Got Non-Dairy Milk?

by Ellen Whitehair, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

Dunkin’ Donuts is being sued for allegedly violating the Americans with Disabilities Act (“ADA”) by charging consumers who cannot consume dairy products a surcharge for requesting that non-dairy milk alternatives be used in their beverages.¹ If the class action lawsuit is successful, consumers can possibly say goodbye to the hefty surcharges attached to non-dairy substitutions in their morning coffee. However, that does not necessarily mean that consumers will not be ultimately charged more for those alternatives—the cost just would not be represented as a surcharge. However, the parties in Garland, et al. v. Dunkin’ Donuts must first navigate the contours of the ADA in litigation before consumers will see any changes.

The success of this class action is hard to predict at such an early stage in litigation, but the public now has insight as the parties’ initial arguments. Part II of this article will walk through the basic arguments included in the plaintiffs’ complaint and Dunkin’s motion to dismiss. Part III will examine the arguments that have the greatest likelihood of determining the class action lawsuit’s outcome. Part IV offers a brief conclusion, in addition to highlighting the potential effects this lawsuit could have on surcharges for accessible products.

II. Background

Chelsea Garland is the lead plaintiff that represents a class of consumers across the United States who faced a surcharge for requesting the use of non-dairy milk alternatives in their Dunkin’ beverages.² Garland is a resident of California, lactose intolerant, and an avid purchaser of Dunkin’ beverages.³ Garland is joined in name by nine other plaintiffs (collectively referred to as “Plaintiffs”), all of whom are unable to consume dairy milk because of medical conditions and were also charged extra for non-dairy milks at Dunkin’.⁴ Three of these plaintiffs reside in California, one in Hawaii, two in New York, one in Colorado, one in Massachusetts, and one in Texas.⁵ The class action lawsuit was filed in the Northern District of California with the expectation litigation will be bound by California law.

The named Plaintiffs are all lactose intolerant or allergic to dairy milk. If the Plaintiffs were to drink dairy milk, they would suffer adverse health consequences. Consequently, the plaintiffs order their Dunkin’ beverages with non-dairy milk substitutes derived from oats, almonds, soy, coconuts, etc.⁶ Depending on the location, the Plaintiffs were charged between $0.50 and $2.15 more for the use of non-dairy milk in beverages that regularly use dairy milk.⁷

A. Plaintiffs’ Arguments Against Dunkin’

The Plaintiffs allege that Dunkin’ is violating the ADA by charging consumers an “excessively high” surcharge for ordering non-dairy milks.⁸ The Plaintiffs’ complaint alleges that Dunkin’ is discriminating against those that are lactose intolerant or allergic to dairy in violation of the ADA by charging them more than consumers without a dairy-related disability.⁹ Accordingly, the Plaintiffs seek declaratory and injunctive relief that would require Dunkin’ to charge the same price for beverages with non-dairy milks as their dairy-full menu counterpart.¹⁰

The Plaintiffs’ argument begins with the fact that Dunkin’, as a public accommodation, has an obligation to make reasonable modifications for people with disabilities under the ADA.¹¹ Because Dunkin’ provides non-dairy milks to consumers, the Plaintiffs argue that it may not impose the extra cost of those alternatives on consumers with disabilities by way of a surcharge.¹² Citing the 2008 amendment to the ADA in favor of broadening the Act’s protections, the Plaintiffs argue that lactose intolerance is a disability under the ADA.¹³ Because of this, Dunkin’s surcharge violates the ADA because it places the cost of a reasonable modification on people with disabilities.¹⁴

The Plaintiffs dedicate substantial space to explaining how lactose intolerance constitutes a disability under the ADA.¹⁵ Drawing from the statute’s language, the Plaintiffs describe lactose intolerance as the type of impairment that substantially limits one or more major life activities.¹⁶ The Plaintiffs’ complaint concludes that lactose intolerance is a disability because it is an impairment that substantially limits the ability of those with said impairment to drink beverages and digest dairy products.¹⁷ The ability to drink beverages and digest dairy products is a major life activity.¹⁸ It is crucial to the Plaintiffs’ argument that the Court agrees that lactose intolerance is a disability within the meaning of the ADA.

B. Dunkin’s Personal Jurisdiction Arguments

Dunkin’ responded to the Plaintiffs’ complaint by filing a strongly worded motion to dismiss.¹⁹ The motion asserts two primary grounds for dismissal: (1) lack of personal jurisdiction, and (2) failure to properly state a claim.²⁰ Dunkin’s first contention, lack of personal jurisdiction, is based on Federal Rule of Civil Procedure 12(b)(2).²¹ This rule requires a civil defendant to bring certain defenses, including lack of personal jurisdiction and failure to state a claim, within their initial response to the plaintiff’s complaint.²² When challenged, the plaintiff bears the burden of assuring a federal court that it has both personal and subject-matter jurisdiction over the parties.²³ Subject-matter jurisdiction generally requires diversity of the parties and either a federal question or an amount in “controversy” that exceeds $75,000 to be at play.²⁴ In addition to subject-matter jurisdiction, parties must show the court has personal jurisdiction over the plaintiff.²⁵ Personal jurisdiction encompasses three concepts: amenability, notice, and minimum contact.²⁶

Dunkin’ argued that the Northern District California Court lacks personal jurisdiction over it because it does not have minimum contacts in California.²⁷ The “minimum contact” requirement is rooted in due process because defendants have a statutory right to be reasonably apprised of the law that would apply to them in a dispute.²⁸ Dunkin’ cited a 2021 case that laid out two requirements to establish personal jurisdiction: (1) a defendant must purposefully avail itself of the privilege of conducting activities in the forum state; and (2) a plaintiff’s claims must arise out of or relate to the defendant’s contacts with the forum state.²⁹ Both elements speak to the type of contact a defendant can have with a forum state to satisfy personal jurisdiction.³⁰

Dunkin’ argues that it did not purposefully avail itself of activities within California because all Dunkin’ locations in the state are owned and operated by franchisees.³¹ The franchisees, according to the motion, retain control over the policies and practices at their establishments, not Dunkin’ as a corporation.³² For this reason, Dunkin’ argues that it has not purposefully availed itself of activities in California—just its franchisees have.³³

Alternatively, Dunkin’ argues that if the Court does find they have minimum contacts in California by way of their Californian consumers, then the Court lacks specific personal jurisdiction over claims of the individual plaintiffs that did not live or suffer the alleged harm in California.³⁴ Class action lawsuits require each plaintiff in a class to prove personal jurisdiction over a defendant.³⁵ In this case, Dunkin’ argues that only the four California-residents can demonstrate a connection between the harm they suffered and the forum state for the lawsuit.³⁶ With respect to the other plaintiffs, they are unable to show a causal connection between the conduct giving rise to their individual claim and the forum state.³⁷ Dunkin’ points out that “general business contacts” in a forum state will not themselves give rise to specific personal jurisdiction.³⁸

C. Dunkin’s Failure to State a Claim Arguments

Dunkin’s second argument, alleging Garland “[failed] to properly state a claim,” is rooted in the Federal Rules of Civil Procedure (“FRCP”) Rule 12(b)(6).³⁹ Like personal jurisdiction and FRCP 12(b)(2), FRCP 12(b)(6) requires a civil defendant to state that the plaintiff failed to properly state a claim in their initial responsive pleading.⁴⁰ “Failure to state a claim” is an umbrella term that means that the plaintiff failed to make an argument that could result in relief from the courts.⁴¹ This phrase also alludes to the basic pleading requirements imposed on plaintiffs when drafting their complaint.⁴² Dunkin’ Donut challenges Garland’s ADA claim on four grounds: (1) Dunkin’ is not a place of public accommodation, (2) Plaintiffs have failed to demonstrate they are disabled within the meaning of the ADA, (3) Plaintiffs failed to put the Dunkin’ stores on notice of their disability or need for modification, and (4) the ADA does not require “accessible goods” to be the same price as non-accessible goods.⁴³

Dunkin’ argued it is not the owner of the applicable places of public accommodation within the meaning of Title III of the ADA.⁴⁴ Title III is the section of the ADA that prohibits discrimination on the basis of disability status with respect to the activities of public accommodations.⁴⁵ In order for Title III to apply, the defendant must own, operate, or lease a public accommodation.⁴⁶ In this case, Dunkin’ specifically argues that the Plaintiff failed to plead that Dunkin’ owns, operates, or leases the specific locations the Plaintiffs visited because of their extensive franchising structure.⁴⁷ Taking language from the Ninth Circuit, Dunkin’ states that the franchisees have “significant degrees of control over the access related aspects of the facil[ities] in question.”⁴⁸ Accordingly, Dunkin’ argues that the complaint fails to adequately plead that Dunkin’ owned a public accommodation where the Plaintiffs experienced disability discrimination.⁴⁹

Dunkin’ next argues that the Plaintiffs failed to adequately state in their pleading that they are disabled within the meaning of the ADA.⁵⁰ The ADA defines “disability” as a “physical… impairment that substantially limits one or more major life activities of such an individual.”⁵¹ The Plaintiffs defined lactose intolerance and an allergy to dairy as disabilities covered by the ADA.⁵² While the complaint does outline typical symptoms of those conditions, Dunkin’ states that the Plaintiff failed to adequately outline how the Plaintiffs individually experienced those symptoms.⁵³ Dunkin’ concludes that the Plaintiffs’ complaint is insufficient to show that they each were disabled in such a way that their major life activities were substantially limited as required by the ADA.⁵⁴

Thirdly, Dunkin’ asserts that the Plaintiffs failed to put Dunkin’ on notice of their disability, need for ADA accommodation, or request for a disability modification.⁵⁵ While the ADA does not explicitly require an establishment to be on notice of a disability or disability-related accommodation, Dunkin’ argues that notice or knowledge is necessary where plaintiffs bring a claim of discrimination.⁵⁶ Put simply, “[i]f Dunkin’ had no knowledge of any disability, then there cannot be a viable Title III claim… Absent allegations that Dunkin’ knew that Plaintiffs’ condition requires a modification, there can be no viable Title III claim.”⁵⁷ Dunkin’ finally argues that because the Plaintiffs did not explicitly tell Dunkin’ employees of their disability or need for accommodation, Dunkin’ was not given any opportunity to comply or deny the request.⁵⁸ Dunkin’ argues that notice, knowledge, and a denied request are requirements to bring a Title III claim.⁵⁹

Lastly, Dunkin’ argues that the Plaintiffs’ ADA claim fails as a matter of law for two reasons. First, Dunkin’ asserts that the ADA does not require public accommodations to offer “accommodation goods” at all, let alone sell them at the same price as their non-accessible counterparts.⁶⁰ Drawing comparison from case law, Dunkin’ explains that while a bookstore cannot deny people with disabilities access to the books they carry, they are not required to ensure all books are available in braille as well as print.⁶¹ This analogy supports Dunkin’s argument that the ADA does not require public accommodations to carry goods that are accessible to disabled people.⁶² Further, the ADA does not require public accommodations to provide accessible goods at the same price as non-accessible goods, particularly where the products are distinct from one another.⁶³

Dunkin’s further states that the ADA does not prohibit their surcharge for non-dairy milk alternatives.⁶⁴ Courts have set out guidelines for evaluating whether surcharges violate the ADA.⁶⁵ This inquiry should consider whether (1) the surcharge is used to cover the cost of the ADA-mandated measure, and (2) whether non-disabled people incur the same surcharge.⁶⁶ With respect to these factors, Dunkin’ argues that the inquiry ends at prong one because non-dairy milk alternatives are not an ADA-mandated measure.⁶⁷ Regardless, should the inquiry progress to the second prong, Dunkin’ asserts that all customers incur the same surcharge, regardless of disability status.⁶⁸ For these reasons, Dunkin’ argues that the Plaintiffs’ ADA claims are legally flawed and unworthy of credence.⁶⁹

III. Discussion

As wonderful as it would be for consumers to see a world without dairy-related surcharges, this class actions lawsuit is unlikely to achieve the ultimate goal of lower priced oat milk lattes. Not only is the Plaintiffs’ application of the ADA cumbersome, but the practical effect of this lawsuit is likely to be that Dunkin’ incorporates the value of the surcharge into the sticker price of all beverages with dairy. However, if the class action were successful, it would impact countless businesses that have grown accustomed to up-charging for substitutions to their menu items. The success of the class action will likely come down to the court’s consideration of whether Dunkin’ was on notice of the Plaintiffs’ disabilities and when a disabled customer can incur the cost of an accommodation.

A. Personal Jurisdiction

Dunkin’s attack on personal jurisdiction argument is hard to digest. Dunkin’ claims that it does not have minimum contact with California (the forum state) by virtue of its franchising agreements with California Dunkin’-branded restaurants.⁷⁰ Dunkin’ wipes its hands of its role in franchise management because each establishment can set their specific beverage prices and Dunkin’ merely makes them aware of their obligation to comply with the ADA.⁷¹ However, this argument is unconvincing in proving that Dunkin’s franchise relationship with Californian restaurants does not constitute minimum contact with California. Dunkin’s franchise agreements with Californian restaurants are sufficient to demonstrate that Dunkin’ availed itself of the privilege of conducting business in California. Dunkin’ is unlikely to prevail on its supplemental jurisdiction argument.

B. Lactose Intolerance as a Disability Under the ADA

Title III of the ADA explicitly instructs those interpreting the Act to read it “broadly in favor of expansive coverage to the maximum extent covered by the ADA.”⁷² This section of the Act goes on to say that the primary focus of cases brought under the ADA should be on public accommodations’ compliance with ADA obligations and their discriminatory actions, not “whether an individual meets the definition of ‘disability.’”⁷³ This language is instructive and weighs in favor of the Plaintiffs with respect to the classification of lactose intolerance as a disability. Dunkin’ does not meaningfully address the ADA’s expansive language, but instead attacks the Plaintiffs’ “generalized allegations” and “conclusory” language asserting that they all experience a covered disability.⁷⁴

Dunkin’s argument that the Plaintiffs failed to provide the Court with sufficient information to determine that each Plaintiff has a disability is unconvincing.⁷⁵ Both the fact that this lawsuit is a class action and the case’s early stages cut against Dunkin’ assertion. These facts reduce the level of factual specificity that is practical at the pleading stage. The Plaintiffs must only file a “well-pleaded complaint” that contains sufficient facts that plausibly suggest⁷⁶ Dunkin’ hits on the fact that the Plaintiffs do not explain how each individual person in the class experiences their lactose intolerance.⁷⁷ However, due to the massive size of the class action, the Court is unlikely to require the Plaintiffs to provide such extensive detail for each class member at the pleading stage.

C. Does Dunkin’ Own, Lease, or Rent the Places of the Public Accommodation?

There is no question that Dunkin’ restaurants fall within the ADA’s definition of public accommodation. Per Title III § 36.104, “[a] restaurant, bar, or other establishment serving food or drink,” is a place of public accommodation.⁷⁸ Dunkin’ sells both food and drink, falling squarely within the ADA’s definition of public accommodations. The issue Dunkin’ raises is that the Plaintiffs do not specify which Dunkin’ locations they visited, nor do they explicitly reference the “franchised nature of Dunkin’-branded restaurants.”⁷⁹ Because of this lack of specificity, Dunkin’ alleges that the Plaintiffs fail to properly plead that the Dunkin’ restaurants in question were public accommodations owned, leased, or operated by Dunkin’ Donuts, LLC.⁸⁰ This argument is anchored in the Plaintiffs’ pleading requirements, but also alludes to Dunkin’ purported lack of control over the restaurants it franchised.

Dunkin’ focuses on the meaning of “operate,” concluding that is does not operate the relevant restaurants because it does not directly control those restaurants’ modifications for those that are disabled.⁸¹ In support of this, Dunkin’ states they do not control prices of individual items (as a potentially modification for lactose intolerance) and it expressly places the burden of ADA compliance on individual franchise owners.⁸² The Plaintiffs’ complaint merely states that Dunkin’ operates relevant restaurants without additional detail as the legal relationship between Dunkin’ and its franchisees.⁸³

With respect to the operation of the public accommodations, the Plaintiffs likely satisfy their pleading requirements. However, moving forward, the language of Dunkin’s franchise agreements with their franchisees and the extent of control Dunkin’ exercises over franchisees will become relevant. While Dunkin’ may not dictate pricing down to the cent, the franchise agreement may include price ranges or suggested pxrice points for items. Additionally, it will be relevant to understand how Dunkin’ presents ADA compliance obligations to its franchisees, and whether that is enough for Dunkin’ to evade ADA liability. Lastly, Plaintiffs will certainly be asked about specific locations they visited, and it will become clear how many are owned by Dunkin versus how many are owned by franchisees. All these facts will contribute to the Court’s determination of whether Dunkin’ owned or operated the relevant restaurants for purposes of the ADA. Without more information, the merits of Dunkin’ argument on this point are unclear.

D. Did the Plaintiffs Place Dunkin’ on Notice of their Disability?

The issue of notice is one of Dunkin’ strongest arguments against the viability of the Plaintiffs’ lawsuit. For a public accommodation to discriminate per Title III, the plaintiff must have notified the public accommodation of their need for a disability-related modification and been denied that request.⁸⁴ Dunkin’ asserts that the Plaintiffs did not tell the cashiers that they experience lactose-intolerance and thus needed an accommodation.⁸⁵ Instead, the Plaintiffs ordered a beverage and requested non-dairy milk be used in place of dairy milk, then were charged for this substitution.⁸⁶ The Plaintiffs did not apparently state the basis of their request for non-dairy milk, nor is disability the only reason that a consumer would request non-dairy milk.⁸⁷ There is no language in the Complaint that would suggest that the Plaintiffs did provide any context to their ordering of non-dairy milk to the cashiers before the surcharge was assigned.⁸⁸

Customers order non-dairy milks for many reasons including health benefits, taste preferences, and medical conditions. Dunkin’ correctly claims that an employee cannot reliably assume that because of a customer requests a non-dairy beverage that they experience a dairy-related disability.⁸⁹ If the Plaintiffs did not give any indication that their request for non-dairy milk was predicated on a non-obvious disability, Dunkin’ employees could not have known to remove the surcharge from the reasonable modification. The circumstances do not give rise to the conclusion that Dunkin’ knew of the Plaintiffs’ disabilities when charging them more for non-dairy milk.

Dunkin’ takes their argument a step further by stating that even if the Plaintiffs had notified the cashier of their lactose intolerance, that notification alone would not be enough to infer that non-dairy milk is a reasonable accommodation.⁹⁰ Again, the ADA requires public accommodations to make certain modifications that permit disabled patrons to enjoy the privileges and benefits of the public accommodation.⁹¹ Dunkin’ does not contest that non-dairy milk could be a reasonable accommodation, but rather that the Plaintiffs did not express their need for such accommodation at the time of purchase.⁹² Dunkin’ argues this because there are many different levels of lactose intolerance, permitting some with the condition to tolerate milk in small doses while others can have extremely adverse reactions.⁹³ However, a reasonable person (like a cashier) could infer there is a connection between a stated lactose allergy and ordering non-dairy milk. At the very least, such a notification ought to trigger additional questions before charging a customer more for the requested substitution. The ADA does not require Plaintiffs to bear their medical history at the register—it would likely be sufficient notification where the Plaintiffs shared their disability status with the cashier in the same transaction as requesting non-dairy milk. Notably, however, the Plaintiffs do not allege they shared their status as disabled with the cashiers at the time of ordering.⁹⁴

In short, Dunkin’ has a strong argument against Title III liability where the Plaintiffs merely ordered non-dairy milk. However, if the Plaintiffs did share their lactose allergy with the cashier, this information coupled with their ordering of non-dairy milk is enough to put Dunkin’ on notice that the non-dairy milk was a reasonable accommodation.

E. Who Bears the Financial Burden of Reasonable Accommodations?

Dunkin’ finally claims the Plaintiffs failed to state a viable ADA claim because Dunkin’ is not required to sell non-dairy milks at the same price as dairy milks.⁹⁵ While the Plaintiffs agree that Dunkin’ is not required to offer non-dairy milks to its customers, they claim that because it does offer them upon special request, it may not impose a surcharge on disabled people ordering them.⁹⁶ Within this argument, non-dairy milks are functionally an “accessible good” or “special good” that affords disabled individuals the opportunity to enjoy the accommodation’s activities (selling dairy beverages) equally.⁹⁷ Citing § 36.301 of the ADA, the Plaintiffs state that Dunkin’ cannot impose the cost of an accessible good on people with disabilities.⁹⁸

Passing over the issue of offering accessible goods for sale, the question comes down to whether the increase in price for non-dairy milks is appropriately distributed to all customers regardless of disability status.⁹⁹ There are two factors used to evaluate the propriety of an ADA-related surcharge: (1) whether it is used to cover the costs of the ADA-mandated measures, and (2) is it a charge that non-disabled people would not incur.¹⁰⁰ Dunkin’ claims the surcharge is appropriate because its restaurants are not mandated to offer accessible goods like non-dairy milks, and further, non-disabled customers also incur the surcharge.¹⁰¹ The Plaintiffs, however, see the offering of non-dairy milks as necessary to permit disabled people full enjoyment of Dunkin’s activities.¹⁰² In the Plaintiffs’ view, because Dunkin’ opened the door and permits special requests, charging lactose intolerant customers for this accommodation is discriminatory.¹⁰³

Related to this argument is the question of whether non-dairy milks are sufficiently like dairy milk to be readily substituted. Put differently, are the items related enough that they could be easily substituted for one another without materially changing the product offering. The Plaintiffs and Dunkin’ take opposite positions. The Plaintiff alleges that non-dairy milks are approximately the same cost to buy as their dairy counterpart and they require no additional training for employees to use them in Dunkin’ beverages.¹⁰⁴ Because of this, the Plaintiffs further allege that Dunkin’s surcharge is not to accommodate for the cost of the non-dairy alternative, but rather just to profit off consumers that require the alternative.¹⁰⁵ Alternatively, Dunkin’ argues that dairy and non-dairy milks are entirely different products, akin to red versus white wine.¹⁰⁶ Dunkin’ cites two circuit court cases to support this proposition but does not actually allege that these different products differ in retail or labor cost.¹⁰⁷ Whether dairy and non-dairy milks are similar products or “two distinct food products,” the reasonableness of the surcharge is tangentially relevant to the reasonableness of the disability modification sought by the Plaintiffs. The weight that the Court will ascribe to this discrepancy is unclear in this context.¹⁰⁸

Both parties present viable arguments for and against the surcharge assigned to customers that order non-dairy milks. Because of this, the Plaintiffs likely satisfied their pleading requirements, and the Court should move forward to address this issue.

IV. Conclusion

Unfortunately, consumers may be crying over spilt milk at the conclusion of Garland, et al. v. Dunkin’ Donuts. While the Plaintiffs have very likely satisfied their pleading requirements to survive Dunkin’s motion to dismiss, the merits of their arguments are difficult to access without additional information. However, even if the Plaintiffs were to prevail after a lengthy litigation battle (or drawn-out settlement negotiation), Dunkin’ is likely to respond by merely incorporating the surcharge into the cost of all beverages irrespective of the type of milk they use. If not, Dunkin’ may remove dairy milk from its offerings altogether, further disadvantaging those that are lactose intolerant. In an ideal world, this lawsuit would culminate in less expensive beverages for those that are lactose intolerant at Dunkin’ and beyond. In reality, this lawsuit may just force underground the practice of up-charging for non-dairy milks, or worse, embolden other restaurants to employ surcharges for accessible goods they offer.

Cover Photo by Aldrin Rachman Pradana on Unsplash

Ellen Whitehair

References

1
Complaint at 2-4, Garland v. Dunkin’ Donuts, LLC, No. 3:23-cv-06621 (N.D. Cal. filed Dec. 26, 2023); See generally Americans with Disabilities Act, 42 U.S.C. § 12182. For purposes of this article, “non-dairy milk alternatives” and “non-dairy milks” will refer to soy, almond, coconut, and lactose-free “milks.” Garland and Dunkin’ similarly group the previous list under “non-dairy milk alternatives.”
2
Complaint, supra note 1, at 2.
3
Id. at 5.
4
Id. at 5-6.
5
Id.
6
Id. at 2.
7
Id.
8
Id. at 4.
9
Id. at 4 (arguing Dunkin’s conduct violates the California Unruh Civil Rights Act, the Colorado Anti-Discrimination Act, Hawaii Discrimination Act, Texas Human Resource Code, Massachusetts Anti-Discrimination Law, New York Civil Rights Law, and the common law principle of unjust enrichment).
10
Id.
11
Id. at 13; 23 C.F.R. § 36.302(a).
12
Complaint, supra note 1, at 13.
13
Id. at 14; ADA Amendments Act of 2008 (“ADAAA”), 42 U.S.C. § 12101, Sec. 3 Codified Findings.
14
Complaint, supra note 1, at 13-15.
15
Id. at 14.
16
Id.
17
Id.
18
Id.
19
Defendant’s ‘Motion to Dismiss at 1, Garland v. Dunkin’ Donuts, LLC, No. 3:23-cv-06621 (N.D. Cal. filed Mar. 4, 2024).
20
Id.
21
Id. at 5; Fed. R. Civ. P. 12(b)(2).
22
Mot. to Dismiss, supra note 19, at 8 (arguing for dismissal based upon “failure to state a claim”); This specific defense is listed under FRCP 12(b)(6) and discussed in greater detail below. Notably, had Dunkin’ failed to raise the issue of personal jurisdiction in their initial responsive filing, the argument would have been waived. Personal jurisdiction is a disfavored defense. Fed. R. Civ. P. 12(h)(1).
23
See generally Lonny Hoffman, Burdens of Jurisdictional Proof, 59 Ala. L. Rev. 409 (2008).
24
28 U.S.C. § 1332(a).
25
See generally Robin Effron, The Lost Story of Notice and Personal Jurisdiction, 74 N.Y.U. Ann. Surv. of Am. L. 23 (2019).
26
Id.
27
Mot. to Dismiss, supra note 19, at 1, 5 (notably the parties appear to agree that the court does not have general jurisdiction over Dunkin’ because they are not “essentially at home” in the state, meaning they are not incorporated and principally located in California) (citing Ford Motor Co. v. Mont. Eighth District Court, 141 S.Ct. 1017 (2021)).
28
Effron, supra note 25, at 30.
29
Ford Motor Co. v. Mont. Eighth Dist. Ct., 141 S.Ct. 1017 (2021); Complaint, supra note 1, at 5-8.
30
Id.
31
Complaint, supra note 1, at 6.
32
Id.
33
Id.
34
Mot. to Dismiss, supra note 19, at 1.
35
Id. at 7.
36
Id. at 8.
37
Id.
38
Id. at 7.
39
Fed. R. Civ. P. 12(b)(6).
40
Id.
41
Failure to State a Claim, Cornell L. Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/failure_to_state_a_claim (last visited Apr. 11, 2024).
42
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (1955); Fed. R. Civ. P. 8(a)(2).
43
Mot. to Dismiss, supra note 19, at 2.
44
Id. at 8; 42 U.S.C. § 12181(7)(B); Public Accommodations and Commercial Facilities (Title III), ADA (defining “Public accommodations” as establishments such as “restaurants, movie theaters, schools, day care facilities,” etc.), https://archive.ada.gov/ada_title_III.htm (last visited May 6, 2024).
45
42 U.S.C. § 12181(7)(B). (specifying what is a “covered” public accommodation).
46
Id.
47
Mot. to Dismiss, supra note 19, at 8-10.
48
Id. at 9.
49
Id. at 8-10.
50
Id. at 10.
51
Id. at 10; 28 C.F.R. § 36.201.
52
Complaint, supra note 1, at 14.
53
Mot. to Dismiss, supra note 19, at 11.
54
Id.
55
Id. at 12.
56
Id.
57
Id. at 13.
58
Id.
59
Id. at 14.
60
Id.
61
Id. at 15.
62
Id.
63
Id. at 14-15.
64
Id. at 17.
65
Id.
66
Id.
67
Id. at 17-18.
68
Id. at 18.
69
Id. at 14.
70
Mot. to Dismiss, supra note 19, at 5-6.
71
Id. at 6.
72
28 C.F.R. § 36.101(b) (purpose and broad coverage).
73
Id.
74
Mot. to Dismiss, supra note 19, at 11.
75
Id. (arguing that the “Plaintiffs do not allege how being lactose intolerant specifically affects each of them individual if they consume dairy products—that is, they do not plead facts sufficient to allow the Court to determine if their specific experience with dairy products amounts to a disability.”).
76
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (1955); Ashcroft v. Iqbal, 556 U.S. 662 (2009). (elaborating on Twombly and providing a distinction between facts & conclusions).
77
Mot. to Dismiss, supra note 19, at 11.
78
28 C.F.R. § 36.104.
79
Mot. to Dismiss, supra note 19, at 8.
80
Id.
81
Id. at 9.
82
Id.
83
See generally Complaint, supra note 1.
84
Mot. to Dismiss, supra note 19, at 13.
85
Id. at 12.
86
Id.
87
Id.
88
See generally Complaint, supranote 1.
89
Mot. to Dismiss, supra note 19, at 12.
90
Id. at 13.
91
Id.
92
Id.
93
Id.
94
See generally Complaint,supra note 1.
95
Mot. to Dismiss, supra note 19, at 14.
96
Complaint, supra note 1, at 17-18.
97
Id. at 17.
98
Id.
99
There is no need to dive deeply into this argument because Defendant Dunkin clearly does source and sell non-dairy milks in all its restaurant locations. The central inquiry is whether Dunkin’ can charge those with disabilities (in addition to the public at large) more for the use of that accessible good.
100
Mot. to Dismiss, supra note 19, at 17 (citing Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531, 545 (Pa. 2013)).
101
Mot. to Dismiss, supra note 19, at 17-18.
102
Complaint, supra note 1, at 17-19. (noting Defendant Dunkin effectively “opened the door” by offering non-dairy milks upon special request, and in the Plaintiffs’ view, accommodating other types of special requests for disabled individuals).
103
Id.
104
Id. at 9.
105
Id.
106
Mot. to Dismiss, supra note 19, at 15.
107
Id.
108
The reasonableness of a disabled person’s request is a familiar analysis under the ADA, but there does not appear to be a similar reasonableness analysis with respect to a public accommodation’s upcharge. However, both parties explore the similarities and differences of dairy to non-dairy milk to justify or discredit the reasonableness of the surcharge imposed of all consumers that request non-dairy milks.