Laufer v. Mann Hospitality

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).




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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




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                                      No. 20-50858


   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




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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.”).




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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.”).




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                                   No. 20-50858


   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.




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