                                                                           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                            NOT FOR PUBLICATION                             NOV 22 2011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.




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