FILED
NOT FOR PUBLICATION NOV 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALEXANDER STERN, No. 10-55348
Plaintiff - Appellant, D.C. No. 2:09-cv-07710-PA-FFM
v.
MEMORANDUM *
SONY CORPORATION OF AMERICA;
SONY COMPUTER ENTERTAINMENT
AMERICA, INC.; SONY ONLINE
ENTERTAINMENT, LLC,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted November 17, 2011 **
Pasadena, California
Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff-Appellant Alexander Stern appeals the district court’s grant of
Defendant’s Rule 12(b)(6) motion to dismiss. Under Title III of the Americans
with Disabilities Act (ADA), “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or operates a place of public
accommodation.” 42 U.S.C. § 12182(a). In interpreting the term “place of public
accommodation” in the context of the long list of “public accommodations”
contained in § 12181(7)–all of which “are actual, physical places where goods or
services are open to the public”–this Court has found that Title III requires “some
connection between the good or service complained of and an actual physical
place.” Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir.
2000). This view is supported by 28 C.F.R. § 36.104, which specifies that a place
of public accommodation is “a facility operated by a private entity,” and defines
“facility” to mean “all or any portion of buildings, structures, sites, complexes,
equipment, rolling stock or other conveyances, roads, walks, passageways, parking
lots, or other real or personal property, including the site where the building,
property, structure, or equipment is located.”
2
A video game is not a facility, and Stern has failed to allege a sufficient
connection between Sony’s video games and a facility owned, leased, or operated
by Sony. Stern has failed to show that Sony’s brick-and-mortar retail stores are
sufficiently analogous to the movie theater at issue in Arizona v. Harkins
Amusement Enters., Inc., 603 F.3d 666 (9th Cir. 2010). Stern alleges that his
visual impairments and the inaccessibility of Sony’s video games prevent him from
fully and equally enjoying the games, which in turn hinders his ability to fully and
equally enjoy the privileges and advantages of attending marketing events
associated with the games that are hosted by Sony. This connection is too tenuous
to support a cause of action under the ADA.
AFFIRMED.
3