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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRANDON CRIDER, § 

§ 

Plaintiff, § 

§ 

v. § No. 3:22-CV-2415 

§ 

EUGENIA FOUST, § 

 § 

Defendant. § 

DEFENDANT’S REPLY CONCERNING MOTION TO DISMISS

PLAINTIFF’S AMENDED COMPLAINT AND BRIEF IN SUPPORT 

TO THE HONORABLE UNITED STATES DISTRICT COURT: 

Now comes Defendant Eugenia Foust, and files this Reply concerning her 

Motion to Dismiss under FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) and 

12(b)(6). 

This suit is but the latest in a long and recent series of dubious petitions filed by 

this attorney, many of them in forma pauperis, alleging technical violations of the 

AMERICANS WITH DISABILITIES ACT. Far from presenting any true claims of 

discrimination, these cookie-cutter, drive-by lawsuits have followed a familiar pattern 

of demanding unconscionable sums of money from small businesses.1

 

1

 Attached as Exhibit A are true and correct copies of the virtually identical $10,000 to $15,500 presuit demands in these cookie-cutter, drive-by lawsuits. (Of course, the costs of these entrepreneurial 

lawsuits filed in forma pauperis are borne by the taxpayers, even though the attorneys filing these suits 

clearly have the ability to cover court costs.) 

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As this Court is well aware and the Fifth Circuit has affirmed, this kind of 

reprehensible entrepreneurial litigation fails for lack of standing. The undersigned 

counsel have advocated for years on behalf of individuals with disabilities. See Neff v. 

VIA Metro. Transit Auth., 179 F.R.D. 185, 194-95 (W.D. Tex. 1998). However, 

entrepreneurial AMERICANS WITH DISABILITIES ACT litigation like this case, filed as 

a money-making venture, lacks standing and offends the very premise of the ADA.

To characterize this case as “alleging a plausible set of facts establishing 

jurisdiction” contravenes established Fifth Circuit precedent, is contrary to an opinion2

from the Northern District of Texas involving these same plaintiff attorneys, and does 

violence to the AMERICANS WITH DISABILITIES ACT and the rights of individuals with 

disabilities and undermines public support for the ADA.

Far from presenting any true claims of injury or discrimination, the cookiecutter, re-hashed lawsuits filed by this Plaintiff and these attorneys have followed a 

familiar pattern of demanding unconscionable sums of money from small businesses.3

These virtually identical vexatious lawsuits allege technical violations of the 

AMERICANS WITH DISABILITIES ACT (ADA), citing to certain recommendations set 

2 See Segovia v. Admiral Realty, Inc., 3:21-cv-2478-L, at *7 (N.D.Tex. August 4, 2022) (Plaintiff “has 

failed to demonstrate that he has ‘suffered an invasion of a legally protected interest that is concrete 

and particularized and actual or imminent, not conjectural or hypothetical;’ therefore, he lacks 

standing. Laufer, 996 F.3d at 272.”).

3

 Interestingly (and perhaps tellingly), these cookie-cutter cases only require a brief copy-and-paste 

adaptation, an hour at the most. Yet, counsel seeks the same exorbitant amount ($10,000 to $15,500)

in virtually each case. No conscientious lawyer will bill twice, let alone 60 times, for the same work, 

warmed over.

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forth in the Americans with Disabilities Act Accessibility Guidelines. Each of these lawsuits 

focuses on allegations of non-compliance with signage, parking lots, and paths of 

travel, such as marked accessible parking, parking signage, and curb cuts, whether or 

not such allegations are factual or real. Each of the allegations is of the sort one could 

attempt to raise by examining Google Maps or other similar databases whichh include 

street level imagery. 

Many of these suits are filed in forma pauperis, forcing taxpayers to fund the 

enterprise, even though this is clearly entrepreneurial litigation.

To date, this Plaintiff has filed at least seven (and Plaintiff’s counsel has filed at 

least 60) of these virtually identical cases in the Northern and Western Districts of 

Texas. Each of these 60 suits have the same boilerplate recitations such as “residing 

within 30 miles,” “purchase general goods and services,” and “intends to revisit the 

subject property again in the next six months.” But none of these suits makes any 

attempt to specifically state how any of alleged non-compliance prevented access by 

the plaintiff, or why the plaintiff requires that specific accommodation.

The issue is subject matter jurisdiction and “[t]he burden of proof for a Rule 

12(b)(1) motion to dismiss is on the party asserting jurisdiction,” and “[a]t the pleading 

stage, the ‘burden is to allege a plausible set of facts establishing jurisdiction.’” Laufer 

v. Mann Hosp., L.L.C., 996 F.3d 269, 271-72 (5th Cir. 2021), quoting Ramming v. United 

States, 281 F.3d 158, 161 (5th Cir. 2001) and Physician Hosps. of Am. v. Sebelius, 691 

F.3d 649, 652 (5th Cir. 2012). 

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Examination of “plausible set of facts establishing jurisdiction” must be done in 

the context of all 60 virtually identical suits brought by these attorneys in this 

entrepreneurial scheme. The boilerplate repetition in these belies any “plausible set of 

facts establishing jurisdiction.”

If a plaintiff’s litigation history may undercut the attempt to prove a 

particularized interest, Hunter v. Branch Banking and Tr. Co., 2013 WL 4052411, at *5 

(N.D. Tex. Aug. 12, 2013), citing Norkunas v. Wynn Resorts Holdings, LLC, 2007 WL 

2949569, at * 4 (D.Nev. Oct.10, 2007) (stating that “a plaintiff’s litigation history can 

undercut the sincerity of his or her expressed intent to return”); Brother v. Tiger Partner, 

LLC, 331 F.Supp.2d 1368, 1374-75 (M.D.Fla.2004) (similar), then identical statements 

appearing in more than 60 cookie-cutter lawsuits brought by the same three attorneys 

should substantially belie the sincerity of any attempt to establish jurisdiction.

Mr. Crider must meet, in detail, three criteria: (1) that he has an injury in fact; 

(2) that there is a causal connection between his injury and the conduct complained 

of; and (3) that his injury will be redressed by a favorable judicial decision. Lujan v. 

Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). 

An injury in fact must be “particularized” and must be “concrete.” Spokeo, Inc. 

v. Robins, 578 U.S. 330, 340 (2016). “Particularized” injuries “affect the plaintiff in a 

personal and individual way.” Id. (internal quotation marks omitted). Concrete 

injuries are “physical, monetary, or cognizable intangible harm[s] traditionally 

recognized as providing a basis for a lawsuit in American courts.” TransUnion LLC v. 

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Ramirez, 594 U.S. __, __, 141 S.Ct. 2190, 2206, 210 L.Ed.2d 568 (2021); see also 

Maddox v. Bank of New York Mellon Tr. Co., N.A., 19 F.4th 58, 63-64 (2d Cir. 2021). “An 

uninjured plaintiff who sues seeking to ensure a defendant’s “compliance with 

regulatory law” (and, of course, to obtain some money)” lacks Article III standing. 

TransUnion LLC, 594 U.S. at ___,141 S.Ct. at 2206.

The Fifth Circuit has repeatedly held that Aritcle III standing requires that ADA 

plaintiffs allege “in detail” how the supposed ADA violation will “negatively affect 

their day-to-day lives.” See Deutsch v. Annis Enterprises, Inc., 882 F.3d 169, 174 (5th Cir. 

2018); Frame v. City of Arlington, 657 F.3d 215, 235-36 (5th Cir. 2011) (en banc); Deutsch 

v. Travis Cty. Shoe Hosp., Inc., 721 F. App'x 336, 341 (5th Cir. 2018). 

Mr. Crider’s generalized boilerplate assertions, vague and deficient in any 

factual allegations related to him personally, are insufficient under binding precedent

from the Fifth Circuit.

I. PLAINTIFF CRIDER DOES NOT HAVE STANDING

Mr. Crider makes no attempt to explain how any of the asserted technical 

violations prevented his use of the public accommodation or resulted in a concrete 

personal harm. Mr. Crider does not identify any specific public accommodation he 

was prevented from accessing. His response vaguely states that he did not have “full 

and equal enjoyment of the...services, facilities...or accommodations of any place of 

public accommodation.” Resp. at 2. This is insufficient, and fails, in any way to 

demonstrate a particularized injury in fact, sufficient to accord jurisdiction. Laufer v. 

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Mann Hosp., L.L.C., 996 F.3d 269, 273 (5th Cir. 2021). Accord Laufer v. Looper, 22 F.4th 

871, 877-78 (10th Cir. 2022); Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 

2022).

Mere allegations of non-compliance with certain technical administrative 

recommendations set forth in the Americans with Disabilities Act Accessibility Guidelines

(ADAAG) does not empower Plaintiff or his attorneys to act as a self-appointed 

building inspector. The Fifth Circuit has held that minor deviations from the ADAAG 

technical guidelines standing alone do not give rise to a cause of action under the 

ADA. See Greer v. Richardson Indep. Sch. Dist., 472 F. App'x 287, 295 (5th Cir. 2012). 

While ADAAG technical requirements may be a helpful reference point in evaluating 

barriers to access, a court cannot determine that non-compliance with these technical 

requirements gives rise to an injury in fact or a violation of the ADA.

Moreover, even if Mr. Crider alleged a statutory violation of the ADA, as 

opposed to non-compliance with certain accessibility guidelines, he would still lack 

Article III standing. If the ADA labeled all violations of that act and its implementing 

regulations as discrimination — which it does not, see 42 U.S.C. §§ 12112, 12132, 

12182 (defining disability discrimination under the ADA), TransUnion makes clear 

that a statutory violation, however labeled by Congress, is not sufficient for Article III 

standing. TransUnion, 594 U.S. at ___, 141 S.Ct. at 2205.4

4 Allegations of improper signage or a non-compliant ramp, for example, which do not comport with 

the guidelines, as provided and without more, are insufficient to survive a motion to dismiss. See

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To state a claim under 

Title III, the plaintiff must not only allege the existence of an architectural barrier, he must also 

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II. ENTREPRENEURIAL ADA LITIGATION DOES NOT HAVE 

STANDING

Mr. Crider makes no valid claim of a substantial risk of imminent future injury 

. See Crawford v. Hinds County Bd. of Supervisors, 1 F.4th 371, 375 (5th Cir. 2021). The 

“some day” intentions of a “tester,” who now claims to want to be a “regular patron,” 

are insufficient to grant Article III standing. Strojnik v. Teof Hotel GP, No. 3:19-CV01336-E, 2020 WL 5211063, 2020 U.S. Dist. LEXIS 158287 (N.D. Tex. Aug. 31, 

2020); Access 4 All, Inc. v. Boardwalk Regency Corp., No. 08-3817, 2010 U.S. Dist. LEXIS 

124625, 2010 WL 4860565 (D.N.J. Nov. 23, 2010) (“An ADA plaintiff who seeks an 

injunction mandating removal of architectural barriers cannot ‘manufacture standing’ 

by simply claiming that he intends to return to the defendant's establishment.”).

The lack of standing is obvious once the 60-plus virtually identical lawsuits all 

filed this year by these attorneys are considered. These virtually identical lawsuits 

utilizing the same cast of plaintiffs in both the Northern and Western Districts of Texas 

are merely vehicles to extort payment. None of these cases demonstrate particularized, 

actual, or imminent injury, but merely the obvious repetition of alleged Americans with 

Disabilities Act Accessibility Guidelines defects without any detail. “A pleading that offers 

‘labels and conclusions’ or ‘a formulaic recitation of the elements’ of a cause of action 

will not do.” Ashcroft, 556 U.S. at 678. 

plausibly allege in detail how that barrier affected him personally. Steger v. Franco, Inc., 228 F.3d 

889, 893 (8th Cir. 2000). See also Mosley v. QuikTrip Corp., No. CV-20-01937-PHX-ROS, 2021 U.S. 

Dist. LEXIS 226239, 2021 WL 5493444 (D. Ariz. Nov. 23, 2021).

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Likewise, the repeated boilerplate description of why removal of the barriers to 

access can be readily achieved adds no useful information. It is a plaintiff’s burden in 

pleading that removal of architectural barriers is readily achievable. Lopez v. Catalina 

Channel Express, Inc., 974 F.3d 1030, 1038 (9th Cir. 2020). Persyn v. Torres, No. SA-11-

CV-0141 FB, 2011 WL 1549203, 2011 U.S. Dist. LEXIS 43828 (W.D. Tex. Apr. 22, 

2011). 

III. CONCLUSION

A “deprivation of a right created by statute must be accompanied by ‘some 

concrete interest that is affected by the deprivation’” Laufer, 996 F.3d at 273. “[T]he 

public interest that private entities comply with the law” cannot “be converted into an 

individual right by a statute that denominates it as such, and that permits all citizens 

(or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to 

sue.” TransUnion, 594 U.S. at ___, 141 S.Ct. at 2206.

These 60 virtually identical cases, with their exorbitant, extortionary, pre-suit 

monetary demands, are a crass and clear attempt at a money grab. The boilerplate 

repetition without personal detail across these suits demonstrate “an uninjured 

plaintiff who sues seeking to ensure a defendant’s “compliance with regulatory law” 

(and, of course, to obtain some money)” TransUnion LLC, 594 U.S. at ___,141 S. Ct. 

at 2206.

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These suits lack Article III standing. Id. Mr. Crider has failed to plead either 

subject matter jurisdiction or a claim for which relief may be granted and his 

Complaint should be dismissed.

WHEREFORE, PREMISES, ARGUMENTS, and AUTHORITIES 

CONSIDERED, Defendant prasy that Plaintiff’s claims for violation of the 

AMERICANS WITH DISABILITIES ACT be dismissed, and that costs and attorneys’ fees 

be assessed against the Plaintiff and his counsel.

DATED: December 22, 2022

Respectfully submitted,

Eliot Shavin 

State Bar No. 18138200

Corinna Chandler

State Bar No. 24061272

CHANDLER & SHAVIN, PLLC

12377 Merit Drive, Suite 880

Dallas, Texas 75251

(214) 522-2010 - Telephone

Shavin@chandlershavin.com

Geoffrey N. Courtney

State Bar No. 00790514

ATTORNEY AT LAW

111 Soledad St., Suite 540

San Antonio, Texas 78205-1531

(210) 227-7121 - Telephone

(210) 227.0732 - Facsimile

GNCourtney@GNCourtney.com

________________________________

GEOFFREY N. COURTNEY

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James C. Harrington

Texas Bar No. 09048500 

5304 Halmark Drive

Austin, TX 78723

(512) 771-1759 - Telephone

jim.harrington.austin@gmail.com

ATTORNEYS FOR DEFENDANT 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 22nd day of December 2022, I electronically 

filed the foregoing with the Clerk of Court using the CM/ECF system which will send 

notification of such filing to the following:

Duncan Strickland 

Counsel for Plaintiff 

State Bar No.: 24072374 

13423 Blanco Road, #936 

San Antonio, TX 78216 

Telephone: (210) 504-7874 

Facsimile: (832) 218-4317 

E-mail: Duncan@StricklandLawFirm.com

and I hereby certify that I have mailed by United States Postal Service the document to the 

following non-CM/ECF participants:

NONE.

 /s/ Geoffrey N. Courtney______________ 

GEOFFREY N. COURTNEY

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