the conduct complained of such that the injury is “fairly traceable to the challenged
action of the defendant;” and (3) it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision from the Court, Lujan v. Defs. of Wildlife, 504
U.S. 555, 576 (1992) (internal quotation marks omitted);
WHEREAS the Court may raise the question of standing sua sponte because standing is a
threshold matter of justiciability, and if a plaintiff lacks standing to sue, the Court has no choice
but to dismiss the plaintiff’s claim for lack of subject-matter jurisdiction, see Thompson v. Cnty.
of Franklin, 15 F.3d 245, 248 (2d Cir. 1994); Cent. States SE & SW Areas Health & Welfare
Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005);
WHEREAS a plaintiff bringing a claim pursuant to the ADA has standing to sue for
injunctive relief if “(1) the plaintiff allege[s] past injury under the ADA; (2) it [is] reasonable to
infer that the discriminatory treatment [will] continue; and (3) it [is] reasonable to infer, based on
the past frequency of plaintiffs visits and the proximity of [defendant’s business] to plaintiff's
home, that plaintiff intend[s] to return to the subject location,” Kreisler v. Second Ave. Diner
Corp., 731 F.3d 184, 187-88 (2d Cir. 2013); a plaintiff must plausibly allege “a real and
immediate threat of future injury” for his or her complaint to meet the third prong, Calcano v.
Swarovski et al., 36 F.4th 68, 75 (2d Cir. 2022) (citation omitted);
WHEREAS in Calcano, the Second Circuit held that “Plaintiffs’ conclusory, boilerplate
allegations” that they were injured by Defendants’ failure to accommodate visually impaired
plaintiffs “fail to establish standing,” id. at 71; and
WHEREAS the allegations in the Complaint in this action likely fail adequately to allege
standing, as they are at least as conclusory as the allegations in the complaints at issue in
Calcano;
IT IS HEREBY ORDERED that, by no later than Tuesday, August 15, 2023, Plaintiff
must file a motion, including a memorandum of law and any supporting exhibits or declarations,
for leave to file an amended complaint that adequately alleges standing or show cause as to why
the case should not be dismissed for lack of standing.
SO ORDERED. \ Qe. ( ’
Date: August 8, 2023 VALERIE amin
New York, New York United States District Judge