Opinion
1:19-cv-9820 (MKV)
06-07-2022
MARCOS CALCANO, on behalf of himself and all other persons similarly situated, Plaintiff, v. HOOTERS OF AMERICA LLC, Defendant.
ORDER OF DISMISSAL
MARY KAY VYSKOCIL, United States District Judge
Plaintiff Marcos Calcano filed this action against Defendant Hooters of America LLC asserting claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq., the New York State Human Rights Law, N.Y. EXEC. LAW §§ 290 et seq., and the New York City Human Rights Law, N.Y.C. ADMIN. CODE §§ 8-101 et seq. [ECF No. 1, 18]. Calcano and other visually impaired plaintiffs filed a number of substantially identical actions against stores and restaurants for failing to carry braille gift cards. See Calcano v. Swarovski N. Am. Ltd., No. 201552, 2022 WL 1788305, at *1 (2d Cir. June 2, 2022); see also Dominguez v. Pizza Hut of Am., LLC, No. 19-cv-10175 (MKV), 2020 WL 3639977, at *4 (S.D.N.Y. July 6, 2020) (dismissing for lack of standing). Defendant filed a motion to dismiss the First Amended Complaint [ECF No. 18] for lack of standing and failure to state a claim [ECF No. 20, 21, 23]. The Court administratively terminated that motion and stayed this case pending the resolution of an appeal arising from the dismissals of five similar cases [ECF No. 27].
On June 2, 2022, the Second Circuit affirmed those dismissals in Calcano v. Swarovski N. Am. Ltd., 2022 WL 1788305, at *1. The Second Circuit explained that the “conclusory, boilerplate allegations” in the five “nearly identical complaints” failed to establish standing. Id. Calcano's pleading in this case, the First Amended Complaint, is substantially identical to the complaints that the Second Circuit held failed to establish standing.
The Court has an independent “obligation . . . to inquire as to subject matter jurisdiction” and to dismiss sua sponte where the Court lacks such jurisdiction. See Da Silva v. Kinsho Int'l Corp., 229 F.3d 358, 361-62 (2d Cir. 2000). Accordingly, IT IS HEREBY ORDERED that this case is DISMISSED without prejudice for lack of standing. Calcano may file a second amended complaint within fifteen days. If he does not timely file a second amended complaint, this case will be dismissed with prejudice.
SO ORDERED.