UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DEBORAH LAUFER

Plaintiff,

v. 1:20-cv-631-RP

JAGDISHBHAI R. PATEL, et al.

Defendant,

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

Plaintiff hereby opposes Defendant’s Motion To Dismiss.

I. Introduction

Plaintiff is a Florida resident and disabled person within the meaning of the Americans

With Disabilities Act, 42 U.S.C. Sections 12181, et seq. (“ADA”), and relies on a wheelchair or

cane to ambulate and is vision impaired. Defendant books rooms for its hotel through an online

online reservations system. (Hereinafter “websites”, “online reservations systems” or “ORS”.) 

The purpose of this ORS is so that Defendant can reach out and market to persons all over the

country, including Florida, in their own homes, to solicit their patronage, provide them with

information so that they can make a meaningful choice in planning trips, and, in some instances,

book a room at the hotel. As such, the Defendant’s ORS is required to comply with the

requirements of 28 C.F.R. Section 36.302(e)(1)(hereinafter “Regulation”), by identifying and

allowing for booking of accessible rooms and providing accurate and sufficient information as to

whether all the features at the hotel are accessible. Prior to the filing of this lawsuit, Plaintiff

reviewed the ORS for Defendant’s hotel and found that it did not comply with the Regulation.

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Plaintiff therefore filed the instant action for injunctive relief pursuant to the ADA. 

Defendant filed a motion to dismiss arguing that it is not liable for its ORS operated

through such third parties as Booking.com, Agoda, Priceline and somervilleinnandsuites.com

and, alternatively, that they are indispensable parties. Defendant also argues that Plaintiff cannot

have a cause of action unless the hotel itself has discriminatory violations. For the reasons set

forth below, Defendant’s arguments are without merit.

II. The Applicable Statute And Regulation

Plaintiff’s claims are based on the following:

42 U.S.C. Section 12182(a) provides:

(a) General rule

No individual shall be discriminated against on the basis of disability in the full

and equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.

42 U.S.C. Section 12182(b)(2)(A) expands on the definitions of the above subsection to include:

a failure to make reasonable modifications in policies, practices, or procedures,

when such modifications are necessary to afford such goods, services, facilities,

privileges, advantages, or accommodations to individuals with disabilities, unless

the entity can demonstrate that making such modifications would fundamentally

alter the nature of such goods, services, facilities, privileges, advantages, or

accommodations

42 U.S.C. Section 12182(b)(2)(A)(ii).

This latter subsection is the subject of regulations promulgated by the Department Of

Justice (“DOJ”). Specifically, the DOJ promulgated 28 C.F.R. Section 36.302(e)(1) (hereinafter

“Regulation”), which provides:

(1)Reservations made by places of lodging. A public accommodation that owns,

leases (or leases to), or operates a place of lodging shall, with respect to

reservations made by any means, including by telephone, in-person, or through a

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third party -

(i) Modify its policies, practices, or procedures to ensure that individuals with

disabilities can make reservations for accessible guest rooms during the same

hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered

through its reservations service in enough detail to reasonably permit individuals

with disabilities to assess independently whether a given hotel or guest room

meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with

disabilities until all other guest rooms of that type have been rented and the

accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest

rooms and ensure that the guest rooms requested are blocked and removed from

all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its

reservations service is held for the reserving customer, regardless of whether a

specific room is held in response to reservations made by others.

This regulation became effective March 15, 2012. 28 C.F.R. Section 36.302(e)(3). 

III. Defendant Is Directly And Exclusively Liable For Websites Operated By Third

Parties

Defendant argues that it cannot be liable for its discriminatory online reservations

systems operated through third parties. Moreover, Defendant claims – citing no evidence

whatsoever – that it has “no control over the Websites”. Defendant’s Brief, p. 4. Defendant does

not deny that it Defendant provided the third parties with the information posted on their

websites, that the Defendant accepts reservations and payments made through the third parties,

or the Defendant interacts with the third parties on a constant basis. To describe the Defendant’s

representations to this Court as misleading is being charitable. 

Defendant labors under a fundamental misreading of the plain language of the regulation

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at issue. Contrary to Defendant’s assertions, the Regulation imposes liability on Defendant for its

discriminatory online system, even if operated through third parties. 28 C.F.R. Section

36.302(e)(1) (the “Regulation”), provides:

(1)Reservations made by places of lodging. A public accommodation that owns, leases

(or leases to), or operates a place of lodging shall, with respect to reservations made by

any means, including by telephone, in-person, or through a third party -

(Emphasis added.) Thus, the Regulation is unequivocally clear and imposes liability on hotels

which operate discriminatory reservations systems through third parties. The Department of

Justice (“DOJ”), which promulgated this Regulation, issued guidelines on the subject at issue. In

this regard, the DOJ stated: 

Hotels and organizations commenting on their behalf also requested that the

language be changed to eliminate any liability for reservations made through third

parties, arguing that they are unable to control the actions of unrelated parties. The rule,

both as proposed and as adopted, requires covered public accommodations to ensure that

reservations made on their behalf by third parties are made in a manner that results in

parity between those who need accessible rooms and those who do not.

Hotels and other places of lodging that use third party reservations services must

make reasonable efforts to make accessible rooms available through at least some of

these services and must provide these third party services with information concerning

the accessible features of the hotel and the accessible rooms. To the extent a hotel or

other place of lodging makes available such rooms and information to a third party

reservation provider, but the third party fails to provide the information or rooms to

people with disabilities in accordance with this section, the hotel or other place of

lodging will not be responsible.

Guidelines for 28 C.F.R. Part 36, Nondiscrimination on the Basis of Disability in Public

Accommodations and Commercial Facilities, Exhibit C attached hereto, p. 133. Thus, it is

plainly clear that a hotel is directly liable for any failure of its online reservations system to

comply with the Regulation, even if operated through third parties.

The DOJ’s guideline also addressed the Regulation’s applicability to third parties (such

as booking.com). On this point, the DOJ states:

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In the NPRM, the Department sought guidance concerning whether this requirement

should be applied to third party reservations services. Comments made by or on behalf of

hotels, resort managers, and other members of the lodging and resort industry pointed out

that, in most cases, these third parties do not have direct access to this information and

must obtain it from the hotel or other place of lodging. Because third party reservations

services must rely on the place of lodging to provide the requisite information and to

ensure that it is accurate and timely, the Department has declined to extend this

requirement directly to third party reservations services.

Id. p. 134. By this language, the DOJ made clear that the Regulation does not impose liability on

third party booking systems because they do not have direct access to the information required,

but must instead rely on the hotel to provide the required information. This information is in the

exclusive possession of the hotel and any failure to comply with the Regulation is the hotel’s

fault. 

The Statute itself is devoid of any language that would give Plaintiff a right of action

against the third parties. 42 U.S.C. Section 12182(a) only imposes liability on any person “who

owns, leases (or leases to), or operates a place of public accommodation.” The third party

providers do not fall within any of these categories. By contrast, Defendant is directly liable for

discrimination under 42 U.S.C. Section 12182(a) because it is the owner and operator of the

hotel. 

Moreover, if Defendant claims that these third parties share the fault, then Defendant is

free to add them as third party defendants for any breaches on their part. See, Fed. R. Civ. P. 14. 

It requires no more that reading the regulation at issue, which is quoted in the complaint,

to recognize the baseless, if not frivolous, nature of the Defendant’s argument. 

In Parks v. Richard, 2:20-cv-227, DE 28, p. 4 (M.D. Fla. 7/21/20)(Exhibit A attached

hereto), the court rejected a similar argument, stating:

Shipwreck argues it cannot be liable for ADA violations on a third-party site. Not so. As

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the regulations demand, Shipwreck must have compliant reservation systems, even when

provided through third parties. 28 C.F.R. § 36.302(e)(1). Like the regulation, DOJ

guidance explains hotels must ensure reservations made through third parties are “in a

manner that results in parity between those who need accessible rooms and those who do

not.” [] 28 C.F.R. Pt. 36, app. A § 36.302(e). (Citation omitted.)

In Kennedy v. New Yorker Hotel Miami, LLC, 18-62897, DE 34 (S.D. Fla. 6/6/19),

another court rejected similar arguments and held that the third parties are not indispensable. 

At pp. 4, et seq. of its Brief, Defendant argues that Plaintiff “judicially admitted” that the

ORS operated by Booking.com complies with the ADA. In support of this proposition,

Defendant attaches Plaintiff’s Memorandum filed in Deborah Laufer v. Laxmi & Sons, LLC, 

1:19-cv-01501-BKS-ML. Defendant’s argument in this regard is unworthy of credence. The

Booking.com ORS at issue in the Laxmi case involved a completely different and unrelated

hotel. Indeed, Booking.com and the other third party ORS providers are frequently compliant,

but only when the subject hotel provides it with the information required so that those systems

can provide an option for booking accessible rooms and additionally provide the required

information about accessibility. The fact that Booking.com and the the third party providers are

non-compliant with respect to Defendant’s hotel is entirely Defendant’s own fault. 

IV. The Pleadings Are Sufficient

Innumerable courts have recognized that virtually identical pleadings are sufficient in

cases involving hotel online reservations discrimination. See, e.g., Kennedy v. New Yorker Hotel

Miami, LLC, 18-62897, DE 34 (S.D. Fla. 6/6/19); Kennedy v. Patel Brothers, Inc., 19-60613, DE

23 (S.D. Fla. 6/6/19); Kennedy v. Guru Krupa, Inc., 0:18-cv-63088-WPD, DE 18 (S.D. Fla.

2/26/19)(denying motion to dismiss); and Kennedy v. Murnane, et al., 0:18-cv-63086-WPD, DE

10 (S.D. Fla. 3/5/19)(denying motion to dismiss). Numerous courts have also considered such

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allegations as sufficient when they granted default judgment. See Kennedy v. Yaish & Tish Ltd.,

LLC, 19-cv-61992-RAR, DE 14 (S.D. Fla. 9/27/19); Kennedy v. Londamerican Real Estate

Ltd., 19-cv-61228-SMITH/VALLE, DE 18 (S.D. Fla. 8/21/2019); Kennedy v. Guruhari

Hospitality, LLC, 0:19-cv-61139-WPD, DE 18 (S.D. Fla. 7/11/2019); Kennedy v. Moreno, 19-

60550-CIV-ALTMAN, DE 20, (S.D. Fla. 6/26/2019); Kennedy v. Pacifica Tampa Ltd

Partnership, 5:17-cv-442-JSM-PRL, DE 7 (M.D. Fla. 1/25/18). Kennedy v. Fernandez, 19-

60876, DE 18 (S.D. Fla. 6/11/2019); Kennedy v. Astoria Hotel Suites, LLC, 19-cv-60160, DE 17

(S.D. Fla. 3/22/19); Kennedy v. Dockside View, LLC, 2:18-cv-14444-KAM (S.D. Fla. 1/19/19);

Kennedy v. Cape Siesta Motel, LLC, 18-81811, 0:18-cv-61811-MGC, DE 20 (S.D. Fla.

1/18/2019); Kennedy v. Shivnit, Inc., 0:18-cv-63094-UU, DE 12 (S.D. Fla. 1/30/19); Kennedy v.

Terrace Park Suites, LLC, 0:19-cv-60012-DPG (S.D. Fla. 3/21/19); Kennedy v. Shree Ram

Jalaram, Inc., 19-60708, DE 13 (S.D. Fla. 4/18/2019); and Kennedy v. Rushi Hospitality LLC,

18-cv-62259-WPD, DE 26 (S.D. Fla. 2/6/19). 

Defendant argues that “... Plaintiff’s Complaint fails to assert a single allegation as to

how Defendant’s Property fails to comply with the ADA,...” Defendant’s Brief, p. 2, para. 3.

Defendant reiterates this argument at p. 4. Defendant’s argument completely misses the mark.

This is not a case about discriminatory violations present at Defendant’s physical hotel. Rather,

it is about Defendant’s discriminatory online reservations system. Numerous courts have

recognized that the plaintiff’s injury occurs when they review the hotel’s discriminatory online

reservations system, in violation of the Regulation. See Parks v. Richard, 2020 U.S. Dist. Lexis

86790 (M.D. Fla. 2020); Kennedy v. Gold Sun Hospitality, LLC, 8:18-cv-842-T-33CPT, DE 23,

at pp. 30-31, (M.D. Fla. June 18, 2018); Kennedy v. Swagath Hospitality, LLC, 0:19-cv-60583-

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DPG, DE 27 (S.D. Fla. 1/2/2020); Kennedy v. WGA, 2:19-cv-0095-RWS, DE 16, p. 9 (N.D. Ga.

11/5/2019); Poschmann v. Fountain TN, LLC, 2019 U.S. Dist. Lexis 159417, **4-6 (M.D. Fla.

2019); Poschmann v. Coral Reef of Key Biscayne Developers, Inc., 2018 U.S. Dist. Lexis

87457. *8 (S.D. Fla. 2018); Kennedy v. Nila Investments, LLC, 2:19-cv-90-LGW-BWC, DE 34

(S.D. Ga. 7/1/20); Kennedy v. New Yorker Hotel, Miami, LLC, 0:18-cv-62897-WPD, DE 34

(6/6/19); Kennedy v. Murnane, et al., 0:18-cv-63086-WPD, DE 10 (S.D. Fla. 3/5/19); Kennedy

v. Galleon Resort Condominium Assn, Inc., et al., 19-cv-62421-CMA, DE 52 (S.D. Fla. 1/28/20); 

Kennedy v. Sai Ram Hotels, LLC, 2019 U.S. Dist. LEXIS 80111, *4-6 (M.D. Fla. 5/13/19),

citing Honeywell v. Harihar Inc., 2018 U.S. Dist. LEXIS 203740,(M.D. Fla. Dec. 3, 2018);

Kennedy v. Floridian Hotel, Inc., 2018 U.S. Dist. LEXIS 207984, at *9 (S.D. Fla. 2018); 

Poschmann v. Liberty Inn Motel, LLC, 2:18-cv-14348, ECF No. 17 at 4-5 (S.D. Fla. Jan. 23,

2019); Brooke v. Hotel Inv. Grp., Inc., 2017 U.S. Dist Lexis 150717, * 6 (D. Ariz. 2017); 

Brooke v. Regency Inn-Downey, LLC, 2017 U.S. Dist. Lexis 150716 (D. Ariz. 2017). This injury

occurs in the comfort of the plaintiff’s own home. Gold Sun, at pp. 30-31 (plaintiff’s injury

occurred in comfort of her own home when she visited defendant’s discriminatory hotel

website). 

Numerous additional cases support the proposition that viewing a discriminatory

commercial website constitutes injury-in-fact in the context of vision impairment based claims.

See, e.g. Carroll v. Fedfinancial Fed. Credit Union, 324 F. Supp. 3d 658, 664 (E.D. Va. 2018);

Access Now, Inc. v. Otter Prods., LLC, 280 F. Supp. 3d 287, 294 (D. Mass. 2017); Jones v.

Piedmont Plus Fed. Credit Union, No. 1:17-CV-5214- RWS, 2018 WL 4694362, at *1 (N.D. Ga.

Sept. 26, 2018); Jones v. Family First Credit Union, No. 1:17-CV-4592-SCJ, 2018 WL

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5045231, at *4 (N.D. Ga. Aug. 6, 2018). For example, in Camacho v. Vanderbilt Univ., 2019

U.S. Dist. Lexis 209202, *30 (S.D.N.Y. 2019), one court rejected the notion that the plaintiff’s

possible visit to the subject property was at issue, holding: “Plaintiff has claimed that he was

denied access to the Website, not Defendant's physical location itself.”

The Supreme Court and numerous courts in this Circuit have recognized the right to sue

over informational violations created as an injury by statute. See Havens Realty Corp. v.

Coleman, 455 U.S. 363 (1982)(black testers had standing to sue over discriminatory information

even though they had no intention of buying apartment); Landrum v. Blackbird Enters., LLC,

214 F.Supp.3d 566, 570 (S.D. Tex. 2016)(citing Havens Realty in stating that the “failure to

provide information in accordance with a statute could constitute concrete injury.”). In Dyson v.

Sky Chefs, Inc., 2017 U.S. Dist. Lexis 92637, * 10-11 (N. D. Tx. 2017), one court note that: "The

Supreme Court has held that a 'plaintiff suffers an "injury in fact" when the plaintiff fails to

obtain information which must be publicly disclosed pursuant to a statute.'" citing LaFollette v

RoBal, Inc., 2017 U.S. Dist. LEXIS 47144, (N.D. Ga. 2017) (quoting FEC v. Akins, 524 U.S. 11,

21 (1998)). In Treece v. Perrier Condo. Owners Ass'n, 2020 U.S. Dist. LEXIS 26511, *11 (E.D.

La. 2020), a court followed Havens in holding that it was not necessary for a plaintiff to apply to

rent an apartment to suffer injury regarding his statutory right to truthful information. See also,

Moore v. Radian Group, 233 F.Supp.2d 819 (E.D. Tx. 2002)(infringement of right to truthful

information is cognizable injury).

V. Conclusion

For the foregoing reasons, Defendant’s motion must be denied.

Thomas B. Bacon

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Thomas B. Bacon, P.A.

644 N. McDonald Street

Mt. Dora, FL 32757

tbb@thomasbaconlaw.com

954-478-7811

/s/Philip Michael Cullen, III

PHILIP MICHAEL CULLEN, III

Attorney-at-Law – Chartered

Bar No: 167853

621 South Federal Highway, Suite Four

Fort Lauderdale, Florida 33301

Telephone: (954) 462-0600

Facsimile: (954) 462-1717

e-mail: CULLENIII@aol.com

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via the 

Court's electronic filing system upon all parties of record on April 29, 2020.

/s/Philip Michael Cullen, III

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