UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

DEBORAH LAUFER, Individually,

Plaintiff,

v.

ESA P PORTFOLIO L.L.C. d/b/a

EXTENDED STAY AMERICA -

ROCKFORD, a Foreign Limited Liability

Company,

Defendant.

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Case No. 1:20-cv-04594

PLAINTIFF’S RESPONSE TO DEFENDANT’S REPLY

Plaintiff, by and through undersigned counsel, hereby response to the supplemental

authority filed by Defendant at DE 21 in its Reply.

I. Laufer v. Mann Hospitality Is Fundamentally Flawed

Defendant’s reliance on Laufer v. Mann Hospitality, LLC, 1:20-cv-620-JRN, DE 15

(W.D. Tex. 9/30/20), is unavailing because the Mann decision is fundamentally flawed in every

respect. Mann was appealed to the United States Court Of Appeals For the Fifth Circuit, no

20–50858, and Plaintiff is confident that the Mann decision will be reversed. 

A. Mann Improperly Denied Standing

Although the Mann decision is 10 pages long, it dedicates only a small portion of its

opinion to the basis of its holding. Much of the opinion is dedicated to the standards under Fed.

R. Civ. P. 12 and restating and describing the arguments of the plaintiff and defendant. Indeed,

its actual rationale and holding does not begin until p. 8, where it states that Plaintiff lives too far

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away from Defendant’s physical hotel and does not provide any evidence suggesting any future

plans to visit that hotel or the area surrounding the hotel, or that it did not believe she would visit

the area.

First, when it held that the Plaintiff had presented no evidence, it apparently overlooked

her affidavit indicating her intent to travel to Texas. In the alternative, it made an improper

credibility determination in violation of the standards governing Fed. R. 12(b)(1), 12(b)(6) and

56. Where issues of fact are central to both subject matter jurisdiction and a claim on the merits,

a district court must assume jurisdiction and proceed to the merits. Montez v. Dep't of the Navy,

392 F.3d 147, 149-50 (5th Cir. 2004). “In circumstances where ‘the defendant's challenge to the

court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper

course of action for the district court . . . is to find that jurisdiction exists and deal with the

objection as a direct attack on the merits of the plaintiff's case’ under either Rule 12(b)(6) or Rule

56.” Id., quoting Williamson v. Tucker, 645 F.2d 404, 415 (5th Cir. 1981). 

The Mann Court ignored these standards.

Second, the Mann Court completely ignored the rules of statutory construction, the plain

and unambiguous language of the statute and regulation, applicable Supreme Court precedent

(including Spokeo, Havens Realty, Akins), the slew of decisions by Circuit Courts around the

country recognizing informational injury, the slew of decisions within the Fifth Circuit

recognizing informational injury, and the overwhelming weight of authority recognizing online

reservation system injury. Despite these authorities being cited in Plaintiff’s brief, the Mann

Court’s opinion does not reflect that the Court ever read or considered them. Indeed, Mann’s

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analysis is completely at odds with these authorities with no explanation or analysis as to why it

departed from or declined to follow them. 

For the reasons cited in Plaintiff’s briefing previously filed in this case, Plaintiff has a

cause of action and suffered injury in fact when she was deprived the information Defendant’s

hotel was legally obligated to provide her. Under ample precedent, nothing additional is required

and a court cannot judicially insert any additional requirements or language into the statute. The

Mann Court violated this principle by adding its own requirement and essentially re-wrote the

statute to suit its preferences. Second, this Court cannot, as did Mann, make a credibility

determination.

With respect to its point that Plaintiff lives too far away from the hotel, the Mann court

relied entirely on cases involving physical property violations, where the plaintiff had

encountered discrimination at the physical property and would only encounter it again by

revisiting the physical property. In this respect, the Mann Court demonstrated a complete

misunderstanding of the nature and locus of an injury involving online reservation or website

discrimination and also overlooked that the entire nature and purpose of hotels is to serve

customers traveling from afar. See, e.g. Camacho v. Vanderbilt Univ., 2019 U.S. Dist. Lexis

209202, *30 (S.D.N.Y. 2019)(cases involving physical property discrimination are inapposite to

website cases); Parks v. Richard, 2020 U.S. Dist. Lexis 86790 *6 (M.D. Fla. 2020)(distance

factor irrelevant because hotels cater to travelers from afar).

The only website case cited by the Mann Court was Rizzi v. Hilton Domestic Operating

Co., Inc., No. CV 18-1127, 2019 WL 5874327 (E.D.N.Y. July 18, 2019) as standing for the point

that a plaintiff did not have standing for website discrimination where he did not intend to visit

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the hotel. That is not what the Rizzi decision stood for. In Rizzi, the plaintiff had visited and sued

over Hilton Hotel corporate websites that contained information relevant to job information,

investment and hotel development: NOT reservations. In other words, the only websites

identified by the plaintiff had nothing to do with reservations. It did not stand for the proposition

described by the Mann Court.

B. Mann Improperly Held That Defendant Was Entitled To Attorney Fees

The Mann Court’s flagrant disregard for the applicable law is further evidenced by its

award of attorney fees to the defendant. In this regard, the defendant had done nothing more than

include a request for attorneys fees as part of its boilerplate request for other relief. The defendant

had not submitted any briefing or authorities explaining its entitlement to attorney fees.

Nonetheless, the Mann Court held that the defendant was entitled to their attorney fee s pursuant

to 28 U.S.C. Section 1919. Again, the Mann Court demonstrated an incapability of

understanding a statute. 

1. 28 U.S.C. Section 1919 Does Not Provide For Attorney Fees

28 U.S.C. Section 1919 provides: “Whenever any action or suit is dismissed in any

district court, the Court of International Trade, or the Court of Federal Claims for want of

jurisdiction, such court may order the payment of just costs.” This section does not provide for an

award of attorney fees. Compare and contrast this section with 42 U.S.C. Section 12205, which

provides:

In any action or administrative proceeding commenced pursuant to this chapter, the court

or agency, in its discretion, may allow the prevailing party, other than the United States, a

reasonable attorney’s fee, including litigation expenses, and costs...

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By inclusion of “attorney’s fees... and costs” in 12205, but referencing only “costs” in

Section 1919, it is clear that Congress intended that Section 1919 to exclude attorney fees.

 "[W]here Congress includes particular language in one section of a statute but omits it in

another section of the same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion."

INS v. Cardoza—Fonseca, 480 U.S. 421, 432 (1987). Indeed, several courts have held that

Section 1919 excludes any entitlement to attorney fees. See Wilkinson v. D.M. Weatherly Co.,

655 F.2d 47, (5th Cir. 1981)(Section 1919 does not allow for attorney fees); Castillo Grand, LLC

v. Sheraton Operating Corp., 719 F.3d 120, 122 (2d Cir. 2013); Deutsch v. Abijaoude, 2017 U.S.

Dist. 31934, **14-15 (W.D. Tex. 2017)(discussing the difference between attorneys fees

awardable pursuant to Section 12205 and costs awardable under Section 1919).

Indeed, “Costs” are expressly defined at 28 U.S.C. Section 1920, and limited to such

things as clerk and marshal fees, transcript printing witness fees, exemplification, docket fees and

compensation of court appointed witnesses. This list does not include any reference to “attorney

fees”.

As such 28 U.S.C. Section 1919 would, at most, entitle Defendant to only costs, and not

attorney fees. Once again, the Mann Court misread the plain and unambiguous words of a

statute and re-wrote its terms and contradicted the binding precedent set forth in its own Circuit.

C. Defendant Is Not Entitled To Attorneys Fees

Defendant argues that it is entitled to its attorney fees pursuant to 42 U.S.C. Section

12205. 

Even if this Court grants dismissal based on jurisdictional grounds, the requirements for

such an award under 42 U.S.C. Section 12205 have not been met.

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First, this Section only provides for an award of fees to the “prevailing party”. The

Supreme Court had defined “prevailing party” in civil rights contexts in Buckhannon Bd. & Care

Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598, 603-04 (2002). 

This requires that such a party had obtained either an enforceable judgment or court ordered

consent decree. Id. Courts have held that dismissal for lack of standing to sue fails to meet this

threshold requirement. See Access 4 All, Inc. v. Partners Of Kings Point, Ltd., 10-80779, DE 91

(S.D. Fla. 3/8/2012), Exhibit A attached hereto, (dismissal for lack of standing does not make

defendant “prevailing party”): National Alliance For Accessibility, Inc. And Denise Payne v.

Bhuna Corp., Case No. 1:11-cv-79, DE 34 (W.D. N.C. April 10, 2012), Exhibit B attached

hereto (same); Jeffrey Joel Judy v. Pingue, Case No. 2:08-cv-859, DE 42, p. 9 fn. 1 (S.D. Oh.

Nov. 25, 2009), Exhibit C attached hereto (denying fees to defendant after dismissing case for

lack of standing). At least one court in this District applied this analogy in holding that dismissal

for lack of standing in an ADA case did not entitle the defendant to attorney fees because it was

not a determination on the merits. Deutsch, 2017 U.S. Dist. Lexis 31934**14-15.

Under Fed. R. Civ. P. 41(b), a dismissal for lack of jurisdiction is NOT an adjudication

on the merits.

Even if Defendant were found to be the “prevailing party” it still is not entitled to fees. In

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978), the Supreme Court held that

for a plaintiff to be liable under this Section, his or her action must have been "'unfounded,

meritless, frivolous or vexatiously brought[]'", or “where the action brought is found to be

unreasonable, frivolous, meritless or vexatious." The Court stated that:

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In applying these criteria, it is important that a district court resist the understandable

temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not

ultimately prevail, his action must have been unreasonable or without foundation. This

kind of hindsight logic could discourage all but the most airtight claims, for seldom can a

prospective plaintiff be sure of ultimate success. No matter how honest one's belief that

he has been the victim of discrimination, no matter how meritorious one's claim may

appear at the outset, the course of litigation is rarely predictable. Decisive facts may not

emerge until discovery or trial. The law may change or clarify in the midst of litigation. 

Even when the law or the facts appear questionable or unfavorable at the outset, a party

may have an entirely reasonable ground for bringing suit.

Id. at 421-22.

"[T]o determine whether a [plaintiff’s] suit is frivolous, a court must ask whether the case

is so lacking in arguable merit as to be groundless or without foundation rather than whether 'the

claim was ultimately successful.'" Stover v. Hattiesburg Pub. Sch. Dist ., 549 F.3d 985, 997-98

(5th Cir. 2008) (citing Jones v. Texas Tech Univ., 656 F.2d 1137, 1145 (5th Cir.1981))

As stated above and as referenced in Plaintiff’s previously filed Brief, Plaintiff has ample

statutory, regulatory and case law in support of her standing. Indeed, the plain language of the

statute and regulation impose a legal obligation on Defendant’s part to provide certain

information about its hotel’s accessibility to the Plaintiff. This is recognized as injury under

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982) and a slew of Circuits1 and numerous courts within this Circuit2, a plaintiff suffers injury

1Numerous Circuit Courts have followed Havens Realty Corp. v. Coleman, 455 U.S. 363

(1982) in recognizing informational injury. Ragin v. Harry Maclowe Real Estate Co., 6 F.3d 898,

904 (2nd Cir. 1993)(black testers had standing to sue over discriminatory advertisement even

though they had no intention of renting apartment); Bensman v. United States Forest Serv., 408

F.3d 945, 955-57 (7th Cir. 2005)(surveying cases and statutes where informational injury is

recognized and actionable); Watts v. Boyd Properties, 758 F.2d 1482 (11th

 Cir. 1985)(tester who

had no intention of renting apartment had standing to sue for receiving misleading information

from defendant about apartment availability); Carter v. Welles-Bowen Realty, Inc. 553 F.3d 979,

989 (6th Cir. 2009)(discussing informational injury); Wilderness Soc’y v. Rey, 622 F.3d 1251,

1258-60 (9th Cir. 2010)(discussing informational injury); Tandy v. City of Wichita, 380 F3d 1277,

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in fact and has a cognizable action if the defendant fails to provide them with information that is

required by law. Therefore, Plaintiff’s claims are not unfounded, meritless, frivolous,

unreasonable or vexatious as required by Christiansburg.

In short, Defendant has established no basis for its entitlement to attorney fees, and the

Mann decision is so fundamentally flawed in every interpretation of the law that it should not be

followed.

II. Conclusion

For the foregoing reasons, the Mann decision is so fundamentally flawed that it should

not be followed.

Respectfully submitted, 

Attorney for Plaintiff:

1290 (10th Cir. 2004)(Title II ADA tester has standing to sue for failure to provide required

information); In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 273-74 (3rd Cir.

2016)(recognizing intangible harm as including unlawful denial of access to information subject

to disclosure). See also Carello v. Aurora Policemen Credit Union, 930 F.3d 830 (7th Cir.

2019)(informational injury occurs when the defendant refuses to provide the plaintiff with

information that a law...entitles him to obtain and review for some substantive purpose.”)

2See 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 Realty 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).

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By: /s/ Kimberly A. Corkill, Esq.

Kimberly A. Corkill, Of Counsel

Thomas B. Bacon, P.A.

7 N. Coyle Street

Pensacola, FL 32502

ph. 850-375-3475

fx 877-828-4446

kimberlyatlaw@gmail.com

Florida Bar Id. No. 84942

Thomas B. Bacon, Esq.

Thomas B. Bacon, P.A. 

644 North Mc Donald St.

Mt. Dora, FL 32757

ph. (850)375-3475

kimberlyatlaw@gmail.com

Florida Bar. Id. No. 139262

CERTIFICATE OF SERVICE

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 this December 7, 2020.

By: /s/ Kimberly A. Corkill, Esq.

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