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UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DEBORAH LAUFER, 

Plaintiff

v. 

JAGDISHBHAI R. PATEL

& GUNVANTIBEN PATEL

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CAUSE NO. 1:20-cv-00631-RP

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT 

PURSUANT TO FRCP 12(b)(1), 12(b)6), AND 12(b)(7) 

COME NOW Defendants Jagdishbhai R. and Gunvantiben Patel (collectively 

“Defendant”) and files this Motion to Dismiss Plaintiff Deborah Laufer’s (“Plaintiff”; together 

with Defendant, the “Parties”) Complaint (Dkt. 1; the “Complaint”) pursuant to FRCP 12(b)(1), 

12(b)(6), and 12(b)(7) (the “Motion”), and showing in support as follows: 

SUMMARY OF ARGUMENT

1. Plaintiff’s Complaint seeks to address alleged discrimination she experienced when 

seeking to reserve a hypothetical room at Defendant’s Somerville Motel located at 18125 State 

Highway 36 South, Somerville, Texas (the “Property”). Namely, Plaintiff complains that five

websites, all of which are owned and operated by third-parties—namely, (1) 

www.somervilleinnandsuites.com; (2) www.booking.com; (3) www.priceline.com; (4) 

www.agoda.com; and (5) reservation.booking.expert (collectively, the “Websites”)—fail to 

comply with the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (the “ADA”). 

2. However, as described in more detail below, Plaintiff’s Complaint fails to allege a 

single allegation as to how Defendant’s actions have caused the alleged discrimination. Thus, 

Plaintiff’s Complaint fails to meet the case-or-controversy requirement needed for Plaintiff to 

establish that she has standing to assert a claim against Defendant. Accordingly, the Court should

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dismiss Plaintiff’s Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(1), as it does not 

have subject matter jurisdiction. 

3. Relatedly, since Plaintiff’s Complaint fails to assert a single allegation as to how 

Defendant’s Property fails to comply with the ADA, the Court should dismiss Plaintiff’s 

Complaint with prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6), as it has fails to 

state a claim upon which relief may be granted. 

4. Finally, since Plaintiff seeks to secure a declaratory judgment that would have to 

be imposed upon the Websites in order to redress the alleged wrong, Plaintiff’s Complaint should 

be dismissed, pursuant to Federal Rule of Civil Procedure 12(b)(7), as she failed to join the 

required parties under Federal Rule of Civil Procedure 19. 

ARGUMENTS AND AUTHORITIES

A. Since Plaintiff fails to establish that Defendant’s actions caused her alleged injuries, the 

Complaint should be dismissed as it fails to meet the case-or-controversy requirement 

needed for Plaintiff to have constitutional standing.

5. Dismissal of an action is appropriate whenever the court lacks subject matter 

jurisdiction. FED. R. CIV. P. 12(b)(1). A district court’s jurisdiction is limited to actual cases and 

controversies. See Lujan v. Defenders of Wildlife, 504, U.S. 555, 559 (1992). A court must dismiss 

a cause for lack of subject matter jurisdiction “when the court lacks the statutory or constitutional 

power to adjudicate the case.” See Home Builders Ass’n of Mississippi, Inc. v. City of Madison, 

143 F.3d 1006, 1010 (5th Cir. 1998). 

6. “[T]he irreducible constitutional minimum of standing contains three 

elements.” Lujan, 504 U.S. at 560. These elements are “(1) an ‘injury in fact’ that is (a) concrete 

and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) a causal 

connection between the injury and the conduct complained of; and (3) the likelihood that a 

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favorable decision will redress the injury.” Croft v. Governor of Texas, 562 F.3d 735, 745 (5th 

Cir.2009) (citing Lujan,504 U.S. at 560–61). Particularized means “that the injury must affect the 

plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560. Second, a plaintiff must show 

a causal connection between the injury and defendant’s actions. Id. A plaintiff demonstrates 

causation by showing that the injury is “fairly...trace[able] to the challenged action of the 

defendant, and not...th[e] result of the independent action of some third party not before the court.” 

Id. (quoting Simon v. E. Ky. Welfare Rights, Org., 426 U.S. 26, 41-42 (1976)). “Third, it must be 

likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” 

Id. 

7. “The party invoking federal jurisdiction bears the burden of establishing these 

elements.” Id. at 561. Since they are not mere pleading requirements but rather an indispensable 

part of the plaintiff's case, each element must be supported in the same way as any other matter on 

which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required 

at the successive stages of the litigation. Id. At the pleading stage, general factual allegations of 

injury resulting from the defendant's conduct may suffice, for on a motion to dismiss court’s

“presum[e] that general allegations embrace those specific facts that are necessary to support 

the claim.” Lujan, 504 U.S. at 561; see also Public Citizen, Inc. v. Bomer, 274 F.3d 212, 218 (5th 

Cir.2001).

8. In deciding a motion to dismiss pursuant to Rule 12(b)(1), the Court may consider: 

(1) the Complaint alone; (2) the Complain supplemented by undisputed facts evidenced in the 

record; or (3) the Complaint supplemented by undisputed facts, plus the Court’s resolution of 

disputed facts. See Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). “When a motion 

to dismiss is based on lack of jurisdiction on the face of the complaint, the plaintiff is left with 

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safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a 

claim is raised—the court will consider the allegations in the plaintiff’s complaint as true.” 

Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981).

9. Presently, Plaintiff’s Complaint only alleges that Defendant has violated the ADA 

by and through third-party booking websites. See Complaint at ¶¶ 9-14. Meaning, Plaintiff’s 

Complaint is void of any allegations asserting that Defendant’s Property is physically noncompliant with the ADA or that Defendant’s acted in any way that violated the ADA. Stated 

differently, the Complaint fails to show a causal connection between Plaintiff’s alleged injuries

(i.e., the inability to use the Websites) and Defendant’s actions. Plaintiff’s Complaint does not 

challenge Defendant’s actions (i.e., Defendant’s operation and maintenance of the Property) but 

rather the independent actions of third-parties, all of which are not before this Court, that facilitate 

online reservation systems for Defendant’s Property. Relatedly, since Plaintiff’s Complaint 

acknowledges that the Websites are operated by third-parties (Complaint ¶¶ 11-14), it is neither 

likely nor speculative that Plaintiff’s alleged injury could be addressed by a favorable decision

against Defendant—it is impossible as Defendant has no control over the Websites. 

10. Even more, Plaintiff has judicially admitted1that the online reservations operated 

by Booking.com comply with the ADA. Namely, in Plaintiff’s Memorandum of Law in Support 

of Standing (the “New York Memo”), which was filed on May 28, 2020 in Case 1:19-cv-01501-

BKS-ML, captioned as Deborah Laufer v. Laxmi & Sons, LLC, and pending in the Northern 

District of New York, a true and correct copy of which is attached hereto as Exhibit A,

2 Plaintiff 

1

“A ‘judicial admission’ is a formal concession in the pleadings or stipulations by a party or counsel that is binding 

on the party making them...[and] it has the effect of withdrawing a fact from contention.” Martinez v. Bally’s 

Louisiana, Inc., 244 F.3d 474, 476. 

2 Pursuant to Federal Rule of Evidence 201, Defendant request that the Court take judicial notice of New York 

Memo. “A fact that has been judicially noticed is not subject to dispute by the opposing party—indeed that is the 

very purpose of judicial notice. Taylor v. Charter Med. Corp., 162 F.3d 827, 831 (5th Cir. 1998).

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conceded that her controversy with Booking.com was moot as the online reservations systems 

operated through Booking.com identifies and allows for booking of accessible rooms. Thus, even

assuming, in arguendo, that Defendant controlled the online reservation systems Plaintiff 

complains about, Plaintiff has judicially admitted that no controversy exists as to the Booking.com 

operated websites. 

11. For the foregoing reasons, the Court should dismiss Plaintiff’s Complaint as no 

case-or-controversy exists between Plaintiff and Defendant, which means Plaintiff lacks standing 

and this Court lacks subject matter jurisdiction. Accordingly, Plaintiff’s Complaint should be 

dismissed in its entirety. 

B. Since Plaintiff fails to identify any ways in which Defendant has violated the ADA, the 

Complaint should be dismissed as it fails to state a claim upon which relief can be 

granted as to Defendant. 

12. Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a complaint for 

“failure to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). “In analyzing 

a motion to dismiss for failure to state a claim, the Court accepts all well-pleaded facts as true, 

viewing them in the light most favorable to the plaintiff.” In re Katrina Canal Breaches Litig., 495 

F.3d 191, 205 (5th Cir. 2007). On a Rule 12(b)(6) review, the Court may examine the complaint, 

documents attached to the complaint, and documents attached to the motion to dismiss to which 

the complaint refers and which are central to the plaintiff's claims, as well as matters of public 

record. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010).

13. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts 

to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct 

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alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a 

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 

unlawfully.” Id. A complaint need not include detailed facts to survive a Rule 12(b)(6) motion to 

dismiss. See Twombly, 550 U.S. at 555–56. However, a plaintiff must do more than recite the 

formulaic elements of a cause of action. Id.at 556–57. Additionally, the Court is not bound to 

accept as true a legal conclusion couched as a factual allegation in the complaint. See Iqbal, 556 

U.S. at 678. Thus, although all reasonable inferences will be resolved in favor of the plaintiff, the 

plaintiff must plead “specific facts, not mere conclusory allegations.” Tuchman v. DSC Commc'ns 

Corp., 14 F.3d 1061, 1067 (5th Cir.1994).

14. As described above, Defendant neither owns nor operates the Websites that serve 

as the sole source of Plaintiff’s ADA allegations. However, Plaintiff’s Complaint utterly fails to 

raise a single allegation as to how Defendant’s Property physically violates the ADA, thereby 

discriminating against Plaintiff. This pleading deficiency is no surprise as Plaintiff has never been 

to Defendant’s Property. In fact, Plaintiff’s Complaint does not mention “structural”, “physical”, 

or “architectural” violations once. Thus, even assuming all factual allegations in Plaintiff’s favor, 

the Complaint fails to plead any facts to state a claim to relief that is plausible on its face as to 

Defendant’s actions. 

15. Accordingly, since the Complaint fails to allege any facts as to how Defendant’s 

Property physically violates the ADA, Plaintiff has failed to state a claim against Defendant upon 

which relief can be granted. As such, Plaintiff’s Complaint should be dismissed with prejudice. 

C. Since the Websites Plaintiff claims violate the ADA are owned and operated by a thirdparties, Plaintiff’s Complaint should be dismissed as it fails to join a required parties. 

16. Federal Rule of Civil Procedure 12(b)(7) allows dismissal for “failure to join a party 

under Rule 19.” FED. R. CIV. P. 12(b)(7). Rule 19 provides for the joinder of all parties whose 

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presence in a lawsuit is required for the fair and complete resolution of the dispute at issue. FED.

R. CIV. P. 19(a); see also Pulitzer–Polster v. Pulitzer, 784 F.2d 1305, 1308 (5th Cir.1986) (“The 

federal rules seek to bring all persons that may have an interest in the subject of an action together 

in one forum so that the lawsuit can be fairly and completely disposed of. In accord with this goal, 

Rule 19 seeks to bring into a lawsuit all those persons who ought to be there by requiring joinder” 

(citations omitted)). 

17. Rule 19 further provides for the dismissal of litigation that should not proceed in 

the absence of parties that cannot be joined. FED. R. CIV. P. 19(b). Rule 12(b)(7) analysis entails 

two inquiries under Rule 19. “The court must first determine under Rule 19(a) whether a person 

should be joined to the lawsuit.” HS Resources, Inc. v. Wingate, 327 F.3d 432, 438 (5th Cir. 2003). 

“If joinder is warranted, then the person will be brough into the lawsuit.” Id. “But if such joinder 

would destroy the court’s jurisdiction, then the court must determine under Rule 19(b) whether to 

press forward without the [party] or to dismiss the litigation.” Id; see also 5A Charles Alan Wright 

& Arthur R. Miller, Federal Practice & Procedure § 1359, at 425 (2d ed.1990). Factors to consider 

under Rule 19(b) include, “(1) prejudice to an absent party or others in the lawsuit from a judgment; 

(2) whether the shaping of relief can lessen prejudice to absent parties; (3) whether adequate relief 

can be given without participation of the party; and (4) whether the plaintiff has another effective 

forum if the suit is dismissed.” Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 84 (5th Cir.1997) 

(citing FED. R. CIV. P. 19(b)); see also 5A Wright & Miller, Federal Practice & Procedure § 1359, 

at 426 (“The burden is on the moving party to show the nature of the unprotected interests of the 

absent parties.”).

18. As asserted in Plaintiff’s Complaint, and confirmed in this Motion, Plaintiff seeks 

redress for the alleged discrimination experienced by and through the online reservation systems 

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owned and operated by third-party Websites, namely priceline.com, LLC (owner of 

www.priceline.com) and Booking Holdings, Inc. (owner of www.booking.com, 

www.somervilleinnandsuites.com (by and through its subsidiary BookingSuite), and

www.agoda.com (by and through its subsidiary Agoda Company Pte. Ltd.).

3 The presence of these 

parties is absolutely required for the fair and complete resolution of the dispute at issue as these 

parties have an interest in the subject of the action (i.e., whether or not they will be subject to a 

declaratory judgment order imposing actions upon them). 

19. Accordingly, Plaintiff’s Complaint should be dismissed pursuant to Federal Rule

of Civil Procedure 12(b)(7) as it fails to join required parties pursuant to Federal Rule of Civil 

Procedure 19. 

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants Jagdishbhai R. and Gunvantiben

Patel pray that the Court grant this Motion to Dismiss Plaintiff’s Complaint Pursuant to FRCP 

12(b)(1), 12(b)(6) and 12(b)(7) and enter a judgment: 1) dismissing Plaintiff Deborah Laufer’s

Complaint in its entirety with prejudice; 2) awarding Defendants their attorney’s fees and costs; 

and 3) all other such relief and rulings to which it may be equitably entitled.

Dated: July 31, 2020 Respectfully submitted,

By: /s/ Padon D. Holt

Padon D. Holt

Texas Bar No. 24093619

HOLT & HUTCHINS, PLLC

Bryan, Texas 77803

Tel: (979) 213-4761

Fax: (713) 282-5461

Email: padon@holthutchins.com

ATTORNEY FOR DEFENDANTS

Jagdishbhai R. and Gunvantiben Patel

3 Reservation.booking.com is not a functioning website so Defendant is uncertain of the owner/interested party 

related to that website. 

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CERTIFICATE OF SERVICE

I hereby certify that on July 31, 2020, I electronically filed the foregoing document with 

the Clerk of Court using the CM/ECF system, which will then send a notification of such filing 

(NEF) to the following: 

Philip Michael Cullen, III

621 South Federal Highway, Suite Four

Fort Lauderdale, Florida 33301

Tel: (954) 462-0600

Fax: (954) 462-1717

Email: cullenIII@aol.com

ATTORNEYS FOR PLAINTIFF /s/ Padon D. Holt

Deborah Laufer Padon D. Holt

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