Laufer v. Mann Hospitality ( 2021 )

Case: 20-50858 Document: 00515840410 Page: 1 Date Filed: 04/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 28, 2021
No. 20-50858 Lyle W. Cayce
Clerk
Deborah Laufer,
Plaintiff—Appellant,
versus
Mann Hospitality, L.L.C.,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CV-620
Before Jones, Costa, and Duncan, Circuit Judges.
Stuart Kyle Duncan, Circuit Judge:
Deborah Laufer sued Mann Hospitality, LLC (“Mann”), owner of
the Sunset Inn in Caldwell, Texas, under the Americans with Disabilities
Act. See 42 U.S.C. § 12182. She alleges the inn’s information, posted on
third-party booking websites, failed to identify rooms accessible to disabled
persons like her. Laufer, however, professes no definite plans to travel to the
Sunset Inn or anywhere else in Texas. A Florida resident, she does not claim
she has ever traveled in Texas. Nor does she allege she tried, or intends to
try, to book a room at the Sunset Inn. At most, she claims that, after the
coronavirus pandemic abates, she “intend[s] to travel all throughout
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No. 20-50858
[Texas], . . . including Caldwell.” And while grateful for her show of interest
in the region, we note that Laufer has filed hundreds of identical lawsuits in
federal district courts around the country. 1 She considers herself a “tester,”
monitoring places of public accommodation and suing to ensure their
compliance with the ADA.
The district court dismissed Laufer’s suit, finding no standing for
want of an injury in fact. 2 We agree and affirm. However, the district court
also awarded attorneys’ fees to Mann under 28 U.S.C. § 1919. This was error
because § 1919 authorizes “just costs” but not attorneys’ fees, so we vacate
the court’s order to that extent and remand.
I
We review de novo the district court’s dismissal for lack of subject
matter jurisdiction. Campos v. United States, 888 F.3d 724, 729 (5th Cir.
2018); see Fed. R. Civ. P. 12(b)(1). “The burden of proof for a Rule
12(b)(1) motion to dismiss is on the party asserting jurisdiction,” here,
Laufer. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). At the
pleading stage, her “burden is to allege a plausible set of facts establishing
jurisdiction.” Physician Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir.
2012). Where the district court rules on jurisdiction without resolving factual
1
See, e.g., Laufer v. Dove Hess Holdings, LLC, No. 5:20-CV-379, 2020 WL 7974268,
at *17–18 (N.D.N.Y. Nov. 18, 2020) (noting Laufer “has filed over 500 lawsuits in at least
15 states within the last year,” which are “nearly identical”); Laufer v. Fort Meade Hosp.,
LLC, No. 8:20-CV-1974, 2020 WL 6585955, at *4 n.1 (D. Md. Nov. 10, 2020) (collecting
some cases).
2
District courts have divided on whether Laufer has shown injury in fact in her
many lawsuits. Compare Laufer v. Ganesha Hosp., LLC, No. 3:20-CV-943 (D. Conn. Mar.
25, 2021) (finding standing), and Laufer v. Lily Pond LLC C Series, No. 20-CV-617, 2020
WL 7768011 (W.D. Wis. Dec. 30, 2020) (same), with Laufer v. Patel, No. 1:20-CV-631,
2021 WL 796163 (W.D. Tex. Mar. 2, 2021) (dismissing on standing grounds), and Laufer
v. Naranda Hotels, LLC, No. 20-2136, 2020 WL 7384726 (D. Md. Dec. 16, 2020) (same).
2
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disputes, as here, we “consider the allegations in the plaintiff’s complaint as
true” and review “whether the district court’s application of the law is
correct.” St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556
F.3d 307, 315 (5th Cir. 2009) (citations omitted).
II
To have standing to sue in federal court, a plaintiff must have
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)), as revised (May
24, 2016). This case turns on the first requirement, injury in fact. “To
establish injury in fact, a plaintiff must show that he or she suffered an
invasion of a legally protected interest that is concrete and particularized and
actual or imminent, not conjectural or hypothetical.” Id. at 1548 (quoting
Lujan, 504 U.S. at 560) (internal quotation marks omitted).
As the Supreme Court recounted in Spokeo, statutes may define what
injuries are legally cognizable—including intangible or previously
unrecognized harms—but cannot dispense with the injury requirement
altogether. Id. at 1549. Congress may undoubtedly “elevat[e] to the status of
legally cognizable injuries concrete, de facto injuries that were previously
inadequate in law.” Ibid. (alteration in original) (quoting Lujan, 504 U.S. at
578). Nevertheless, “Article III standing requires a concrete injury even in
the context of a statutory violation.” Ibid. “Put differently, the deprivation
of a right created by statute must be accompanied by ‘some concrete interest
that is affected by the deprivation.’” Lee v. Verizon Commc’ns, Inc., 837 F.3d
523, 529 (5th Cir. 2016) (quoting Spokeo, 136 S. Ct. at 1549).
Laufer fails to show the necessary concrete interest to support
standing. She alleges she cannot tell from the Sunset Inn’s online reservation
3
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systems (ORS), through which Mann markets the motel on third-party
platforms, whether it has rooms that could accommodate her disabilities. But
regardless whether that violates the ADA—a question we do not reach—
Laufer fails to show how the alleged violation affects her in a concrete way.
While she does claim to have visited the ORS, she does not claim she tried to
book a room or even intended to do so. According to her declaration, she
visited the sites “for the purpose of reviewing and assessing the accessible
features at the hotel and ascertain[ing] whether the websites contain the
information required by [ADA regulations].” As for using that information
or the motel’s services, though, she attests only to a general intent to visit the
area someday: “I have plans to travel to Texas as soon as the Covid crisis is
over and it is safe to travel. I intend to travel all throughout the State,
including Aust[i]n and the surrounding towns, including Caldwell, and I need
to stay in hotels when I go.”
In other words, she visited the ORS to see if the motel complied with
the law, and nothing more. Such allegations do not show enough of a concrete
interest in Mann’s accommodations to confer standing. To be sure, Laufer
has a right to “the full and equal enjoyment of the . . . services, facilities . . .
or accommodations of any place of public accommodation” irrespective of
disability. 42 U.S.C. § 12182. But she has failed adequately to allege that her
“concrete interest” in the ADA-compliance of Sunset Inn’s ORS was “at
risk from the purported statutory deprivation.” Lee, 837 F.3d at 530.
Laufer’s framing of her harm as an “informational injury” does not
cure her lack of standing. Even assuming arguendo that a failure to advertise
accessibility information could support an ADA claim, 3 Laufer still “would
3
See 28 C.F.R. § 36.302(e)(1)(ii) (describing duty of places of public
accommodation to “[i]dentify and describe accessible features in the hotels and guest
rooms offered through its reservations service in enough detail to reasonably permit
4
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need to allege at least that the information had ‘some relevance’ to her.”
Brintley v. Aeroquip Credit Union, 936 F.3d 489, 493 (6th Cir. 2019) (citation
omitted); see also Griffin v. Dep’t of Lab. Fed. Credit Union, 912 F.3d 649, 654
(4th Cir. 2019) (“Inability to obtain information is sufficiently concrete to
constitute injury in fact only when the information has some relevance to the
litigant.”). Without sufficiently concrete plans to book a stay at the motel,
Laufer has failed to do so.
Likewise, Laufer’s assumed status as an “ADA tester” does not
absolve her of the need to show an injury in fact for standing purposes. 4
Laufer’s case differs from the Supreme Court’s seminal “tester” case,
Havens Realty, where a tester plaintiff was “the object of a misrepresentation
made unlawful under § 804(d)” of the Fair Housing Act. Havens Realty Corp.
v. Coleman, 455 U.S. 363, 373 (1982). 5 There, the “information” had “some
relevance” to the tester, cf. Griffin, 912 F.3d at 654, because the statute
forbade misrepresenting it to “any person,” quite apart from whether the
tester needed it for some other purpose. Laufer cannot say the same here.
In sum, the district court correctly dismissed Laufer’s complaint for
lack of subject-matter jurisdiction.
individuals with disabilities to assess independently whether a given hotel or guest room
meets his or her accessibility needs”).
4
See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1334 (11th Cir. 2013)
(explaining a “mere tester of ADA compliance” “also must show a real and immediate
threat of future injury”); Griffin, 912 F.3d at 656 (noting “tester status . . . cannot create
standing” absent some concrete injury); Brintley, 936 F.3d at 494–95 (explaining tester
status did not “give[] Brintley a pass to skip the ordinary constitutional requirements to
suing in federal court”).
5
See 42 U.S.C. § 3604(d) (“[I]t shall be unlawful . . . [t]o represent to any person
because of race, color, religion, sex, handicap, familial status, or national origin that any
dwelling is not available for inspection, sale, or rental when such dwelling is in fact so
available.”).
5
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III
Laufer also appeals the district court’s award of attorneys’ fees to
Mann under 28 U.S.C. § 1919, which we review for abuse of discretion. Iscavo
Avocados USA, L.L.C. v. Pryor, 953 F.3d 316, 319 (5th Cir. 2020). She is
correct that this statute authorizes costs, which the district court also
awarded, but not attorneys’ fees. 6 See Wilkinson v. D.M. Weatherly Co., 655
F.2d 47, 49 (5th Cir. Unit A Aug. 1981) (“Although [the district court] may
order the payment of ‘just costs,’ 28 U.S.C. [§] 1919, such ‘costs’ do not
include attorney’s fees.”). Unlike other fee-shifting statutes with explicit
provisions governing fees, § 1919 references only “just costs” without
mentioning attorneys’ fees. 7 The district court’s fee award under this statute
was therefore an abuse of discretion.
To be sure, federal courts may award attorneys’ fees “in the exercise
of their equitable powers . . . when the interests of justice so require.” Hall v.
Cole, 412 U.S. 1, 5 (1973). The Supreme Court has recognized such awards
as a “punitive” measure for litigants acting “in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Ibid. (citation omitted); see also
Williams v. Lockheed Martin Corp., 990 F.3d 852, 867 (5th Cir. 2021) (“When
acting pursuant to its inherent powers, a court can shift attorney’s fees only
in a few circumstances,” such as when “a litigant has engaged in bad-faith
conduct or willful disobedience of a court’s orders” (quoting Chambers v.
NASCO, Inc., 501 U.S. 32, 47 (1991))). But here the district court made no
6
Section 1919 provides in relevant part, “Whenever any action or suit is dismissed
in any district court . . . for want of jurisdiction, such court may order the payment of just
costs.”
7
Cf., e.g., 28 U.S.C. § 1447(c) (“An order remanding the case may require
payment of just costs and any actual expenses, including attorney fees, incurred as a result
of the removal.”); 42 U.S.C. § 12205 (“[T]he court . . . in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee, including litigation expenses, and costs.”).
6
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such determination, finding only that fees were “appropriate.” We therefore
vacate the award of attorneys’ fees and remand for further proceedings
consistent with this opinion. We do not preclude the district court from
imposing attorneys’ fees on remand under another applicable rule or statute,
or under the court’s inherent power.
AFFIRMED in part, VACATED in part, and REMANDED.
7