Opinion
22-CV-8205 (AS) (RWL)
01-04-2024
CHRISTOPHER LOADHOLT, on behalf of himself and all others similarly situated, Plaintiff, v. ORIENTAL-DECOR.COM INC., Defendant.
REPORT AND RECOMMENDATION TO HON. ARUN SUBRAMANIAN: MOTION FOR DEFAULT JUDGMENT
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Christopher Loadholt (“Loadholt” or “Plaintiff”) is visually impaired and brought this action against Defendant Oriental-Decor.com Inc. (“Oriental-Decor.com” or “Defendant”) alleging that its website violates the Americans with Disabilities Act (“ADA”) and the New York City Human Rights Law (“NYCHRL”). Plaintiff now moves for default judgment. Because Plaintiff has not plead facts sufficient to establish Article III standing, I recommend that Plaintiff's motion for default judgment be DENIED and the action be DISMISSED without prejudice.
The facts are based on the Amended Complaint at Dkt. 17 (“Am. Compl.”), the well-plead allegations of which, as explained below, are accepted as true for purposes of this motion.
Loadholt, a New York resident, is visually impaired and legally blind. (Am. Compl. ¶¶ 17-18.) Oriental-Decor.com owns and operates the website www.oriental-decor.com through which it sells home decor products to retail customers. (Id. ¶¶ 20, 23.) On or around June 16, 2022, Loadholt visited Defendant's website, using a screen reading software called NonVisual Desktop Access, with the intention of browsing and potentially purchasing home decor, including bonsai trees and wall scrolls. (Id. ¶ 23.) He was denied access to the website, however, due to its lack of features and accommodations that would allow a visually impaired individual to navigate the website. (Id. ¶ 24.) On July 10, 2022, Loadholt returned to the website to again attempt to browse and potentially purchase some home decor products but found the same accessibility barriers. (Id. ¶¶ 30-31.) As of the filing of the Amended Complaint on December 7, 2022, the accessibility issues had not been resolved. (Id. ¶ 34.) Loadholt would like to return to the website to browse and potentially purchase products once the website is made accessible to him. (Id. ¶ 33.)
Procedural Background
Loadholt commenced this action for violation of Title III of the ADA, as set forth in 42 U.S.C. § 12182 et seq., as well as the NYCHRL, as set forth in New York City Administrative Code §§ 8-102 and 8-107, on September 26, 2022, on behalf of himself and those similarly situated. (Dkt. 1.) He seeks a preliminary and permanent injunction, declaratory judgment, class certification, compensatory damages, pre- and post-judgment interest, and attorneys' fees. (Id. at 12-13.) Defendant moved to dismiss. (Dkt. 13.) In response, Loadholt filed the Amended Complaint (Dkt. 17), which led to District Judge Jesse M. Furman denying the motion to dismiss as moot. (Dkt. 18.) Defendant answered the Amended Complaint on April 3, 2023. (Dkt. 19.)
On May 30, 2023, after Defendant repeatedly failed to comply with Court orders and discovery requirements, I ordered Defendant to show cause why sanctions should not be entered. (Dkt. 24.) At the show cause hearing held on June 13, 2023, I found that Defendant and defense counsel willfully disobeyed court orders and failed to comply with all discovery obligations. Accordingly, on June 14, 2023, I ordered that Defendant's Answer be stricken and that defense counsel and Defendant pay monetary sanctions to Plaintiff. (Dkt. 25.)
On August 2, 2023, Defendant filed for a certificate of default (Dkts. 33-34), which the Clerk of Court entered the same day (Dkt. 35). On August 7, 2023, the case was reassigned to District Judge Arun Subramanian. (Dkt. 36.) On August 22, 2023, Loadholt filed the instant Motion for Default Judgment. (Dkt. 38.) On September 6, 2023, Defendant filed an opposition brief arguing, inter alia, that Loadholt lacks standing to bring the action, thus depriving the Court of subject matter jurisdiction and requiring dismissal of the case. (Dkt. 43.) Loadholt filed a reply on September 12, 2023. (Dkt. 45.) The matter has been referred to me for report and recommendation. (Dkt. 6.)
Legal Standards
A. Default Judgment
When a party seeking judgment or affirmative relief shows by affidavit that the opposing party has failed to plead or otherwise defend, the Clerk of Court must enter a default. Fed.R.Civ.P. 55(a). The non-defaulting party may then apply to the court to obtain a default judgment. Fed.R.Civ.P. 55(b).
“In determining whether to grant a motion for default judgment, a court within this district considers three factors: ‘(1) whether the defendant's default was willful; (2) whether defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.'” Nespresso USA, Inc. v. Africa America Coffee Trading Co. LLC, No. 15-CV-5553, 2016 WL 3162118, at *2 (S.D.N.Y. June 2, 2016) (quoting Indymac Bank, F.S.B. v. National Settlement Agency, Inc., No. 07-CV-6865, 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007)); see also Mason Tenders District Council v. Duce Construction Corp., No. 02-CV-9044, 2003 WL 1960584, at *2 (S.D.N.Y. Apr. 25, 2003) (same). Ultimately, the entry of a default judgment is entrusted to the “sound discretion” of the district court. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993).
The court also “must determine whether the plaintiff has pleaded facts supported by evidence sufficient to establish the defendant's liability with respect to each cause of action.” Nespresso USA, 2016 WL 3162118 at *2; accord Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“[A district court] is also required to determine whether [plaintiff's] allegations establish [defendant's] liability as a matter of law”). “It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (internal quotation marks omitted). A factual allegation will be deemed not well-pled “only in very narrow, exceptional circumstances.” Ideavillage Products Corp. v. Bling Boutique Store, No. 16-CV-9039, 2018 WL 3559085, at *2 (S.D.N.Y. July 24, 2018) (internal quotation marks and citation omitted). That said, a court “must still satisfy itself that the plaintiff has established a sound legal basis upon which liability may be imposed.” Jemine v. Dennis, 901 F.Supp.2d 365, 373 (E.D.N.Y. 2012) (citing Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981)).
B. Standing
Article III of the Constitution “confines the federal judicial power to the resolution of ‘Cases' and ‘Controversies.' For there to be a case or controversy under Article III, the plaintiff must have a ‘personal stake' in the case - in other words, standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citations omitted). “[S]tanding 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.” Tavarez v. Moo Organic Chocolates, LLC, No. 21-CV-9816, 2022 WL 3701508, at *4 (S.D.N.Y. Aug. 26, 2022). Standing can be raised at any time during litigation. See Fed.R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”); Fox v. Board of Trustees of State University of New York, 42 F.3d 135, 140 (2d Cir. 1994) (“Defects in subject matter jurisdiction cannot be waived and may be raised at any time during the proceedings”).
“Even on default, courts must determine whether a plaintiff has standing to bring his claims.” Chavez v. 25 Jay St. LLC, No. 20-CV-845, 2021 WL 982865, at *3 (E.D.N.Y. Feb. 24, 2021), R. & R. adopted, 2021 WL 980257 (E.D.N.Y. Mar. 16, 2021). “At the default judgment stage the plaintiff ‘bears the burden of alleging facts that affirmatively and plausibly suggest that the plaintiff has standing to sue.'” Hennesssy by and through Hennessy v. Poetica Coffee Inc., No. 21-CV-5063, 2022 WL 4095557, at *2 (E.D.N.Y. Sept. 7, 2022) (quoting Calcano v. Swarovski North America Ltd., 36 F.4th 68, 75 (2d Cir. 2022)). To establish standing, “a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” Calcano, 36 F.4th at 74 (quoting TransUnion, 594 U.S. at 423). Additionally, a plaintiff seeking injunctive relief “may not rely solely on past injury, but also must establish that ‘she is likely to be harmed again in the future in a similar way.'” Calcano 36 F.4th at 74 (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016)).
Discussion
Defendant argues that Loadholt is not entitled to default judgment because he lacks standing to bring this case. (Def. Mem. at 1.) In particular, Defendant argues that Loadholt has not alleged facts sufficient to establish an intent to return to the place of the alleged discrimination as is necessary to establish standing. (See id. at 2-4.) Loadholt counters that he has “adequately pled each element required for standing” and that those allegations “have now all been deemed admitted by virtue of the Defendant's default.”
“Def. Mem.” refers to Defendant's Memorandum Of Law In Opposition To Plaintiff's Motion For Default Judgment filed on September 6, 2023 (Dkt. 43).
Apart from standing, Defendant raises a number of other arguments. It argues that even if Loadholt had standing to be entitled to default judgment, he is not entitled to damages; his fee requests are inflated; and he has not supported his requests for reimbursement. (See Def. Mem. at 7-10.) As the Court finds lack of standing, it does not address those additional arguments.
Loadholt also argues that the Court should decline to consider Defendant's arguments because Defendant failed to file its opposition brief by the deadline set forth in Local Rule 6.1(b). (See Pl. Reply Mem. at 8-10 (citing, inter alia, Titus-Phillips v. British Airways PLC, No. 20-CV-5100, 2022 WL 1177306, at *4 (E.D.N.Y. Apr. 20, 2022) (“The Court may exercise its discretion to disregard arguments made in untimely papers”)).) While a court need not consider the arguments made in an untimely brief, the Court has discretion to do so, and, in any event, the Court has an independent obligation to evaluate standing regardless of whether it is raised by the parties. Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994) (“We are required to address a standing issue even if the court below has not passed on it ... and even if the parties fail to raise the issue before us”) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)) (internal brackets omitted).
(Pl. Reply Mem. at 1.) The Court agrees with Defendant. Loadholt has not satisfied the requirements of Article III standing because he offers only bare, conclusory allegations that do not allow the Court to infer he intends to return to Defendant's website.
“Pl. Reply Mem.” refers to Plaintiff's Reply Memorandum Of Law In Support Of His Motion for Default Judgment filed on September 12, 2023 (Dkt. 45).
The ADA offers private plaintiffs the prospect of only injunctive relief, not compensatory damages. Powell v. National Board of Medical Examiners, 364 F.3d 79, 86 (2d Cir. 2004) (“A private individual may only obtain injunctive relief for violations of a right granted under Title III; he cannot recover damages”). To satisfy standing requirements, “plaintiffs seeking injunctive relief must ... prove that the identified injury in fact presents a real and immediate threat of repeated injury.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013) (internal quotation marks and citations omitted). Accordingly, the Second Circuit has “found standing (and therefore an injury in fact) where (1) 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' business] to plaintiff's home, that plaintiff intended to return to the subject location.” Id. at 187-88. Here, Defendant's lack-of-standing argument turns on the third Kreisler factor - an intent to return to the site of the alleged discrimination. (See Def. Mem. at 1-7.)
In the digital context, the intent-to-return requirement can be met 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.” Loadholt v. Dungarees, Inc., No. 22-CV-4699, 2023 WL 2024792, at *2 (S.D.N.Y. Feb. 15, 2023) (citing Harty v. West Point Realty, Inc., 28 F.4th 435, 443 (2d Cir. 2022)). Conversely, “conclusory invocations of the factors ... found relevant in Kreisler are insufficient to establish standing.” Calcano, 36 F.4th at 75. Courts in this Circuit have recognized that the “Calcano decision raised the bar appreciably for adequately pleading standing to seek injunctive relief in ADA cases.” Loadholt v. Dungarees, 2023 WL 2024792, at *2; see also Tavarez-Vargas v. Annie's Publishing, LLC, No. 21-CV-9862, 2023 WL 2499966, at *2 (S.D.N.Y. Mar. 14, 2023) (same).
Here, Loadholt alleges that he visited the website with “the intent of browsing and potentially making a purchase of some home decor, specifically bonsai trees and wall scrolls.” (Am. Compl. ¶ 23.) He alleges that he “would still like to return to the Website to browse and potentially purchase these products once the online store is made accessible to him, and intends to do so once the site is made accessible.” (Id. ¶ 33.) These factual allegations are similar to the conclusory allegations at issue in Calcano, which did not establish an intent to return. See Calcano, 36 F.4th at 76 (finding that each plaintiff's assertions that “he resides in close proximity to Defendants' businesses, has been a customer at Defendant's location on prior occasions, and intends to immediately purchase at least one store gift card from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind” were “nothing more than legal conclusions couched as factual allegations” and did not establish standing) (internal quotation marks and brackets omitted). Like the plaintiffs in Calcano, Loadholt has not provided specific factual allegations that “nudge [his] claims ‘across the line from conceivable to plausible.'” Calcano 36 F.4th at 76 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009)).
Following Calcano, courts in this Circuit have required specific factual allegations to establish standing, such as details about a plaintiff's past visits to a defendant's website, the reasoning behind a plaintiff's desire for a particular product, and an explanation of a plaintiff's need to purchase products from the particular website in question. Loadholt has not made any such allegations here. For instance, he has not alleged specific facts regarding his interest in purchasing goods from Defendant, such as what caused his interest in bonsai trees and wall scrolls, why these particular bonsai trees and wall scrolls are unique, or why he desires to buy them from Defendant's website as opposed to others. Rather, Loadholt merely alleges that he visited the website twice to browse and potentially purchase Defendant's products online. Loadholt therefore has not met his burden to demonstrate that he has Article III standing.
Compare Loadholt v. Dungarees, Inc., 2023 WL 2024792, at *3 (“Plaintiff does not allege the genesis for his sudden need or want for ‘belts' and ‘jackets,' or that Dungarees is the only retailer that sells the particular belts and jackets he wants, or that he has searched for comparable belts and jackets but has been unable to find them at a comparable price point. Indeed, there are no allegations in the [complaint] as to why Plaintiff prefers belts and jackets available from Dungarees over those available from any other apparel company or other website. In short, the [complaint] fails adequately to allege Article III standing”), and Loadholt v. Game Goblins, LLC, No. 22-CV-7367, 2023 WL 6066220, at *3 (S.D.N.Y. Sept. 18, 2023) (“[Plaintiff] does not explain what board games he is interested in, whether Defendant is the only retailer who sells those games, or why he will return to Defendant to purchase them as soon as the accessibility barriers are cured. Without additional factual details, Plaintiff ... has not shown that he has suffered an injury that is concrete and particularized”) (cleaned up), with Davis v. Wild Friends Foods, Inc., No. 22-CV-04244, 2023 WL 4364465, at *6 (S.D.N.Y. July 5, 2023) (“Here, the allegations concerning intent to return are significantly more detailed than in Calcano. . Plaintiff alleges that he enjoys honeyed butter, is generally interested in organic food as part of his diet, and was interested in trying a new brand to enjoy a healthy and tasty new food. The [complaint] alleges why Plaintiff would be interested in this honey butter in particular. . The [complaint] states that it ‘is marketed as allergen friendly and a healthier eating option because Defendant does not use excess sugar or palm oil in its unique recipe for this delicious snacking option.' These allegations are sufficient to plausibly allege intent to return to establish standing”) (cleaned up), and Chalas v. Barlean's Organic Oils, LLC, No. 22-CV-04178, 2022 WL 17156838, at *3 (S.D.N.Y. Nov. 22, 2022) (“[H]ere, unlike in Calcano, Plaintiff has pled further facts to demonstrate her intent to return to Defendant's website. She states that her specific purpose in visiting Defendant's website was to buy the Stomach Repair supplements for her cousin after hearing that this product in particular could relieve her cousin's issue. While the Stomach Repair product may be sold by resellers on other websites, Plaintiff pleads sufficient facts to show why she wanted to -and continues to wish to - buy from Defendant's website in particular. ... These facts allow the court to plausibly infer that Plaintiff wishes to buy the Stomach Repair product from Defendant's website over others and, as such, will return when able to do so”) (cleaned up).
Loadholt argues Calcano is distinguishable from the instant case because Calcano “addressed the inadequate allegations of plaintiffs who vaguely and implausibly alleged the intent to return to physical locations that they were nowhere near.” (Pl. Reply Mem. at 5.) True, Loadholt's allegation that he would like to return to Defendant's website to browse and potentially purchase products is more apt than the allegations of some of the plaintiffs in Calcano who alleged that they would return to “a Kohl's that doesn't exist” and a “Banana Republic for its food.” See Calcano, 36 F.4th at 77. But Loadholt cannot escape the conclusion in Calcano that “mere profession of an intent to return to places previously visited is not enough to establish standing for prospective relief.” Id. at 77 (internal quotation marks omitted).
Indeed, courts have found allegations nearly identical to those in the instant case - including those asserted by Loadholt in other cases - insufficient to establish the requisite intent to return. See Loadholt v. Dungarees, 2023 WL 2024792, at *2 (“Setting aside the bare-bones, vague allegations that Plaintiff was ‘potentially' in the market for ‘some belts and a jacket,' Plaintiff's allegations that he visited the website ‘with the intent of shopping for and potentially making a purchase' of those items, and ‘would still like' to return to the website to ‘potentially purchase' the items, does no more to allege intent to return than the boilerplate allegations described in Calcano”); Loadholt v. Game Goblins, 2023 WL 6066220, at *3 (“Plaintiff alleges that he visited the website three times over a five-month period, to ‘browse the online store' and ‘potentially make a purchase of some board games so that he could host friends and play games with them.' He further claims that he ‘would still like to return to the website to browse and potentially purchase these products once the online store is made accessible to him,' assertions similar to those in Calcano, which were rejected by the Second Circuit”) (cleaned up); Cromitie v. Imperial Wholesale, Inc., No. 22-CV-6919, 2023 WL 5390437, at *2-3 (S.D.N.Y. Aug. 22, 2023) (“Cromitie claims to have visited the Website three times in Summer 2022 to shop ‘for some cloth tablecloths and dinner napkins,' but was unable to complete her shopping[.] ... Cromitie's vague interest in returning to the Website to ‘browse and potentially purchase these products once the online store is made accessible to her,' is ‘vague, lacking in support, and does not plausibly establish that [Cromitie] intended to return' to the Website”) (quoting Calcano 36 F.4th at 76) (cleaned up). Here, Loadholt's allegations are similarly lacking in specificity about the products he would like to buy, why he seeks to purchase them, and why he seeks to purchase them from Defendant's website.
Defendant asserts that “the need for specificity is particularly acute in the case of a serial plaintiff who simply files a bunch of nearly identical lawsuits.” (Def. Mem. at 6.) In Calcano, the Second Circuit found that it could not “ignore the broader context of Plaintiff's transparent cut-and-paste and fill-in-the-blank pleadings.” Calcano, 36 F.4th at 77 (finding that the 81 practically identical complaints filed by the four plaintiffs confirmed “the implausibility of their claims of injury”). Following Calcano, courts in this Circuit have similarly considered the backdrop of plaintiffs' “Mad-Libs-style complaints” in determining the plausibility of injury. Hennesssy, 2022 WL 4095557, at *3 (finding that plaintiff's nearly identical complaints in 79 ADA claims in the district in less than a year undermined the plausibility of injury); see also Cromitie, 2023 WL 5390437, at *3 (finding that plaintiff's dozens of “carbon-copy” ADA complaints alleging identical problems on websites confirmed the implausibility of her claims of injury); Dominguez v. Athleta LLC, No. 19-CV-10168, 2021 WL 918314, at *3 (S.D.N.Y. Mar. 10, 2021) (finding that plaintiff's 24 nearly identical ADA claims against other retailers in the district “undermine[d] the sincerity of Plaintiff's alleged intent to return to the Defendant's business”). Loadholt is the very model of a serial plaintiff who files cut-and-paste complaints: He has filed 45 nearly identical ADA actions in this district in less than six months.
See Loadholt v. ShirtSpace, No. 22-CV-02870 (filed Apr. 7, 2022); Loadholt v. Boot Barn, Inc., No. 22-CV-02876 (filed Apr. 7, 2022); Loadholt v. Swappa, LLC, No. 22-CV-03013 (filed Apr. 12, 2022); Loadholt v. Sauvage, Inc., No. 22-CV-03004 (filed Apr. 12, 2022); Loadholt v. Gravity Defyer Corporation, No. 22-CV-03064 (filed Apr. 13, 2022); Loadholt v. Apex Foot Health Industries, LLC, No. 22-CV-03058 (filed Apr. 13, 2022); Loadholt v. OrthoFeet, Inc., No. 22-CV-03977 (filed May 16, 2022); Loadholt v. Ginny's, Inc., No. 22-CV-03980 (filed May 16, 2022); Loadholt v. HSN, Inc., No. 22-CV-04231 (filed May 23, 2022); Loadholt v. YMI Jeanswear, Inc., No. 22-CV-04582 (filed June 2, 2022); Loadholt v. 101Phones, Inc., No. 22-CV-04601 (filed June 3, 2022); Loadholt v. Wolverine World Wide, Inc., No. 22-CV-04622 (filed June 3, 2022); Loadholt v. Dungarees, Inc., No. 22-CV-04699 (filed June 6, 2022); Loadholt v. Amerisourcebergen Corporation, No. 22-CV-04694 (filed June 6, 2022); Loadholt v. ooShirts Inc., No. 22-CV-04688 (filed June 6, 2022); Loadholt v. United States Games Systems, Inc., No. 22-CV-07093 (filed Aug. 19, 2022); Loadholt v. Hard Rock Cafe International (USA), Inc., No. 22-CV-07099 (filed Aug. 19, 2022); Loadholt v. Marco Destin, Inc., No. 22-CV-07090 (filed Aug. 19, 2022); Loadholt v. Inspired Design, LLC dba The Polish Pottery Outlet, No. 22-CV-07302 (filed Aug. 26, 2022); Loadholt v. The QuickZip Sheet Company, Inc., No. 22-CV-07310 (filed Aug. 26, 2022); Loadholt v. Christmas Tree Hill, Inc., No. 22-CV-07300 (filed Aug. 26, 2022); Loadholt v. Belle & Blush, LLC, No. 22-CV-07371 (filed Aug. 29, 2022); Loadholt v. Explore Scientific, LLC, No. 22-CV-07370 (filed Aug. 29, 2022); Loadholt v. Game Goblins, LLC, No. 22-CV-07367 (filed Aug. 29, 2022); Loadholt v. The Golden Bear, Inc., No. 22-CV-07421 (filed Aug. 30, 2022); Loadholt v. Artesanos Design Collection, LLC, No. 22-CV-07419 (filed Aug. 30, 2022); Loadholt v. Talon Winery, LLC, No. 22-CV-07458 (filed Aug. 31, 2022); Loadholt v. Gorsuch, Ltd., No. 22-CV-07456 (filed Aug. 31, 2022); Loadholt v. The Haunted Game Cafe, Inc., No. 22-CV-07459 (filed Aug. 31, 2022); Loadholt v. Kanga Care, LLC, No. 22-CV-07595 (filed Sept. 6 2022); Loadholt v. Herbs & Arts Intergalactic, Inc., No. 22-CV-07591 (filed Sept. 6, 2022); Loadholt v. Hight Enterprises, Ltd., No. 22-CV-07596 (filed Sept. 6, 2022); Loadholt v. H.R. Meininger Co., No. 22-CV-07705 (filed Sept. 9, 2022); Loadholt v. Myxed Up Creations, Inc., No. 22-CV-07708 (filed Sept. 9, 2022); Loadholt v. Mountain Man Fruit & Nut Co., No. 22-CV-08032 (filed Sept. 20, 2022); Loadholt v. McCarthy's Flowers Colorado, Inc., No. 22-CV-08036 (filed Sept. 20, 2022); Loadholt v. Mountain Woodcarvers, Inc., No. 22-CV-08119 (filed Sept. 22, 2022); Loadholt v. San Diego Trading Company, Inc., No. 22-CV-08118 (filed Sept. 22, 2022); Loadholt v. Christy Sports, LLC, No. 22-CV-08209 (filed Sept. 26, 2022); Loadholt v. Oriental-Decor.com Inc., No. 22-CV-08205 (filed Sept. 26, 2022); Loadholt v. CDK Enterprises, Inc., No. 22-CV-08208 (filed Sept. 26, 2022); Loadholt v. Hollywood Mega, Inc., No. 22-CV-08239 (filed Sept. 27, 2022); Loadholt v. Colorado Baby, Inc., No. 22-CV-08241 (filed Sept. 27, 2022); Loadholt v. Lambs & Ivy, Inc., No. 22-CV-08382 (filed Sept. 30, 2022); Loadholt v. Traveling Tikes, Inc., No. 22-CV-08384 (filed Sept. 30, 2022).
While acknowledging the “broader context” of Loadholt's litigiousness, the Court does not give it significant weight; the fact that a “plaintiff has filed nearly fifty complaints may just as well reflect the rampant nature of discrimination that persons with visual impairments face when using the internet.” Davis, 2023 WL 4364465, at *4. Moreover, “ADA testers” who monitor whether places of public accommodation and their websites comply with the ADA can establish standing as long as they have suffered an injury in fact. Harty v. West Point Realty, Inc., 28 F.4th 435, 444 n.3 (2d Cir. 2022) (“The law is clear that testers can have standing, but even testers have to show that they have suffered an Article III injury in fact”); Harty v. Koutsourades, No. 20-CV-2779, 2021 WL 1299495, at *6 (S.D.N.Y. Apr. 7, 2021) (“A plaintiff may be able to establish standing where the factual allegations plausibly suggest a dual motivation for plaintiff's past and future visits to Defendant'' public accommodation, i.e., a desire to both test the property for ADA compliance and avail themselves of the goods and services provided”) (cleaned up). Accordingly, Loadholt's status as a serial plaintiff does not preclude standing, but his failure to plead specific factual allegations establishing his intent to return to
Defendant's website does.
Notwithstanding the cases in which his complaints have been dismissed for lack of standing, Loadholt contends that allegations nearly identical to those alleged here were found to be sufficient in another one of his cases. (Pl. Reply Mem. at 7 (citing Loadholt v. Shirtspace, No. 22-CV-02870, 2023 WL 2368972 (S.D.N.Y. Mar. 6, 2023)). That case, however, relied in large part on reasoning from pre-Calcano decisions that held a plaintiff could establish standing by alleging in conclusory fashion when they attempted to access a website, what they were prevented from doing, and how they intended to use it in the future. See Loadholt v. Shirtspace, 2023 WL 2368972, at *2 (citing Angeles v. Grace Products, Inc., No. 20-CV-10167, 2021 WL 4340427, at *2 (S.D.N.Y. Sept. 23, 2021) (collecting cases)). That same deficiency permeates the other pre-Calcano cases Loadholt cites to argue that he has sufficiently alleged injury in fact. (See Pl. Reply Mem. at 3-7 (citing Quezada v. United States Wings, Inc., No. 20-CV-10707, 2021 WL 5827437 (S.D.N.Y. Dec. 7, 2021); Camacho v. Vanderbilt University, No. 18-CV-10694, 2019 WL 6528974 (S.D.N.Y. Dec. 4, 2019); Juscinska v. Paper Factory Hotel, LLC, No. 18-CV-8201, 2019 WL 2343306 (S.D.N.Y. June 3, 2019).
Finally, Loadholt argues that Defendant cannot challenge the plausibility of Loadholt's allegations because “defendant has admitted each and every one of these factual allegations.” (Pl. Reply Mem. at 8 (emphasis in original) (citing Prepared Food Photos, Inc. v. Trip Restaurant LLC, No. 22-CV-07953, 2023 WL 2955298, at *3 (S.D.N.Y. Apr. 14, 2023) (“By failing to answer the Complaint, a defendant is deemed to have admitted the factual allegations in the Complaint”)).) Not so. “A defendant who defaults thereby admits all “well-pleaded” factual allegations contained in the complaint. City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (emphasis added). As discussed above, the allegations in the Amended Complaint that address Loadholt's standing are not “well-pleaded” because they lack the specificity and particularization required to plausibly allege an intent to return to Defendant's website. Therefore, they are not deemed admitted as a result of Defendant's default.
In sum, Loadholt fails to allege standing to bring his ADA claim. And because Plaintiff's NYCHRL claims are “governed by the same standing requirements as the ADA,” Mendez v. Apple Inc., No. 18-CV-7550, 2019 WL 2611168, at *4 (S.D.N.Y. Mar. 28, 2019), he also fails to allege standing with respect to injunctive relief under the NYCHRL. Unlike the ADA, however, the NYCHRL provides for compensatory and punitive damages. N.Y.C. Admin. Code §§ 8-120(a)(8), 8-126(a) and 8-502(a). Even so, with dismissal of Loadholt's only federal law claim, the Court should decline to exercise supplemental jurisdiction over Loadholt's NYCHRL claim for monetary relief. See 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”); Calcano, 36 F.4th at 78 (affirming dismissal of ADA claims for lack of standing and finding that “the district court acted within its discretion in declining to exercise supplemental jurisdiction over Plaintiffs' state and local law claims”) (citing Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001) (affirming dismissal of plaintiff's ADA claim and directing district court to dismiss without prejudice plaintiff's state and municipal law claims because “in the absence of any remaining federal claims, the appropriate analytic framework to be applied to discrimination claims based on a ‘disability' as defined by New York state and municipal law is a question best left to the courts of the State of New York”)); Tucker v. Denny's Corp., No. 19-CV-9843, 2021 WL 4429220, at *2 (S.D.N.Y. Sept. 27, 2021) (declining to exercise supplemental jurisdiction over state and city claims given dismissal of ADA claim).
Conclusion
For the foregoing reasons, I recommend that Plaintiff's motion for default judgment be DENIED and the action be DISMISSED without prejudice to an amended pleading. To the extent not discussed herein, the Court has considered the parties' arguments and determined them to be without merit.
Deadline For Filing Objections And Preserving Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Any party shall have fourteen (14) days to file a written response to the other party's objections. Any such objections and responses shall be filed with the Clerk of the Court, with courtesy copies delivered to the Chambers of the Honorable Arun Subramanian, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, at United States Courthouse, 500 Pearl Street, New York, New York 10007. Any request for an extension of time for filing objections must be addressed to Judge Subramanian. Failure to file timely objections will result in a waiver of the right to object and will preclude appellate review.