IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50231

JON R. DEUTSCH, 

Plaintiff–Appellant,

versus

ANNIS ENTERPRISES, INCORPORATED,

Defendant–Appellee.

Appeal from the United States District Court 

for the Western District of Texas

Before REAVLEY, SMITH, and OWEN, Circuit Judges.

PER CURIAM:

This is a companion case to Deutsch v. Travis County Shoe Hospital, Inc., 

No. 16-51431, 2018 U.S. App. LEXIS 2647 (5th Cir. Feb. 2, 2018) (per curiam)

(unpublished). Here, as there, Jon Deutsch appeals the dismissal, for want of 

Article III standing, of his claims under the Americans with Disabilities Act

(“ADA”). And here, as there, Deutsch appeals (1) the contempt order of the 

magistrate judge (“MJ”) that fined his counsel $2,500 and (2) the district 

United States Court of Appeals

Fifth Circuit

FILED

February 8, 2018

Lyle W. Cayce

Clerk

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court’s alleged attorney’s fee award to Annis Enterprises, Incorporated

(“Annis”). For essentially the same reasons as in the companion case, we 

affirm. 

I.

Deutsch is paraplegic and relies on a wheelchair for mobility. He claims 

to have patronized Color at Dawn, a woman’s hair salon located on Annis’s 

property. Deutsch avers that he “experienced difficulty and discomfort” during 

his visit because Annis’s parking lot does not have the number of parking 

spaces required by the ADA and lacks access ramps, and because the threshold 

to Color at Dawn exceeds one-half inch. Deutsch sued Annis, seeking injunctive and declaratory relief, statutory damages under Texas law, and attorney’s 

fees from Annis. 

This suit is but one of 385 ADA lawsuits that Deutsch filed in 306 days—

including all days when the courts are closed. Deutsch’s complaint did not 

indicate whether he would ever visit Color at Dawn again. Instead, the complaint contained statements such as that “Mr. Deutsch will continue to experience unlawful discrimination as a result of Defendant’s refusal to comply with 

the ADA.” 

Annis moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) 

and (6). Because Deutsch’s complaint was rather bare as to standing, the MJ 

convened an evidentiary hearing on that issue. And because six other 

defendants—including Travis County Shoe Hospital—filed similar motions to 

dismiss for lack of standing, the MJ ordered a consolidated hearing for all 

seven cases. The order that set the hearing, common to all cases, conspicuously 

stated, “IT IS FURTHER ORDERED that Plaintiff Jon R. Deutsch be present 

at the hearing, and be prepared to provide sworn testimony on the standing 

issues raised in the motions.” 

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Yet Deutsch did not appear. His attorney, Omar Rosales, explained that 

he had not instructed Deutsch to be present because they had “settled those 

cases where the standing was raised—three of the cases yesterday. So pursuant to the Court orders, my client is out of town.” Rosales also contended that 

the electronic filing notifications, or PACER entries, mandated Deutsch’s presence only for those three cases. The MJ declared a recess and told Rosales that 

he would set a hearing for Rosales to show cause why he was not in contempt. 

The defendants who had not settled reiterated that each of them had filed a

motion to dismiss for lack of standing. 

The MJ issued an order to show cause why Rosales should not be held in 

contempt for failing to follow the order to have Deutsch present. The order 

noted that “[b]ecause of Mr. Deutsch’s absence, the Court was forced to recess 

the hearing, to the great inconvenience of counsel for the defendants, and their 

clients.” The MJ also held a “summary contempt hearing,” insofar as the MJ

reasoned that Rosales had failed to comply with the order “in the presence of 

the Court.” At that hearing, Rosales was given the opportunity to respond. He 

claimed that he “never missed a court date in five years,” and “[i]n haste, [he] 

didn’t read the order . . . . [He] just looked at the Pacer entry.” The MJ found 

Rosales in contempt and gave him the chance to allocate as to punishment.

Rosales reiterated that this was his first offense. After considering “all the 

circumstances,” including the number of cases involved, the MJ issued a fine 

of $2,500. 

The evidentiary hearing was then reconvened, with Deutsch present. 

Each of the four defendants questioned Deutsch. As relevant to Annis’s case, 

Deutsch explained that he visited Color at Dawn to get hair coloring for his 

wife but made no attempt to get out of his vehicle because it was obvious that 

he would not be able to enter. Deutsch admitted he has not been back to Color

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at Dawn since that incident. Furthermore, another attorney’s questioning 

revealed that Deutsch works with Rosales on a list of properties to visit—and 

an examination of that list led the MJ to conclude that Rosales had prepared

most of it. Finally, questioning revealed that Deutsch could not identify a 

single business that he had sued and then returned to after settlement.

The MJ recommended dismissing for lack of standing under Rule 

12(b)(1). He reasoned that “Deutsch has failed to demonstrate that he has 

suffered an ‘actual or imminent injury’ that is not merely ‘conjectural or hypothetical,’ or that he has ‘concrete plans’ to patronize the businesses in the 

future. He therefore lacks standing . . . .” The district court adopted the MJ’s

report and recommendations and overruled Rosales’s objection to the order of 

contempt. Deutsch appealed. 

II.

Regarding standing, “[w]e review a district court’s dismissal for lack of 

subject matter jurisdiction de novo.”1 If the district court resolved any disputed 

facts, then the appellate court reviews those determinations for clear error. 

Williamson, 645 F.2d at 413. For the same reasons articulated in Travis 

County Shoe Hospital, Deutsch has not established Article III standing 

because he has not shown that any alleged ADA violation by Annis threatens 

him with future injury.

 

1 Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009) (quoting Stiles v. GTE 

Sw., Inc., 128 F.3d 904, 906 (5th Cir. 1997)). Deutsch wrongly asserts that the MJ was barred 

from holding an evidentiary hearing and was limited to the complaint. But because Annis 

raised a Rule 12(b)(1) motion, the district court is permitted to dismiss based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or 

(3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed 

facts.” Freeman, 556 F.3d at 334 (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.

May 1981)). Accordingly, the district court “may hear conflicting written and oral evidence 

and decide for itself the factual issues which determine jurisdiction.” Williamson, 645 F.2d 

at 413.

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Federal courts have subject matter jurisdiction only over a “case” or “controversy.” See U.S. CONST. ART. III, § 2, cl. 1. To establish a “case or controversy,” a plaintiff must show that he has standing to sue. Lujan v. Defs. of 

Wildlife, 504 U.S. 555, 560–61 (1992). Accordingly, Deutsch must establish 

that (1) he has suffered an “injury in fact—an invasion of a legally protected 

interest which is (a) concrete and particularized and (b) actual or imminent, 

not conjectural or hypothetical,” (2) there is a “causal connection between the 

injury and the conduct complained of,” and (3) it is “likely . . . that the injury 

will be redressed by a favorable decision.” Id. (internal quotations and citations omitted). “The party invoking federal jurisdiction bears the burden of 

establishing these elements.” Id. at 561. 

Furthermore, if the plaintiff seeks equitable relief, he must also show 

that “there is a real and immediate threat of repeated injury.” City of Los 

Angeles v. Lyons, 461 U.S. 95, 102 (1983). Merely having suffered an injury in 

the past is not enough; the plaintiff must show a “real or immediate threat that 

the plaintiff will be wronged again.” Id. at 111. Because Deutsch sues under 

the ADA, he is limited to seeking “injunctive relief, and a restraining or other 

similar order.” Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th 

Cir. 1997) (citing 42 U.S.C. § 12188). Accordingly, he must meet the standing 

requirements for equitable relief. 

We applied the future-injury requirement to the ADA in Frame v. City of 

Arlington, 657 F.3d 215, 235–36 (5th Cir. 2011) (en banc).2 There, we held that 

plaintiffs need not actually use an ADA-noncompliant sidewalk to have 

standing—instead, they must show only that “an inaccessible sidewalk 

actually affects [their] activities in some concrete way.” Id. If the plaintiffs

 

2 As the Travis Cty. Shoe Hosp. panel noted, Frame was not decided under Title III of 

the ADA. For the purposes of this opinion, we assume the analysis is the same.

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could show that the ADA violation actually would affect them in a concrete 

way, they would have shown an “actual or imminent injury.” Id. at 235. Thus,

the plaintiffs had established standing because they had “alleged in detail how 

specific inaccessible sidewalks negatively affect their day-to-day lives by forcing them to take longer and more dangerous routes to their destinations.” Id. 

at 236.

Deutsch insists that, under Frame, he has satisfied the future-injury 

standing requirement to seek equitable relief. Far from it. Much unlike the 

Frame plaintiffs, Deutsch has not shown how the supposed ADA violations at 

Color at Dawn will “negatively affect [his] day-to-day li[fe].” Id. All the record 

shows is that he visited there once. As the district court found, there is no 

evidence that Deutsch has any intent to return—nor is there any reason to 

believe that Deutsch is affected by Annis’s alleged ADA violation in any way, 

let alone “some concrete way.” See id. Instead, Deutsch has filed nearly 400 

lawsuits in just over 300 days and could not remember a single establishment 

that he sued and then returned to. Thus, he has not shown any likelihood of 

future injury necessary to obtain equitable relief.

III.

Deutsch contends that the district court wrongly overruled his objection 

to the MJ’s contempt order. Unlike in Travis County Shoe Hospital, the district 

court expressly considered Deutsch’s objections to the contempt order and overruled them. Thus, we have jurisdiction to hear Deutsch’s appeal.3

 

3 “The prevailing view is that a magistrate lacks the power to adjudicate contempt 

proceedings; pursuant to 28 U.S.C. § 636(e), a magistrate may only certify to the district court 

(or deny certification thereof) facts possibly constituting contempt.” Castaneda v. Falcon, 

166 F.3d 799, 801 (5th Cir. 1999). Here, the MJ expressly ordered contempt based on 

§ 636(e). Therefore, “we are without jurisdiction unless and until the district court acts and 

a proper notice of appeal is filed from whatever action the district court might take.” Id. As

stated, the district court explicitly considered and rejected Deutsch’s objection to the 

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We review the imposition of sanctions for abuse of discretion. See Crowe 

v. Smith, 151 F.3d 217, 226 (5th Cir. 1998).4 “A court abuses its discretion 

when its ruling is based on an erroneous view of the law or on a clearly erroneous assessment of the evidence.”5 

Deutsch gives three reasons why the contempt order was erroneous: 

(1) Rosales lacked bad faith; (2) Rosales was not given due process; and (3) the 

fine was not the least restrictive possible. Each contention is without merit. 

First, assuming that bad faith is required for an obstruction-of-justice 

sanction under § 636(e)(2),6 the district court did not abuse its discretion. 

Rosales’s excuse for not complying with the MJ’s order was that he looked only 

at the Pacer entries, rather than the order itself (which plainly required 

Deutsch to be present for all seven cases). It is wholly reasonable not to credit 

 

contempt order. Deutsch now raises that same objection on appeal. Although the more 

proper procedure would have been an appeal by Deutsch to the district court in lieu of filing 

objections, we assume that the district court’s action is sufficient for our review. Cf. Trufant 

v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir. 1984) (per curiam). And we assume that the 

district court’s review and overruling of Deutsch’s detailed objection is sufficient to satisfy 

any Article III concerns with the contempt authority of MJs. See Castaneda, 166 F.3d at 801 

& n.4 (collecting cases). 

4 See also In re Contempt Order, 441 F.3d 1266, 1267–68 (10th Cir. 2006) (noting that 

where an MJ issues summary criminal contempt sanctions under § 636 and in accordance 

with Federal Rule of Criminal Procedure 42, the analysis is the same as for a sanction issued 

by a district court under its inherent Article III powers). 

5 In re First City Bancorp. of Tex. Inc., 282 F.3d 864, 867 (5th Cir. 2002) (per curiam) 

(quoting Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995)).

6 We base this assumption on two reasons. First, other “obstruction of justice” contexts 

require something akin to bad faith. See, e.g., United States v. Iverson, 874 F.3d 855, 858 

(5th Cir. 2017) (noting that willful obstruction is required for an obstruction-of-justice sentence enhancement); United States v. Fisch, 851 F.3d 402, 407 (5th Cir.), cert. denied, 

138 S. Ct. 378 (2017) (requiring acting corruptly with the specific intent to hinder judicial 

proceedings for a criminal statute regarding obstruction of justice). Second, as stated above, 

we assume that MJ-issued contempts under § 636(e)(2) should be treated the same as district 

court contempts under their inherent Article III powers. Cf. In re Contempt Order, 441 F.3d 

at 1267–68. And criminal contempt normally requires bad faith. See, e.g., Crowe, 151 F.3d 

at 236. 

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that excuse. We have found “entirely appropriate the court’s expectation of a 

heightened standard of conduct by a litigant who is also an attorney.”7 Accordingly, the bad-faith finding may be “predicated on a single point: [Rosales] 

knew better.”8 

The order was plain and manifestly unambiguous: Deutsch was to be 

present for the hearing on seven cases, each of which involved standing issues. 

Rosales must have known that standing was still at issue, given that the 

remaining defendants—including Annis—had filed motions to dismiss for lack 

of standing. Any lawyer would have been aware of the motions filed in those 

cases and would know to look at the actual order. See Carroll, 110 F.3d at 294. 

Accordingly, it is at least reasonable to conclude that Rosales acted in bad faith; 

thus, the district court did not abuse its discretion in finding that Rosales 

obstructed justice. 

Second, Rosales received all the process to which he was due. The 

requirements of due process “balance the competing concerns of necessity and 

potential arbitrariness by allowing a relatively unencumbered contempt power 

when its exercise is most essential, and requiring progressively greater procedural protections when other considerations come into play.” See Int’l Union, 

United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 832 (1994). Thus, 

summary adjudication is permitted for “petty, direct contempts in the presence 

of the court.” Id. Similarly, other direct contempts may be resolved only by 

“notice and a hearing.” Id. at 832–33.

Rosales’s failure to bring Deutsch to court took place in the presence of 

 

7 Carroll v. Jaques Adm. Law Firm, P.C., 110 F.3d 290, 294 (5th Cir. 1997) (quoting 

Coane v. Ferrara Pan Candy Co., 898 F.2d 1030, 1033 (5th Cir. 1990)).

8 Id.; see also United States v. Onu, 730 F.2d 253, 255–58 (5th Cir. 1984) (upholding 

contempt where the lawyer had no good excuse for missing a pretrial conference because he 

was attending a legislative session and had not been fully paid by the client).

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the judge. Accordingly, Rosales was at most entitled to notice and a hearing. 

See Carroll, 110 F.3d at 293.9 That he received. When he told the MJ that he 

had not brought Deutsch to the first hearing—or even instructed Deutsch to 

be present—the MJ warned Rosales that he would set a show cause hearing. 

The MJ then issued a written order to show cause, describing the conduct 

under review. There was a hearing at which Rosales was given the chance to 

explain himself and allocute about the sanction itself. And Rosales filed a 

written objection with the district court, which denied his objection. Accordingly, Rosales received due process. 

Finally, Rosales is correct that courts are generally required to impose 

the “least onerous sanction which will address the offensive conduct.” Gonzalez 

v. Trinity Marine Grp., Inc., 117 F.3d 894, 899 (5th Cir. 1997). But in Carroll,

110 F.3d at 294, we upheld a $7,000 sanction where the attorney was “challenging and insulting plaintiff’s counsel, refusing to answer questions, [and] cursing” during his deposition. We reasoned that the attorney’s actions “necessitated additional court hearings and written interrogatories and thus burdened 

the court as well as his opponent”; moreover, as an attorney, the defendant was 

“presumed to have understood the impact of his contumacious approach.” Id. 

The same is true here. Although this was Rosales’s first offense, he is 

presumed to have understood that his actions would delay the proceedings at 

a burden to his many opponents and the court. The sanction, as less than that 

in Carroll, reflects that Rosales’s conduct was less severe than that in Carroll. 

Accordingly, district court did not abuse its discretion in the amount of the 

sanction.

 

9 See also Am. Airlines, Inc. v. Allied Pilots Ass’n, 968 F.2d 523, 527, 530 (5th Cir. 

1992) (imposing such requirements for a Rule 11 violation of signing misleading pleadings); 

Onu, 730 F.2d at 257 (permitting a notice and a hearing to suffice for a lawyer’s failure to 

appear).

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IV.

Deutsch finally insists that the district court wrongfully awarded attorney’s fees. The district court did no such thing. It awarded Annis—and Travis 

County Shoe Hospital—only their costs of court. 

AFFIRMED.

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