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San Francisco, CA - A California federal judge indicated Friday she's inclined to dismiss a proposed class action claiming Dunkin Donuts LLC violates the Americans with Disabilities Act by charging extra for beverages with nondairy milk, but said she'll likely allow the plaintiff customers to amend their complaint.

U.S. District Judge Susan Illston said at the start of Friday's virtual hearing that a revised complaint would need to address Dunkin's assertions it doesn't control its franchisees and should also bolster the customers' claims about their lactose intolerance.

"The essential question ... which we need to resolve before we can go much further is jurisdiction," the judge said. "I will give you leave to amend and also to do some preliminary discovery that would allow you to flesh out the jurisdictional allegations."

In its filed motion to dismiss, Dunkin' — the company dropped the word "Donuts" from its name and logo in 2019 — said the court didn't have jurisdiction to pull it into California federal court.

Dunkin' "has not engaged in any activities that would render it subject to specific jurisdiction in California," the motion said. "Dunkin' has no role in this matter. It does not own, operate, or lease any Dunkin'-branded restaurants, the vast majority of which are franchised."

Brett Coburn of Alston & Bird LLP, counsel for Dunkin', argued that an amendment wouldn't solve the fundamental issue of jurisdiction.

"There's no recognition in the complaint that they are trying to sue stores that are operated by a collection of franchisees, not by one corporate defendant," Coburn said.

The customers' claims that Dunkin Donuts LLC operates all of the restaurants isn't enough, plus there are no allegations that the company controls how its franchisees handle ADA matters in general or dictates how its franchisees set pricing, Coburn told the judge.

Judge Illston also told the customers that she needed more information about lactose intolerance and how it constitutes a disability. Specifically, she said, she wanted to know for each plaintiff what kind of lactose intolerance they have, what effect it has on their lives, and what essential life activity is impaired.

"It's got to be more than drinking lattes, I would think," the judge said.

Coburn said that in addition to failing to plead that the customers are actually disabled within the meaning of the ADA, the claim fails because the ADA doesn't require businesses to sell an accessible good at the same price as one deemed non-accessible. The plaintiffs were charged the same amount for nondairy as other customers, Coburn said.

Finally, he said, Dunkin' and its franchisees are not required to offer nondairy alternatives.

A lawyer for the plaintiffs, Keith Gibson of Keith Gibson Law PC, said a revised complaint could be filed with more details on the conditions and effects lactose intolerance has had on his clients.

"Are you alleging that all symptoms of lactose intolerance are disabling?" the judge asked.

Gibson said yes. He compared lactose-intolerance to Type 1 diabetes. While not everyone with the condition has the same reaction or symptoms when they ingest sugar, it's still a disability that could be covered under the ADA, Gibson said.

He said his clients' litigation is similar to one against the restaurant chain P.F. Chang's. In Phillips v. P.F. Chang's China Bistro Inc., a California federal judge held in 2015 that the plaintiff had stated a claim under the ADA related to a higher-priced gluten-free menu presented to customers with celiac disease.

"I think that ultimately, we will be able to allege sufficient detail and facts to support lactose intolerance as a disability covered by the by the ADA," Gibson told the judge.

The suit, filed in December, claims Dunkin' charged the customers 50 cents to $2 extra for substituting dairy with soy, oat, coconut, or almond options in their drinks.

The 10 named plaintiffs say they are lactose intolerant or have a milk allergy and suffer adverse health effects if they have milk or milk-containing products, including stomach pain, digestive tract inflammation, bloating, bowel irregularities, and vomiting.

They say Dunkin' will modify its regular beverage offerings to remove sugar or use sugar-free sweeteners at no additional charge for those persons with diabetes or who aim to control weight.

"Defendant discriminates against plaintiffs and the putative class members by levying a surcharge for its non-dairy alternatives ... added to its coffee-based drinks and other beverages," the complaint says.

The customers are represented by Trenton R. Kashima of Milberg Coleman Bryson Phillips Grossman PLLC and Keith L. Gibson and Bogdan Enica of Keith Gibson Law PC.

Dunkin' is represented by David B. Carpenter, Brett E. Coburn, and Meghan M. McBerry of Alston & Bird LLP.

The case is Garland et al. v. Dunkin Donuts LLC, case number 3:23-cv-06621-SI, in the U.S. District Court for the Northern District of California.