Skaff v. Meridien North America Beverly Hills, LLC ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD SKAFF, 
Plaintiff-Appellant, No. 06-55434
v.
 D.C. No.
CV-05-00027-R
MERIDIEN NORTH AMERICA BEVERLY
HILLS, LLC, e/s/a Le Meridien, OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
April 16, 2007—Pasadena, California
Filed November 1, 2007
Before: Jerome Farris and Ronald M. Gould, Circuit Judges,
and Kevin Thomas Duffy,* District Judge.
Per Curiam Opinion;
Dissent by Judge Duffy
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
14333
14336 SKAFF v. MERIDIEN NORTH AMERICA
COUNSEL
Sidney J. Cohen, Sidney J. Cohen Professional Corporation,
Oakland, California, for plaintiff-appellant Richard Skaff.
David E. Novitski and E. Todd Chayet, Thelen Reid & Priest
LLP, Los Angeles, California, for defendant-appellee Meri-
dien North America Beverly Hills, LLC.
OPINION
PER CURIAM:
We review an order of the district court denying the motion
of Richard Skaff, a disabled individual, for attorneys’ fees and
SKAFF v. MERIDIEN NORTH AMERICA 14337
costs in an action he brought against a hotel pursuant to the
Americans With Disabilities Act (“ADA”) and California
civil rights laws. Because the district court erred by conclud-
ing that it had no authority under either the ADA or California
law to award fees and costs after the parties reached a settle-
ment, we vacate the district court’s order and remand the case
with instructions that the district court consider the merits of
Skaff’s motion for fees and costs.
I
Because the district court concluded that there was no
standing based on the allegations of the complaint as filed, we
recite the facts of this case as Skaff alleged them in his com-
plaint. Skaff is a paraplegic who must use a wheelchair for
mobility. Meridien North America Beverly Hills, LLC oper-
ated the Le Meridien hotel (collectively, “Le Meridien” or
“hotel”) in Beverly Hills, California.1 About two weeks before
a visit to Le Meridien, Skaff called the hotel and made a res-
ervation for the night of May 9, 2004. When Skaff made his
reservation, he told the Le Meridien reservation agent that he
used a wheelchair and that he needed an accessible room with
a roll-in shower. Skaff reiterated his need for an accessible
room with a roll-in shower when he checked into Le Meridien
two weeks later. However, Le Meridien assigned Skaff to a
room with a bathtub. Skaff at once told the hotel staff of the
problem, and, after a one-hour delay, Le Meridien provided
Skaff with a room that had a roll-in shower. The roll-in
shower in that room, however, did not have a wall-hung
shower chair. This prevented Skaff from using the shower
because Skaff cannot stand on his own. Skaff reported this
problem to the hotel staff and asked if the hotel had a portable
1
Le Meridien has since closed and will reopen under a new name
in early 2008. See Le Meridien at Beverly Hills,
http://www.starwoodhotels.com/lemeridien/property/overview/
announcements.html?propertyID=1907#conditions (last visited July 25,
2007).
14338 SKAFF v. MERIDIEN NORTH AMERICA
shower chair that he could use. The staff eventually found a
portable shower chair for Skaff, and he was able to take a
shower the following morning.
In addition to the problems with the shower described
above, paragraph 14 of Skaff’s complaint alleged more gener-
ally that “during the course of his stay at the Hotel, Plaintiff
encountered numerous other barriers to disabled access,
including ‘path of travel,’ guestroom, bathroom, telephone,
elevator, and signage barriers to access, all in violation of fed-
eral and state law and regulation.” Additionally, paragraph 17
of Skaff’s complaint asserted that “[u]ntil Defendants make
the Hotel and its facilities accessible to and useable by Plain-
tiff, he is deterred from returning to the Hotel and its facili-
ties.”
Skaff sought injunctive relief pursuant to Title III of the
ADA and injunctive relief and damages pursuant to Califor-
nia’s state civil rights laws. Skaff also sought attorneys’ fees,
litigation expenses, and costs pursuant to both the ADA and
California law. The parties settled all issues relating to injunc-
tive relief and damages at a settlement conference before a
magistrate judge. However, the parties did not settle the issue
of attorneys’ fees and costs, and, in the parties’ settlement
agreement, Skaff retained the option to file a motion for such
fees and costs if the parties could not further settle the matter.
When the parties could not reach a settlement on fees and
costs, Skaff filed a motion in the district court.
The district court denied Skaff’s motion for attorneys’ fees
and costs. In its order denying the motion, the district court
made the following findings of fact. First, the district court
found that “[t]he only specific denial of disabled access that
Plaintiff alleged in his complaint was the Defendant’s delay
in providing him a room with a roll-in shower and shower
chair.” The district court determined that “[t]he Defendant
remedied these matters within hours of Plaintiff’s request.”
Also, the district court found that, in his complaint, Skaff “did
SKAFF v. MERIDIEN NORTH AMERICA 14339
not complain of or identify other features of the hotel that he
wanted to use but was denied access to or otherwise prevented
from using.” In addition, the district court noted that Le Meri-
dien “was given neither notice of the violations, as is required
by the ADA, nor the opportunity to remedy them” before
Skaff sued. Finally, the district court found that “[i]n the past
three years, Plaintiff has filed at least 21 lawsuits similar to
the case at bar in California federal courts alone.”
The district court based its denial of attorneys’ fees on the
following conclusions of law. First, the district court deter-
mined that, when Skaff filed his complaint, he did not have
standing to pursue his claims. Because in the district court’s
view the only ADA or state law violations Skaff alleged in his
complaint were the problems with the shower, and because Le
Meridien remedied those problems promptly during Skaff’s
visit, the district court concluded that his complaint did not
allege an “injury in fact.” The district court then concluded
that because Skaff lacked standing from the outset of the case,
the court had no authority to award fees, notwithstanding the
settlement agreement. Additionally, the district court deter-
mined that Skaff was not entitled to attorneys’ fees under Cal-
ifornia state law because he did not attempt to settle his
dispute with Le Meridien before filing suit, citing the Califor-
nia Supreme Court’s decision in Graham v. DaimlerChrysler
Corp., 101 P.3d 140 (Cal. 2004). Skaff appeals the district
court’s order denying his motion for an award of attorneys’
fees, litigation expenses, and costs.
II
We review the district court’s findings of fact for clear
error. San Diego County Gun Rights Comm. v. Reno, 98 F.3d
1121, 1124 (9th Cir. 1996). We review for abuse of discretion
the district court’s decision to deny a motion for attorneys’
fees. Labotest, Inc. v. Bonta, 297 F.3d 892, 894 (9th Cir.
2002). A district court abuses its discretion when it denies
attorneys’ fees based on an inaccurate view of the law. Entm’t
14340 SKAFF v. MERIDIEN NORTH AMERICA
Research Group, Inc. v. Genesis Creative Group, Inc., 122
F.3d 1211, 1216-17 (9th Cir. 1997). We review de novo any
questions of law underlying the district court’s decision to
deny fees, including the question of whether a party had
standing to pursue its claim. Hartman v. Summers, 120 F.3d
157, 159 (9th Cir. 1997). The district court’s interpretation
and construction of the ADA and the California civil rights
laws are also questions of law that we review de novo. Soltani
v. W. & So. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir.
2001).
III
We begin with the unassailable premise that “standing is an
essential and unchanging part of the case-or-controversy
requirement of Article III.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). Constitutional standing has three
elements. First, the plaintiff must have suffered an “injury in
fact” that is concrete, particularized, and actual or imminent.
Second, there must be a causal link between the injury and the
conduct of which the plaintiff complains. Third, it must be
likely that a favorable decision will redress the plaintiff’s
injury. Id. at 560-61. In this case, the district court concluded
that Skaff did not have standing because his complaint did not
allege an injury in fact.
We must follow the rule that if a plaintiff does not allege
standing in its complaint, we have no jurisdiction to hear the
case. Bernhardt v. County of Los Angeles, 279 F.3d 862, 868
(9th Cir. 2002). A court that lacks jurisdiction at the outset of
a case lacks the authority to award attorneys’ fees. Branson
v. Nott, 62 F.3d 287, 292-93 (9th Cir. 1995); Smith v. Brady,
972 F.2d 1095, 1097 (9th Cir. 1992); Latch v. United States,
842 F.2d 1031, 1033-34 (9th Cir. 1988).2 Although the district
2
Because, in the district court’s view, Skaff’s complaint did not ade-
quately allege injury giving rise to his standing to sue, the district court
concluded that it lacked jurisdiction from the outset of the case and thus
SKAFF v. MERIDIEN NORTH AMERICA 14341
court correctly identified the above rule, it erred in concluding
that Skaff had no standing because of his failure to allege
injury.
[1] Our case law provides guidance on how to determine
whether an ADA plaintiff has suffered an injury in fact suffi-
cient to give that plaintiff standing and to give us jurisdiction.
In Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,
1138-39 (9th Cir. 2002), we held that a plaintiff has standing
to challenge barriers in a public accommodation under the
ADA when he has actually encountered those barriers. Pick-
ern further held that a plaintiff may challenge barriers not per-
sonally encountered if those barriers have deterred the
plaintiff from patronizing the public accommodation. The key
problem with the district court’s ruling here is that the district
court was wrong in stating that Skaff had not alleged any
problem other than the quickly-remedied shower deficiencies
and in thus concluding that Skaff had not alleged an injury in
fact. To the contrary, Skaff had explicitly alleged that he per-
sonally encountered other barriers to access, and that was suf-
ficient to allege an injury in fact.3
did not have authority to award attorneys’ fees. Ordinarily, the appropriate
disposition of a motion for attorneys’ fees when the court lacked jurisdic-
tion from the outset of an action is not denial of the motion, as the district
court did here, but dismissal of the motion for lack of jurisdiction. In re
Knight, 207 F.3d 1115, 1117 (9th Cir. 2000); Branson, 62 F.3d at 292-93.
3
The dissent’s contention that our reasoning would allow individuals
with disabilities to bring ADA claims without having even entered the
building or having any knowledge of violations is simply incorrect. If
Skaff’s complaint had just asserted general categories of violations with-
out attesting to Skaff’s personal knowledge of or experience with those
violations, then no injury in fact would have been pled under the standard
established in Pickern. However, paragraph 14 of Skaff’s complaint
alleged that he personally encountered several types of access barriers dur-
ing his stay at the hotel, and paragraph 17 stated that he would be deterred
from returning to the hotel until those violations were corrected. Skaff’s
complaint therefore articulated the elements of injury required to prove
Article III standing at the pleadings stage.
14342 SKAFF v. MERIDIEN NORTH AMERICA
The existence of standing turns on the facts as they existed
at the time the plaintiff filed the complaint.4 Lujan, 504 U.S.
at 569 n.4. Though the party invoking our jurisdiction bears
the burden of establishing that party’s standing, “[a]t the
pleading stage, general factual allegations of injury resulting
from the defendant’s conduct may suffice.” Id. at 561.
Because the district court based its conclusion that there was
no standing when the initial complaint was filed on the district
court’s assessment of the language of the complaint,5 we look
4
Thus, the fact that Le Meridien has closed since Skaff’s visit does not
affect our analysis of whether Skaff pled that he had standing to pursue
his claims.
5
In its initial “Findings of Fact” numbers 1-3, the district court recited:
“1. The only specific denial of disabled access that Plaintiff alleged in his
complaint was the Defendant’s delay in providing him a room with a roll-
in shower and shower chair. 2. The Defendant remedied those matters
within hours of Plaintiff’s request. 3. At the time, Plaintiff did not com-
plain of or identify other features of the hotel that he wanted to use but
was denied access to or otherwise prevented from using.” In its “Conclu-
sions of Law” numbers 2-5, the district court held: “2. A party invoking
federal jurisdiction bears the burden of establishing its standing to bring
suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To do so,
the plaintiff must demonstrate an injury in fact that is concrete and particu-
larized and actual or imminent as opposed to conjectural or hypothetical.
Id. at 560-61. Standing must exist at the time the action is filed and cannot
be established by showing later actions of post-filing intent. Id. at 569-70
n.4. 3. In light of the above findings of fact, Plaintiff suffered no injury
at the hands of the Defendant that would support a claim under the ADA
or state law. 4. The alleged ADA and California Civil Code violations that
Plaintiff identified only after the case had progressed, his consultant had
visited the site, and settlement negotiations were underway do not retroac-
tively give rise to an injury in fact. 5. Because Plaintiff lacks standing, this
Court has no authority to award attorneys’ fees. Smith v. Brady, 972 F.2d
1095, 1097 (9th Cir. 1992); Latch v. United States, 842 F.2d 1031, 1033-
34 (9th Cir. 1988).”
Thus it is clear beyond doubt from the district court’s reasoning in its
decision that the district court did not think the complaint alleged any
“specific denial of disabled access” beyond the shower problem, which
was remedied, and that standing had to be determined as of the time of the
complaint. However, as noted above, the complaint did allege generally
SKAFF v. MERIDIEN NORTH AMERICA 14343
to Skaff’s complaint to determine whether he had standing,
accepting as true all of the complaint’s material allegations.
See Bernhardt, 279 F.3d at 867.6
[2] Federal Rule of Civil Procedure 8(a)(1)-(2) requires
only that a complaint contain “a short and plain statement of
the grounds upon which the court’s jurisdiction depends” and
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” When enacted, Rule 8 eliminated
the archaic system of fact pleading found in the state codes of
pleading applied by the federal courts under the 1872 Confor-
mity Act. Today, “[t]he only function left to be performed by
the pleadings alone is that of notice.” 5 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1202,
at 89 (3d ed. 2004); see Erickson v. Pardus, 127 S. Ct. 2197,
that plaintiff had encountered various obstacles to his access, and whether
those general allegations are sufficient to show injury for standing pur-
poses takes our analysis, we think inescapably, to an assessment of the
requirements of notice pleading under Federal Rule of Civil Procedure 8.
Hence we disagree with our dissenting colleague who argues that this case
has nothing to do with pleading, and instead analyzes the record in terms
of the summary judgment standard. An analysis of these proceedings from
the standpoint of summary judgment is not, in our view, supported by the
record, for the district court’s findings of fact and conclusions of law show
no suggestion that the court was making a decision on the merits by appli-
cation of the summary judgment standard. To the contrary the district
court lucidly, though we conclude incorrectly, explained its view that no
injury had been pleaded in the complaint beyond the shower problem that
was promptly remedied.
6
The dissent argues that the rule of Bernhardt is inapplicable because
the parties engaged in some informal discovery, and the district court
reviewed the file in camera. The dissent argues that the district court’s rul-
ing that there was no standing and hence no jurisdiction over the attor-
ney’s fees issue is “akin to a motion for summary judgment rather than a
motion to dismiss.” However, as we explain herein, our reading of the dis-
trict court’s decision shows that the district court was making an assess-
ment of standing based on the allegations of the complaint, and this
inescapably raises the issue of whether the complaint was pleaded ade-
quately to show injury.
14344 SKAFF v. MERIDIEN NORTH AMERICA
2200 (2007). Rule 8’s concluding admonishment that “[a]ll
pleadings shall be so construed as to do substantial justice”
confirms the liberality with which we should judge whether
a complaint gives the defendant sufficient notice of the
court’s jurisdiction. Fed. R. Civ. P. 8(f).
Le Meridien argues, and the district court agreed, that the
only denial of access that Skaff alleged in his complaint was
Le Meridien’s delay in providing him with a roll-in shower
and shower chair. Because Le Meridien remedied these prob-
lems during Skaff’s visit, Le Meridien maintains, and the dis-
trict court agreed, that Skaff had not suffered an injury in fact
at the time he filed his complaint.
[3] We agree that the initial mistake in assigning a room to
Skaff with a bathtub rather than a roll-in shower caused no
cognizable damage because it was immediately corrected by
reassignment to a room with a roll-in shower as had been
requested. Similarly, the initial absence of a shower chair was
promptly corrected, and Skaff had a chair he could use in the
roll-in shower by the next morning. Skaff suffered no cogni-
zable injury concerning the shower because Le Meridien
promptly corrected its errors. The ancient maxims of de
minimis non curat lex and lex non curat de minimis teach that
the law cares not about trifles. 1 Alexander M. Burrill, A New
Law Dictionary and Glossary 334 (Lawbook Exchange, Ltd.
1998) (1st ed. 1850) (reciting the maxim of de minimis non
curat lex, translated as “[t]he law does not care for, or take
notice of trifling matters”); 2 Stewart Rapalje & Robert L.
Lawrence, A Dictionary of American and English Law 751
(Lawbook Exchange, Ltd. 1997) (1888) (reciting the maxim
of lex non curat de minimis, translated as “[t]he law cares not
about trifles”); see Jewell v. Parr, (1853) 13 C.B. 909, 916,
138 Eng. Rep. 1460, 1463 (C.P.) (“Applying the maxim de
minimis non curat lex, when we say that there is no evidence
to go to a jury, we do not mean that there is literally none, but
that there is none which ought reasonably to satisfy a jury that
the fact sought to be proved is established.”); Baxter v.
SKAFF v. MERIDIEN NORTH AMERICA 14345
Faulam, (1746) 1 Wils. K.B. 129, 129, 95 Eng. Rep. 532, 532
(K.B.) (holding that an apprentice was not required to pay
taxes on his salary of six pence, noting that “this case falls
under the saying of de minimis non curat lex”); Bright v.
Smith, (1704) 2 Freeman 279, 280, 22 Eng. Rep. 1210, 1210
(Ch.); Wats v. Dix, (1649) 82 Eng. Rep. 647, 647 (K.B.) (dis-
cussing counsel’s argument that a lease made at the direction
of a deed in trust was valid because the lease varied only
slightly from the direction in the deed, and “de minimis non
curat lex”); see also Black’s Law Dictionary 464 (8th ed.
2004) (reciting the maxim of de minimis non curat lex, trans-
lated as “[t]he law does not concern itself with trifles”). This
principle frequently has been followed by the Supreme Court.
E.g., Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505
U.S. 214, 231 (1992) (stating that “the venerable maxim de
minimis non curat lex (‘the law cares not for trifles’) is part
of the established background of legal principles against
which all enactments are adopted, and which all enactments
(absent contrary indication) are deemed to accept,” collecting
cases); Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 618
(1992). The mere delay during correction of the problem with
the shower is too trifling of an injury to support constitutional
standing.
[4] However, we hold that, in paragraphs 14 and 17 of his
complaint, Skaff pled injuries that gave him standing to pur-
sue this case.7 Paragraph 14 discusses Skaff’s encounters with
accessibility barriers, other than the barrier of the inaccessible
showers, at Le Meridien:
7
The dissent’s use of an equation drawn from “mathematical logic” adds
nothing to the analysis, because it relies on the conclusion that the only
injury Skaff suffered was the lack of an accessible shower, an injury dis-
counted to 0 because it was so promptly remedied. This formulation sim-
ply ignores the allegations in paragraphs 14 and 17 of Skaff’s complaint,
which, while sparse, were adequate to establish injury in fact under the lib-
eral parameters of notice pleading.
14346 SKAFF v. MERIDIEN NORTH AMERICA
During the course of his stay at the Hotel, Plaintiff
encountered numerous other barriers to disabled
access, including “path of travel,” guestroom, bath-
room, telephone, elevator, and signage barriers to
access, all in violation of federal and state law and
regulation[.] The facilities should be brought into
compliance with all applicable code requirements.
The record does not show that at the time Skaff filed his suit,
Le Meridien had remedied any of the violations Skaff alleged
that he encountered during his visit and identified in para-
graph 14. Skaff’s allegations that he encountered the above
barriers, though succinct, gave Le Meridien notice of what
Skaff’s claims were and that he had personally encountered
barriers and thus had standing to pursue their elimination.
In paragraph 17, Skaff alleged: “Until Defendants make the
Hotel and its facilities accessible to and useable by Plaintiff,
he is deterred from returning to the Hotel and its facilities.”
This allegation of deterrence was also sufficient to give Le
Meridien notice of Skaff’s standing to challenge the barriers
under Pickern.
[5] In light of the allegations of paragraph 14, the district
court committed clear error in finding that (1) the only denial
of disabled access Skaff alleged in his complaint was the
delay in providing him a room with an accessible shower and
shower chair and (2) at the time Skaff filed his complaint, he
did not complain of or identify other features of the hotel that
he wanted to use but to which he was denied access. As a
matter of law, the allegations in paragraph 14 that Skaff
encountered barriers to access, and the allegation in paragraph
17 that Skaff was deterred by accessibility barriers from visit-
ing Le Meridien, gave Le Meridien notice of the injury Skaff
suffered and, at the pleading stage, established Skaff’s stand-
ing to sue for violations of the ADA.
In view of our colleague’s dissent, it may be useful to
explain our view of where and how we part company.
SKAFF v. MERIDIEN NORTH AMERICA 14347
Although the district court said it would review the whole file
before ruling on the motion for attorneys’ fees, we view the
district court’s reasoning in its findings of fact and conclu-
sions of law, as set out in pertinent part in footnote 5, to
amount to a holding that the initial complaint as pleaded did
not sufficiently allege injury, beyond the shower incident that
was promptly remedied. The district court wholly ignored
paragraphs 14 and 17 of the complaint, to which we attach
some significance. Although our dissenting colleague feels
that the informal discovery and the court’s review of the file
warrant assessing this case under a summary judgment stan-
dard, nowhere in the district court’s clear findings of fact and
conclusions of law does the court state, or even hint, that it is
applying a summary judgment standard. Accordingly, we
respectfully but unequivocally disagree with our colleague’s
argument that a summary judgment standard is applicable and
that the allegations of the complaint should not be viewed as
true for purposes of our review.
In spite of the minimal hurdle of notice imposed by Rule
8, Le Meridien contends that Skaff pled no constitutional
injury because he did not allege the existence of specific
accessibility barriers with sufficient detail. Le Meridien main-
tains that Skaff inadequately pled his standing because
“[t]here is no evidence in the record that Plaintiff encountered
any of [the] barriers” he identified in his complaint. Le Meri-
dien essentially urges us to require ADA plaintiffs to plead
the existence of accessibility barriers in specific detail and to
support such pleadings with evidence that the plaintiff
encountered those barriers.
Le Meridien’s argument ignores the purpose of a complaint
under Rule 8—to give the defendant fair notice of the factual
basis of the claim and of the basis for the court’s jurisdiction.
“Specific facts are not necessary . . . .” Erickson, 127 S. Ct.
at 2200. Le Meridien would essentially impose a heightened
pleading standard upon ADA plaintiffs, even though the
Supreme Court has repeatedly instructed us not to impose
14348 SKAFF v. MERIDIEN NORTH AMERICA
such heightened standards in the absence of an explicit
requirement in a statute or federal rule. Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 515 (2002) (rejecting heightened
pleading standard for Title VII employment discrimination
suits); Leatherman v. Tarrant County Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 164 (1993) (rejecting
heightened pleading standard for § 1983 suits asserting
municipal liability); see Bell Atl. Corp. v. Twombly, 127 S. Ct.
1955, 1973 n.14 (2007); cf. Private Securities Litigation
Reform Act of 1995, Pub. L. No. 104-67, § 101(b), 109 Stat.
737, 747 (imposing heightened pleading standard for securi-
ties fraud class actions) (codified at 15 U.S.C. § 78u-4(b)(1)-
(2)); Fed. R. Civ. P. 9(b) (imposing heightened pleading stan-
dard for complaints of fraud or mistake).
Though the jurisdictional allegations in Skaff’s complaint
were succinct, concerns about specificity in a complaint are
normally handled by the array of discovery devices available
to the defendant. In fact, Le Meridien used some of those
devices in this case. Le Meridien attempted to elicit the basis
for paragraph 14 with contention interrogatories pursuant to
Federal Rule of Civil Procedure 33, requiring Skaff to detail
the barriers he personally encountered. Although Le Meridien
complains that Skaff’s interrogatory answers only referred to
the same general allegations in the complaint, Le Meridien
did not move to compel more complete answers. Le Meridien
could have asked Skaff formally what barriers he had encoun-
tered, where they were in the hotel, when he encountered
them, what he did about it, whether any person was present
when he encountered the barriers, and, for each barrier, what
damages he claimed to have suffered. If Le Meridien believed
that Skaff gave conclusory answers to interrogatories on this
score, Le Meridien was free to move to compel more com-
plete answers pursuant to Rule 37 in light of what is relevant
during discovery under Rule 26.8 Le Meridien also had the
8
In response to Le Meridien’s interrogatory asking Skaff to
“[s]pecifically identify every barrier to disabled access [he] encountered
SKAFF v. MERIDIEN NORTH AMERICA 14349
option of taking Skaff’s deposition pursuant to Rule 27 and
inquiring on such points, testing his credibility with cross-
examination. Le Meridien could also have sent requests for
admission, pursuant to Rule 36, asking, for example, for con-
clusive admissions that Skaff had not encountered barriers not
identified by him in interrogatories or deposition. In any
event, when notice of a claim is given that satisfies Rule 8,
concerns about specificity in a complaint are properly
addressed through discovery devices under Rules 26, 27, 33,
and 36, and, if applicable, the pre-trial order entered pursuant
to Rule 16. Le Meridien did not use available discovery and
procedural tools that could have compelled specificity.
Accordingly, we conclude that there is no sound basis on
which to override our normal standing and notice pleading
requirements in a quest for more specificity.9 The district
court thus erred in concluding that Skaff’s complaint did not
allege Skaff’s standing to pursue his claims.10
during [his] stay at the hotel,” Skaff identified the lack of a wall-hung
shower chair in the room with a roll-in shower, the lobby bar, the room
thermostat, the room doors, the room closet (including its clothes racks,
its raised floor, and the location of the iron), the guest room’s bathroom
(including its toilet grab bar and towel racks), the public men’s restroom,
the pay phones in the hotel lobby, the elevator’s control buttons, and the
building directory. Skaff also supplied an email he sent Le Meridien less
than one week after his visit. In the email, Skaff provided a detailed
account of his visit to the hotel.
9
If it develops that discovery shows that a party did not have a good-
faith basis for the general factual allegations made in a complaint, then
that party will be subject to sanctions under the normal standards. See
Molski v. Evergreen Dynasty Corp., No. 05-56452, 2007 WL 2458547 at
*14 and n.8 (9th Cir. Aug. 31, 2007) (per curiam). Moreover, if there is
a persistent pattern of unfounded allegations, in an appropriate case a liti-
gant or his or her counsel may be subjected to the rigors of a pre-filing
order. See id.
10
In reaching the conclusion that the allegations of the complaint were
sufficient to show Skaff’s injury and standing, we express no opinion on
whether Skaff was entitled to an award of attorneys’ fees. We hold only
that because Skaff had standing, the district court should have considered
his motion for attorneys’ fees on the merits. We need not decide whether
14350 SKAFF v. MERIDIEN NORTH AMERICA
IV
[6] In addition to concluding that Skaff could not seek
attorneys’ fees under the ADA or California law because he
lacked standing, the district court also held that Skaff could
not seek attorneys’ fees under California law because he did
not attempt to settle his dispute with Le Meridien prior to fil-
ing suit. Section 1021.5 of the California Code of Civil Proce-
dure permits an award of attorneys’ fees to a “successful
party” in an “action which has resulted in the enforcement of
an important right affecting the public interest.”
The district court cited the California Supreme Court’s
decision in Graham v. DaimlerChrysler Corp., 101 P.3d 140
(Cal. 2004), for the proposition that California law required
Skaff to attempt settlement before filing suit in order to
recover attorneys’ fees pursuant to section 1021.5. Graham
was a case in which the plaintiff sought attorneys’ fees pursu-
ant to section 1021.5 under the “catalyst” theory. The catalyst
theory defines who is a “successful party” in cases in which
“litigation does not result in a judicial resolution.”11 Id. at 144.
an award of fees in any particular amount would have been unjust under
the circumstances of the case, or whether it would have been an abuse of
discretion for the district court to deny fees in their entirety or to limit fees
to an amount substantially less than those claimed. Those issues are only
properly reached after the district court, with cognizance of standing, has
made a ruling on attorneys’ fees.
11
Under the catalyst theory, a party is “successful,” even if the litigation
does not result in a judicially-sanctioned change in the parties’ legal rela-
tionship, when the defendant voluntarily changes its behavior because of,
and in the manner sought by, the litigation. Graham, 101 P.3d at 144.
In Buckhannon Board & Care Home, Inc. v. West Virginia Department
of Health & Human Resources, 532 U.S. 598, 600 (2001), the United
States Supreme Court rejected the catalyst theory as a means to recover
fees as a “prevailing party” under the ADA and other federal fee-shifting
statutes. See 42 U.S.C. § 12205 (ADA fee-shifting provision, providing
that the court “may allow the prevailing party, other than the United
SKAFF v. MERIDIEN NORTH AMERICA 14351
However, because Skaff’s litigation resulted in a judicial reso-
lution, the catalyst theory does not apply in this case. Specifi-
cally, the district court dismissed Skaff’s case and explicitly
retained jurisdiction to enforce the settlement agreement.
[7] Because Skaff did not need to satisfy the conditions set
forth in Graham, we conclude that he was a “successful
party” in this case. The California Supreme Court has “taken
a broad, pragmatic view of what constitutes a ‘successful
party.’ ” Id. at 147; see also County of Colusa v. Cal. Wildlife
Conservation Bd., 145 Cal. App. 4th 637, 649 (2006). The
court defines the term “successful party” in section 1021.5 to
mean “the party to the litigation that achieves its objectives.”
Graham, 101 P.3d at 151. Under California law, “[i]t is undis-
puted that relief obtained through a settlement may qualify a
plaintiff as the prevailing party.” Lyons v. Chinese Hosp.
Ass’n, 136 Cal. App. 4th 1331, 1345 (2006).
[8] Skaff’s litigation achieved its objective of obtaining
injunctive relief to make Le Meridien accessible. Pursuant to
the settlement agreement, Le Meridien agreed to remedy
sixty-three of the sixty-nine instances of noncompliance with
States, a reasonable attorney’s fee, including litigation expenses[ ] and
costs”).
In Graham, the California Supreme Court endorsed the catalyst theory
as a means for a plaintiff to show that it was a “successful party” under
section 1021.5, but imposed two additional requirements on plaintiffs
seeking fees under the catalyst theory. First, the plaintiff’s suit must have
had some merit, and, second, the plaintiff must have engaged in a reason-
able attempt to settle the dispute before filing litigation. Graham, 101 P.3d
at 144; see also Tipton-Whittingham v. City of Los Angeles, 101 P.3d 174,
177 (Cal. 2004) (“In order to obtain attorney fees without . . . a judicially
recognized change in the legal relationship between the parties, a plaintiff
must establish that (1) the lawsuit was a catalyst motivating the defendants
to provide the primary relief sought; (2) that the lawsuit had merit and
achieved its catalytic effect by threat of victory, not by dint of nuisance
and threat of expense, as elaborated in Graham; and, (3) that the plaintiffs
reasonably attempted to settle the litigation prior to filing the lawsuit.”).
14352 SKAFF v. MERIDIEN NORTH AMERICA
federal and state accessibility laws that had been identified by
the consultant hired by Skaff. Skaff also obtained $15,000 in
damages through the settlement agreement. The settlement
agreement and the district court’s order dismissing the case
provided that the district court would retain jurisdiction to
enforce the agreement. The judicially-sanctioned and court-
enforceable settlement agreement in this case renders Skaff a
“successful party.”12 Because Skaff did not make use of the
catalyst theory, California law did not require him to make a
reasonable attempt to settle before filing suit. The district
court erred in concluding that Skaff was not entitled to attor-
neys’ fees under California law because he did not attempt a
pre-suit settlement.
V
In its order denying Skaff’s motion for attorneys’ fees, the
district court also stated that the ADA required Skaff to give
Le Meridien notice of the violations he intended to challenge
in his lawsuit, and that Skaff never gave such notice.
Although the district court’s order did not explicitly indicate
the significance of the fact that Skaff did not give pre-suit
notice, the district court, which made a factual finding on the
lack of pre-suit notice, apparently viewed pre-suit notice as a
prerequisite to recovering attorneys’ fees under the ADA. Cf.
Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028, 1033 (C.D.
Cal. 2005) (requiring, in ADA cases, a pre-suit warning to the
defendant and a reasonable opportunity to cure the violation
as a prerequisite to the plaintiff’s recovery of attorneys’ fees),
12
Skaff is also a prevailing party under the ADA pursuant to Buckhan-
non, which held that “court-ordered consent decrees create the ‘material
alteration of the legal relationship of the parties’ necessary to permit an
award of attorney’s fees.” Buckhannon, 532 U.S. at 604 (quoting Tex.
State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93
(1989)). Likewise, in Barrios v. California Interscholastic Federation, 277
F.3d 1128, 1134 (9th Cir. 2002), we held that “[u]nder applicable Ninth
Circuit law, a plaintiff ‘prevails’ when he or she enters into a legally
enforceable settlement agreement against the defendant.”
SKAFF v. MERIDIEN NORTH AMERICA 14353
vacated and remanded, No. 05-55942, 2007 WL 1492921
(9th Cir. May 21, 2007). For the reasons that follow, however,
we hold that the ADA contains no such notice requirement,
and we decline to imply one.
[9] The text of the ADA contains no pre-suit notice require-
ment. If Congress believes it is preferable as a matter of pol-
icy to require plaintiffs to give notice to defendants before
filing an ADA suit, it is free to amend the Act. Congress must
surely be aware of the arguments in favor of a pre-suit notice
requirement, as bills requiring notification have been intro-
duced with no success in the last four Congresses. See H.R.
2804, 109th Cong. (2005); H.R. 728, 108th Cong. (2003);
H.R. 914, 107th Cong. (2001); S. 782, 107th Cong. (2001);
H.R. 3590, 106th Cong. (2000); S. 3122, 106th Cong. (2000);
see also Samuel R. Bagenstos, The Perversity of Limited Civil
Rights Remedies: The Case of “Abusive” ADA Litigation, 54
U.C.L.A. L. Rev. 1, 16-20 (2006) (discussing and critiquing
the political movement in favor of amending the ADA to
include a notice requirement). Unless and until Congress sees
fit to engraft a notice requirement onto the ADA, we apply the
ADA as written without a pre-filing notice requirement.
[10] Our analogous precedent also buttresses the conclu-
sion that ADA plaintiffs are not required to provide pre-suit
notice to defendants. In Botosan v. Paul McNally Realty, 216
F.3d 827, 830 (9th Cir. 2000), we considered whether a plain-
tiff was required to notify the state or local agency charged
with enforcing the applicable state civil rights laws prior to
filing a private lawsuit under Title III of the ADA. The defen-
dants, arguing in favor of a pre-suit notice requirement, sug-
gested that the pre-suit notice requirement explicitly provided
for in Title VII of the Civil Rights Act of 1964 should apply
to suits under the ADA. Id. at 831. Rejecting the defendants’
argument, we instead held that the language of 42 U.S.C.
§ 12188(a)(1), the provision of the ADA that provides a pri-
vate right of action, was clear and unambiguous and contained
no pre-suit notice requirement. Id. at 832. We noted that while
14354 SKAFF v. MERIDIEN NORTH AMERICA
§ 12188(a)(1) makes no reference to Title VII’s pre-suit
notice requirement, 42 U.S.C. § 2000a-3(c), § 12188(a)(1)
does make reference to 42 U.S.C. § 2000a-3(a), the section of
Title VII that defines the relief available to a private plaintiff.
Botosan, 216 F.3d at 832. We reasoned that, in light of the
ADA’s reference to § 2000a-3(a), if Congress had intended to
impose a pre-suit notice requirement on ADA plaintiffs, it
would have explicitly imposed such a requirement or would
have made explicit reference to Title VII’s pre-suit notice pro-
vision. Id. Thus, we held that “[a] plaintiff in a private Title
III action is not required to provide notice to any state or local
agency as a prerequisite to filing suit.” Id. Botosan is instruc-
tive, and we hold that the ADA does not require, either
explicitly or by reference to another statute, that a plaintiff
give notice of intention to sue before filing suit as a prerequi-
site to the recovery of attorneys’ fees and costs.13
13
District courts that have engrafted a pre-suit notice requirement onto
the ADA have been motivated by concerns that some plaintiffs’ lawyers
have abused the ADA to obtain “shake down” settlements. In Del Taco,
373 F. Supp. 2d at 1033, the district court wrote that “unscrupulous law
firm[s]” had “distorted” the ADA into a “cynical money-making scheme”
for themselves and the plaintiffs they represent:
The scheme is simple: An unscrupulous law firm sends a disabled
individual to as many businesses as possible in order to have him
or her aggressively seek out all violations of the ADA. Then,
rather than simply informing a business of the violations and
attempting to remedy the matter through conciliation and volun-
tary compliance, a lawsuit is filed, requesting damage awards that
could put many of the targeted establishments out of business.
Faced with costly litigation and a potentially drastic judgment
against them, most businesses quickly settle.
Id. at 1030 (internal quotation marks and citation omitted); see also Rodri-
guez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1282 (M.D. Fla. 2004)
(“The current ADA lawsuit binge is . . . essentially driven by economics
—that is, the economics of attorney’s fees.”).
However, a district court faced with litigation in which a plaintiff and
his attorneys are “requesting damage awards that could put . . . the tar-
geted establishments out of business,” Del Taco, 373 F. Supp. 2d at 1030,
SKAFF v. MERIDIEN NORTH AMERICA 14355
VI
[11] In summary, we hold that Skaff adequately pled that
he had standing to pursue his suit against Le Meridien. We
also hold that California law did not in this case require Skaff
to make a pre-suit attempt to settle in order to seek attorneys’
fees under section 1021.5 of the California Code of Civil Pro-
cedure. Finally, we hold that the ADA requires neither that
plaintiffs give defendants pre-suit notice that they intend to
sue, nor that plaintiffs give defendants an opportunity to cure
the alleged violation or violations before filing suit as a pre-
requisite to recovering attorneys’ fees. The district court erred
when it denied Skaff’s motion for attorneys’ fees and costs on
the above grounds. The district court should have considered
Skaff’s motion for attorneys’ fees and costs on the merits. The
district court had discretion whether to award fees to Skaff as
a prevailing party. We will review a future determination
awarding or rejecting any fees or costs for abuse of discretion.
We vacate the order of the district court denying Skaff’s
motion, and we remand the case so that the district court can
consider the merits of Skaff’s motion. Each party shall bear
its own costs.
VACATED AND REMANDED.
has at its disposal appropriate tools to protect its own and the public’s
interest, in that if allegations are unfounded, sanctions can be awarded or
pre-filing orders can be imposed. See Molski, op. at 37 n.7. Conversely,
if damage allegations are founded on true facts, then a party should not be
faulted for seeking damages and the attorneys’ fees the ADA expressly
permits the party to pursue.
Congress and the state legislatures have available means to study if
there is litigation abuse and to consider whether the law should be modi-
fied. Congress has provided us with supplemental jurisdiction over state
law claims that are part of the same case as ADA claims. See 28 U.S.C.
§ 1367(a). If Congress concludes that the damages available under state
law are creating abuse in the federal courts, it can limit the remedies avail-
able.
14356 SKAFF v. MERIDIEN NORTH AMERICA
DUFFY, District Judge, dissenting:
I respectfully dissent.
The question posed by this case before the court does not
involve interpretations of the canons of construction for
pleadings. The discussion of the required contents of plead-
ings in ADA cases in the majority opinion is mere dicta—but,
like most dicta, it can be interpreted to obtain a result far from
the intent of its author.1
The majority cites Bernhardt v. County of Los Angeles, 279
F.3d 862, 868 (9th Cir. 2002) for the proposition that we must
accept as true all of the complaint’s material allegations.
However, a review of the well-developed record indicates that
the parties conducted what appears to be a full mutual discov-
ery of the facts, and that the case was dismissed by the district
court in response to an application for attorneys’ fees after a
settlement had been reached. In Bernhardt, discovery had yet
to be completed; the merits had yet to be disposed of. Unlike
here, in Bernhardt the district court was forced to limit its
inquiry regarding the presence of standing to the four corners
of the complaint.
In this case, the scope of the district court’s probe was not
so limited. During the scheduled hearing on the motion for
attorney’s fees, the district court ordered that Skaff submit his
entire case file to the court for an in camera review. In its
Order Denying Plaintiff’s Motion for An Award of Attorney’s
Fees (the “Order”), the court stated that it came to its conclu-
sion “[a]fter considering all the papers filed in connection
1
Under the reasoning of the majority opinion, any person with a claimed
disability can bring an action against a building for ADA violations with-
out having even entered the building or having any knowledge of viola-
tions. The plaintiff merely could plead the violations by categories already
recognized in ADA cases in the hope that an “expert” could identify some
violations during discovery.
SKAFF v. MERIDIEN NORTH AMERICA 14357
with the motion, oral argument from counsel, and all matters
presented . . . .” The court specifically referred to post-
complaint activity: “Plaintiff did not identify any specific vio-
lations of the Americans with Disabilities Act [the “ADA”] or
California Civil Code until after (1) the case had progressed;
(2) his lawyer’s consultant had thoroughly inspected the hotel
and charged a fee of over $10,000.00 for doing so; and (3)
settlement negotiations were underway.” Order at ¶ 4.
Because this case progressed well beyond the pleading stage
prior to settlement and the district court relied on subse-
quently discovered facts in coming to its conclusion, we were
not required to assume the veracity of all statements contained
in the complaint. See, e.g., Good Luck Nursing Home, Inc. v.
Harris, 636 F.2d 572, 579 n.6 (D.C. Cir. 1980) (“Because the
[ ] suit was dismissed with prejudice pursuant to a settlement,
we do not assume that the facts alleged in the [ ] complaint
are true.”).
The majority misses the mark by solely looking to the com-
plaint to determine whether standing existed and “accept[ing]
as true all of the complaint’s material allegations.” Opinion at
14343. Regardless of my differing opinion from the majority,
whether the general language of paragraph 14 of the com-
plaint established an injury for the purposes of constitutional
standing is completely irrelevant to this case. Neither party
made a motion addressed to the pleadings or for summary
judgment, but the presence of a developed record suggests
that the dismissal was more akin to a motion for summary
judgment rather than a motion to dismiss. Looking at the
record as a whole, it can be said with certainty that the general
allegations made in the complaint could not be substantiated
by Skaff. “Although at the pleading stage general factual alle-
gations of injury resulting from the defendant’s conduct may
suffice to establish standing, at the summary judgment stage
they are not.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992); Hubbard v. 7-Eleven, 433 F. Supp. 2d at 1134,
1141 (S.D. Cal. 2006).
14358 SKAFF v. MERIDIEN NORTH AMERICA
Summary judgment is appropriate “if the pleadings, deposi-
tions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genu-
ine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). As the party invoking federal jurisdiction, it is the
plaintiff who bears the burden of proof and persuasion as to
the existence of standing. Lujan, 504 U.S. at 561; Hubbard,
433 F. Supp. 2d at 561. Skaff has fallen far short of meeting
his burden. The majority suggests that because in its opinion
the “district court’s findings of facts and conclusions of law
show no suggestion that the court was making a decision on
the merits by application of the summary judgment standard,”
Opinion at 14342, n.5, our hands are tied and that we, too,
must disregard the record in this case. Even if the district
court did so err, the majority’s opinion perpetuates this mis-
take. This court has an independent obligation to determine
whether we have jurisdiction, and whether the district court
had jurisdiction below. Latch v. United States, 842 F.2d 1031
(9th Cir. 1988) (citing Bender v. Williamsport Area School
District, 475 U.S. 534, 541 (1986)) (holding that courts have
an “obligation to ‘satisfy itself not only of its own jurisdic-
tion, but also of that of the lower courts in a cause under
review[.]’ ”).2
Just as the outcome of this case does not turn on the nice-
ties of pleading, nor does it involve the rights of a disabled
person suing for injury sustained because of violations of the
ADA. The case before us was settled by the parties. The
plaintiff received $15,000, and the defendant agreed to correct
some conditions pointed to by plaintiff’s expert as being vio-
2
In its Order Denying Plaintiff’s Motion for Attorney’s Fees, the district
court correctly referred to Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir.
1992) and Latch v. United States, 842 F.2d 1031, 1033-34 (9th Cir. 1988)
in holding that a court does not even have the authority to award attor-
neys’ fees to a plaintiff who lacked standing. The Smith and Latch courts
held this to be so even when, as here, the case has been effectively closed
by virtue of a settlement.
SKAFF v. MERIDIEN NORTH AMERICA 14359
lative of the ADA. The settlement agreement closed out all
issues, save whether the plaintiff’s counsel was entitled to
attorney’s fees from the defendant and, if so, the appropriate
amount. Neither the district court nor this court has been cal-
led to rule upon the fairness or the wisdom of the settlement
agreement.
This case does, however, involve the right of an attorney to
be paid $118,000 in “attorney’s fees” in connection with the
institution and conduct of the instant case, particularly in light
of the fairly nominal result. Even if we were to assume that
the sum was reasonable, we must still determine whether the
district court properly held that Skaff lacked standing at the
outset of the case, taking into account all information avail-
able to it at the time it rendered its decision. The parties knew
the facts involved and conveyed them to the district judge,
who made specific factual findings when he rendered his
decision. My review of the record indicates that the facts are
as follows:
Skaff, a disabled person who requires the use of a wheel-
chair and has filed over twenty lawsuits pursuant to the ADA
and related California laws in the federal court system in Cali-
fornia, alleges that he visited Le Meridien on May 9, 2004
and was delayed in taking a shower because he was given a
room without a roll-in shower or a wall-hung shower chair.
He concedes that after complaining to hotel staff he was
accommodated that evening and took a shower the following
morning. After Skaff checked out of the hotel, he again
voiced his dissatisfaction to hotel staff about his experience
with the shower via e-mail, and provided vague, unsubstan-
tiated allegations of various other barriers throughout the hotel.3
Skaff filed his complaint on January 13, 2005, and there
3
In this e-mail dated May 15, 2004, Appellant noted that there were
“[n]umerous other state and federal access code/regulatory violations,” but
that he would not “go into detail here.”
14360 SKAFF v. MERIDIEN NORTH AMERICA
was no shortage of detail regarding his claims pertaining to
his lack of access to the roll-in shower and chair. However,
with respect to the multitude of other barriers that Skaff alleg-
edly encountered throughout the course of his stay, his
account is limited to the skeletal, boilerplate paragraph 14:
“[d]uring the course of his stay at the Hotel, Plaintiff encoun-
tered numerous other barriers to disabled persons, including
‘path of travel,’ and guest room, bathroom, telephone, eleva-
tor, and signage barriers to access, all in violation of federal
and state law and regulation.” Skaff’s amorphous allegations
did not give details as to how these supposed violations
affected him or any specific hotel feature to which he was
denied access, or how their removal was “readily achievable”
as required by the ADA. 42 U.S.C. §§ 12181(9), 12182(b)(2).
After Skaff filed the complaint, Le Meridien attempted to
procure as much information regarding the allegations as pos-
sible through discovery. Skaff, strategically it seems, refused
to identify or provide specifics as to the barriers at the hotel,
which prompted Le Meridien to serve Skaff with interrogato-
ries. Skaff’s responses again were vague and did not identify
any specific violations of the ADA or similar California stat-
utes.4 Le Meridien attempted to commence settlement discus-
sions in April of 2005, but Skaff refused to do so until Le
Meridien consented to an inspection of the hotel by his con-
sultant. Le Meridien conceded, and the consultant identified
69 items he believed to be in violation of ADA guidelines or
California state regulations, most of which were in rooms that
had not been occupied by Skaff or even alluded to in his com-
plaint or interrogatory responses. Skaff never amended the
complaint to reflect the alleged violations identified by his
4
With respect to these additional barriers, Skaff’s interrogatory
responses state: “Plaintiff identifies the following: lobby bar, room ther-
mostat, room doors, room closet (clothes racks, raised floor, iron), guest
bathroom (grab bar dimensions and distance, towel racks), public men’s
room, lobby pay phones, elevator (control buttons), and building directo-
ry.”
SKAFF v. MERIDIEN NORTH AMERICA 14361
consultant or to provide any greater details regarding his ini-
tial allegations. The parties reached their settlement in Octo-
ber of 2005.5
When Appellant first went to the offices of his attorney to
discuss his case, the starting point of the litigation clearly
involved solely questions of the roll-in shower and fixed
shower seat. We know from the majority opinion that, in the
circumstances of this case, such a delay in providing these
items does not give rise to an “injury” sufficient to give plain-
tiff standing to start a lawsuit. As an officer of the court, the
plaintiff’s attorney should have told plaintiff that he lacked
the requisite injury and standing to maintain this action.6 To
the contrary, counsel drafted a complaint with no want for
detail regarding the specifics of the shower incident in addi-
tion to inserting a boilerplate recitation of categories in which
other violations might have existed. The plaintiff conveniently
refused to answer interrogatories as to the particulars of the
violations in such categories until after counsel was able to
obtain an expert’s opinion as to possible violations and his
counsel had built up a considerable amount of attorney’s fees,
but even these did not form the basis for any assertion of
injury by Skaff. Appellant, in his mere recitation of categories
of potential injuries, has not shown us that there were any bar-
5
Despite the efforts taken by Le Meridien to procure information from
Skaff, the majority faults the hotel for its failure to move to compel more
complete answers or to “ask[ ] Skaff formally what barriers he had
encountered, where they were in the hotel, when he encountered them,
what he did about it, whether any person was present when he encountered
the barriers, and, for each barrier, what damages he claimed to have suf-
fered.” Opinion at 14348. The majority’s insistence that Le Meridien have
used “available discovery and procedural tools that could have compelled
specificity” ignores the facts that: (1) it was not Meridien’s burden to
establish jurisdiction; (2) the attorneys’ fees required to implement such
“procedural tools” would potentially have had to be paid by Le Meridien
alone; and (3) regardless of the merits, it was in Le Meridien’s interest to
settle the claim as early as possible to avoid additional litigation costs.
6
See Molski v. Evergreen Dynasty Corp., No. 05-56452, 2007 WL
2458547 at * 13 (9th Cir. Aug. 31, 2007).
14362 SKAFF v. MERIDIEN NORTH AMERICA
riers to access that he either personally encountered or specifi-
cally knew about such that he would have been deterred from
visiting Le Meridien in the future.
A plaintiff’s standing to sue is an indispensable Constitu-
tional requirement; “the threshold question in every federal
case, determining the power of the court to entertain the suit.”
Warth v. Seldin, 422 U.S. 490, 502 (1975). To establish stand-
ing, Appellant must demonstrate that: (i) he suffered an injury
in fact; (ii) the injury in question is traceable to the Appellee’s
challenged conduct; and (iii) the injury can be redressed by a
favorable outcome. Lujan, 504 U.S. at 561. Standing is deter-
mined at the time of the lawsuit’s commencement, and we
must consider the facts as they existed at that time the com-
plaint was filed, with the effect of subsequent events generally
analyzed under mootness principles. Id. at 569 n.4.7 The ele-
ments of standing are not mere pleading requirements, but
rather must be supported by sufficient evidence. Piney Run
Preservation Ass’n v. County Com’rs of Carroll County, MD,
268 F.3d 255, 252 (4th Cir. 2001).
To establish that the plaintiff suffered an injury in fact, it
must be “concrete and particularized,” which requires that
“the injury must affect the plaintiff in a personal and individ-
ual way.” Lujan, 504 U.S. at 561 n.1. The majority agrees that
a slight delay in being able to procure a room with a roll-in
shower and hanging chair, remedied the same night and
months before Skaff filed the complaint, is not a concrete
injury. Upon review of the record, with regards to the addi-
tional assertions in the complaint, it is evident that: (1) the
complaint contained mere categories of potential ADA viola-
7
The majority states that “[a]t the time Skaff filed his suit, Le Meridien
had not remedied any of the violations Skaff alleged that he encountered
during his visit and identified in paragraph 14.” Based on the sparse lan-
guage of paragraph 14 and the plaintiff’s refusal to give specifics about
these categories until after his consultant had filed the report, it remains
a mystery to me how this conclusion was reached.
SKAFF v. MERIDIEN NORTH AMERICA 14363
tions; (2) Skaff was only able to provide details to these
alleged barriers to access after his expert inspected the prem-
ises and identified certain possible ADA violations, many of
which were in rooms or areas of the hotel to which Skaff
never ventured; (3) there are no statements in the appellate or
district court record, by affidavit or otherwise, of Skaff or his
attorneys that Skaff personally encountered or knew about
any of the barriers that were identified by his expert during
inspection of the premises.8
Taking these factors into account, it is evident to me that
Skaff lacked standing at the time the complaint was filed. To
make more clear my point, I will borrow from symbolic syllo-
gisms used in mathematical logic. Let us assume that “A + B
→ C” is used to represent the Rule of Law in ADA cases, and
A is an annoyed disabled person; B is injury; and C is the
right to redress the violations which gave rise to the injury.
The majority would seek to change this syllogism by
including in C the right to redress the violations which gave
rise to the injury and other incidental violations discovered
before entry of judgment. This case, however, is not the
appropriate one in which to announce such a sweeping
change, for here, B is no injury, which is recognized by the
majority as it states that “Skaff suffered no cognizable injury
concerning the shower because Le Meridien promptly cor-
8
The affidavit of Skaff’s attorney merely incorporates the boilerplate
language of paragraph 14: “During the course of his stay at the Hotel,
Plaintiff encountered numerous barriers to disabled access, including ‘path
of travel,’ guestroom, bathroom, telephone, elevator, and signage barriers
to access, all in violation of federal and state law and regulation.” Declara-
tion of Sidney J. Cohen in Support of Plaintiff’s Motion at ¶ 7. In Skaff’s
declaration, he claims that he had a telephone conversation with one of Le
Meridien’s employees whereby he “identified a multitude of barriers to
access to the Hotel” prior to filing the complaint. Declaration of Richard
Skaff at ¶ 6. He did not put forth that these were the same violations iden-
tified by the consultant or provide any other documentation to substantiate
this claim.
14364 SKAFF v. MERIDIEN NORTH AMERICA
rected its errors. The ancient maxims of de minimis non curat
lex and lex non curat de minimis teach that the law cares not
about trifles.”
Thus, we do not have the syllogism “A + B → C,” because
B here is zero. In other words, by seeking to extend the Rule
of Law in ADA cases by the use of this decision, the majority
basically rules that any annoyed disabled person has the right
to bring a suit to redress any violation discovered before the
judgment is entered, even if the violation was totally unknown
to and unencountered by the plaintiff. This is a result that flies
in the face of the long standing precedent and should be
barred by the constitutional requirements that the courts rule
only in situations involving “cases or controversies.” There-
fore, as I would find that Skaff lacked standing at the time the
complaint was filed, I would affirm the district court and deny
attorney’s fees. I dissent.