UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

DEBORAH LAUFER, Individually, 

Plaintiff, 

vs. 

ESA P PORTFOLIO, LLC, d/b/a 

EXTENDED STAY AMERICA – 

ROCKFORD, A Foreign Limited Liability 

Company, 

Defendant. 

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) Case No. 1:20-cv-04594-MSS 

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT 

I. INTRODUCTION 

Plaintiff Deborah Laufer ("Plaintiff") initiated this case against Defendant ESA P 

Portfolio, LLC d/b/a EXTENDED STAY AMERICA – ROCKFORD ("Defendant") as one of 

over 4001 nearly identical ADA lawsuits filed in Illinois, Maryland, New York and elsewhere. 

Courts have taken notice of Plaintiff filing these identical cases despite lacking subject matter 

jurisdiction and standing. Plaintiff is a resident of Florida and never alleges that she visited the 

state of Illinois, the hotel in question and makes only vague conclusory allegations in the Amended 

Complaint that she intends to visit Illinois some day when the COVID crisis is over. There is no 

concrete harm or risk of immediate future harm.

To satisfy federal pleading requirements, Plaintiff must sufficiently allege facts which, if 

proven true, state a claim upon which relief can be granted. Fed. R. Civ.P. 12(b)(6). Plaintiff has 

1 See Request for Judicial Notice ISO MTD, Exhibit 1. 

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not done so. Accordingly, the Court should grant Defendant’s Motion to Dismiss the Amended 

Complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6). 

II. BACKGROUND 

On August 5, 2020, Plaintiff filed the Complaint against Defendant seeking injunctive 

relief and attorneys’ fees for alleged violations of the Americans with Disabilities Act (“ADA”). 

Defendant owns properties used for hotel businesses nationwide. After Defendant filed a Motion 

to Dismiss the Complaint on September 17, 2020 (Doc # 8, 9), Plaintiff filed an Amended 

Complaint (Doc # 15) adding a new, vague, conclusory paragraph stating that Plaintiff intends to 

“travel throughout the entire State” of Illinois “as soon as the Covid crisis abates.” Amended 

Complaint at ¶ 13. 

Plaintiff alleges that she is a resident of Pasco County, Florida. Amended Complaint at 

¶ 1. Plaintiff uses an assistive device (such as a cane) to walk and decided to be a “tester” for 

purposes of ADA compliance. Amended Complaint at ¶ 2. Plaintiff further alleges that she visited 

certain third party websites (which Defendant does not own, operate or control), such as 

expedia.com and hotels.com, “for the purpose of reviewing and assessing the accessible features 

at the Property and ascertain whether they meet the requirements of 28 C.F.R. Section 36.302(e).” 

Amended Complaint at ¶ 10. Plaintiff found that such third party websites were lacking accessible 

information about the property in question located at 747 North Bell School Road, Rockford, 

Illinois (the “Subject Property”). Amended Complaint at ¶ 10. Plaintiff, therefore, seeks 

attorneys’ fees, costs and injunctive relief. Amended Complaint at ¶ 20-21. Plaintiff attempts to 

cover the clear holes in her original Complaint by adding new, vague allegations about plans to 

travel to Illinois sometime in the future. Critically, however, Plaintiff never alleged in the 

Complaint or Amended Complaint that she has visited the state of Illinois, the town of 

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Rockford, the Subject Property or that she has any specific and concrete plans to visit the 

Subject Property in the future. The Amended Complaint does not allege that Plaintiff has any 

specific reason to travel anywhere in Illinois for any reason or a concrete plan to visit the Subject 

Property in particular, only that Plaintiff plans to visit Illinois after COVID abates.

III. LEGAL ARGUMENT 

A. Courts Must Sua Sponte Assess Standing For Subject Matter Jurisdiction 

“Article III of the Constitution limits the jurisdiction of the federal courts to actual cases 

or controversies.” UAW v. Johnson, 674 F.2d 1195, 1198 (7th Cir. 1982). Accordingly, it is wellsettled that the party asserting federal jurisdiction must "carry the burden of establishing standing” 

as the proper party under Article III. Hinrichs v. Speaker of the House of Representatives, 506 

F.3d 584, 590 (7th Cir. 2007); see also Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012) 

(“Plaintiffs—as the party invoking federal jurisdiction—bear the burden to establish standing.”). 

Moreover, “it has been the virtually universally accepted practice of the federal courts to 

permit any party to challenge or, indeed, to raise sua sponte the subject-matter jurisdiction of the 

court at any time and at any stage of the proceedings." Craig v. Ont. Corp., 543 F.3d 872, 875 

(7th Cir. 2008) (internal citations omitted). Indeed, “the court itself ha[s] a duty to ascertain the 

propriety of its jurisdiction” and “[i]f a federal court doubts its jurisdiction, it should address its 

concerns sua sponte.” Mader v. Motorola, Inc.,1999 U.S. App. LEXIS 7283, at *5 (7th Cir. Apr. 9, 

1999); see also Wellness Int'l Network, Ltd. v. Sharif, 727 F.3d 751, 768 (7th Cir. 2013) (“[I]t is 

true that questions of subject-matter jurisdiction may be raised at any time, as parties cannot 

consent to subject-matter jurisdiction; indeed, such questions must be considered by a court sua 

sponte.”). 

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B. Standing Requires Concrete Harm Among Other Elements 

To establish standing a plaintiff must demonstrate (1) an “injury in fact” that is “concrete 

and particularized” and “actual or imminent, not conjectural or hypothetical,” (2) “a causal 

connection between the injury and the conduct complained of,” and (3) redressability of the injury 

by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–65 (1992). Where “a case 

is at the pleading stage, the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” 

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 

(1975)). 

“For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual 

way.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). To be “concrete” an 

injury “must actually exist”: the injury must be “real” and not “abstract.” Id. Generally, 

“even in the context of a statutory violation,” “a bare procedural violation, divorced from 

any concrete harm,” does not satisfy the injury-in-fact requirement of Article III. Id. at 1549–

50 (emphasis added - holding that the plaintiff could not satisfy the demands of Article III by 

simply alleging that consumer reporting agency disseminated information in violation of the Fair 

Credit Reporting Act of 1970: “[a] violation of” a “procedural requirement[] may result in no 

harm” and not all “inaccuracies cause harm or present any material risk of harm”). A “risk of real 

harm” may “satisfy the requirement of concreteness.” Id. at 1549 (noting statutes where the 

violation of a procedural right would be sufficient because Congress identified harms sufficient to 

constitute injury in fact). Thus, “the critical question for standing purposes is whether the alleged 

violations “entail a degree of risk sufficient to meet the concreteness requirement.’” Crabtree v. 

Experian Info. Sols., Inc., 948 F.3d 872, 877 (7th Cir. 2020) (quoting Spokeo, 136 S. Ct. at 1550). 

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C. Injunctive Relief Requires Risk Of Immediate Injury 

To have standing to seek injunctive relief in particular, Plaintiff “must show that [she is] 

under an actual or imminent threat of suffering a concrete and particularized injury in fact; that 

this injury is fairly traceable to the defendant's conduct; and that it is likely that a favorable judicial 

decision will prevent or redress the injury.” Common Cause Ind. v. Lawson, 937 F.3d 944, 949 

(7th Cir. 2019) (quoting Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009); see also United 

Asset Coverage, Inc. v. Avaya Inc., 409 F. Supp. 2d 1008, 1041 (N.D. Ill. 2006) (“[A] plaintiff's 

entitlement to preliminary injunctive relief requires it, in addition to showing that its harm is 

irreparable, to show that the harm is imminent as well.”). 

D. Plaintiff Here Lacks Standing Because There Is No Concrete Harm 

Plaintiff is a resident of Florida. Amended Complaint at ¶ 1. There are no facts in the 

Complaint indicating that she has ever traveled to Rockford, Illinois, or anywhere in Illinois or has 

any plans to do so in the future. Plaintiff makes only vague allegations hastily included in the 

Amended Complaint that she plans to travel to Illinois sometime in the future. Amended 

Complaint at ¶ 13. 

Furthermore, Plaintiff alleges that she is a “tester” for the ADA. Amended Complaint at ¶ 

2. However, her status as a “tester” is not sufficient to establish subject matter jurisdiction in this 

action. See Griffin v. Dep’t of Labor Fed. Credit Union, 912 F.3d 649, 656 (4th Cir. 2019) (holding 

that a plaintiff who was ineligible to be a member of a credit union failed to establish standing to 

bring an ADA claim concerning its website because tester status “cannot create standing in the 

absence of an otherwise plausible assertion that a return to the website would allow [the plaintiff] 

to avail himself of its services”); see also Carello v. Aurora Policemen Credit Union, 930 F.3d 

830, 833 (7th Cir. 2019) (“[W]hile tester status does not defeat standing, it does not automatically 

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confer it either. A tester must still satisfy the elements of standing, including the injury-in-fact 

requirement.”) (internal quotation citation omitted). 

Multiple courts have taken notice of these types of spam style ADA lawsuits without the 

requisite standing. Such courts have dismissed nearly identical cases or filed orders to show cause 

sua sponte regarding whether standing and subject matter jurisdiction exists. For example, the 

court in Laufer v. Laxmi & Sons, LLC, 1:19-cv-01501-BKS-ML, 2020 U.S. Dist. LEXIS 79545 

(N.D.N.Y. May 6, 2020), involving the same Plaintiff as the case at hand, Laufer, issued a sua 

sponte Memorandum-Decision and Order regarding Plaintiff’s lack of standing, stating “There are 

no facts in the Complaint or Plaintiff’s affidavit indicating that she has ever traveled to Rensselaer, 

New York, or anywhere in New York, or that she has any reason to travel anywhere in New York 

or any reason to seek lodging anywhere in New York.” Id. Doc #15 at p. 7. The court went on to 

say “the Court questions whether the Plaintiff has established standing, in accord with Spokeo, 

Kreisler, and Deeper Life Christian Fellowship, Inc, and thus whether the Court has subject matter 

jurisdiction over this action.” Id. Doc #15 at p. 9. 

Other courts have taken notice of Plaintiff’s abuse of litigation as well. For example, in 

Laufer v. 1110 Western Albany, LLC, Case No. 1:19-cv-01324-BKS-ML, 2020 U.S. Dist. LEXIS 

81128 (N.D.N.Y. May 7, 2020), the Court issued an Order on May 7, 2020 noting that “Plaintiff 

Deborah Laufer, a Florida resident ... has 29, nearly identical, cases pending against different 

defendants in the Northern District of New York.” Id. Doc # 21 at p. 1. The court went on to find 

that “There appears to be a serious question as to whether Plaintiff has established standing, 

in this, or any of her other cases, and thus whether the Court has subject matter jurisdiction over 

these actions.” Id. Doc # 21 at p. 2 (emphasis added). The court then ordered that Plaintiff file 

briefs addressing whether she has standing in that case and 27 other cases filed by Plaintiff Laufer 

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listed in the court’s Exhibit A attached to the Order. Id. Doc # 21 at p. 2. Subsequent to that, the 

case was dismissed due to settlement. Id. Doc # 22, 23. Similarly, the Court here should question 

Plaintiff’s standing, which in fact does not exist. 

In New Jersey, The Hon. Renee Marie Bumb issued an Order to Show Cause applicable to 

three very similar cases also brought by a serial ADA plaintiff residing in Florida alleging 

violations on defendant’s website reservations system. Hernandez v. Caesars License Co., LLC, 

Case No. 1:19-cv-06087-RMB-KMW (USDC DNJ), Doc # 4; Hernandez v. Caesars License Co., 

LLC, Case No. 1:19-cv-06088-RMB-KMW (USDC DNJ), Doc # 4; Hernandez v. Montego Bay 

Resort and Conference Center, Case No. 1:19-cv-06091-RMB-AMD (USDC DNJ), Doc # 4. See 

Request for Judicial Notice ISO MTD, Exhibit 2. The Court’s Order could easily be applied to 

this case: 

An examination of the facts alleged in the complaints leads 

this Court to question whether Plaintiff has established that he 

has suffered an injury in fact. Plaintiff alleges that he “visited the 

Property’s website for the purpose of reviewing an assessing the 

accessible features at the Property in order to ascertain whether it 

meets Plaintiff’s individual disability needs[.]” (Complaints ¶ 30) 

The complaints do not plead how many times Plaintiff visited each 

website. Moreover, while Plaintiff pleads a laundry list of “disability 

accommodations” he was “unable to verify” “whether the Property 

contain[ed],“ (Complaints ¶ 31), the complaints do not even plead 

that Plaintiff, who “resides in Miami, Florida,” (Complaints, ¶ 

1) has any intention of visiting New Jersey, much less the specific 

properties identified in the complaints. Rather, Plaintiff merely 

pleads in conclusory fashion that “Plaintiff intends to revisit 

Defendant’s or Defendant’s third-party agent’s website and/or 

online reservation system in order to test it for compliance with 28 

C.F.R. § 36.302(e)2 and/or otherwise determine if the site provides 

enough information for Plaintiff to determine whether the site comes 

2

 The Court notes that 28 C.F.R. § 36.302(e) (1), which Plaintiff cites in his complaints, does not impose a specific 

duty on places of public accommodation to include descriptions of disability accommodations on their websites. The 

regulation merely requires that a place of public accommodation “[i]dentify and describe accessible features . . . in 

enough detail to permit individuals with disabilities to assess independently whether a given hotel or guest room meets 

his or her accessibility needs.” 28 C.F.R. § 36.302(e) (1) (ii). The regulation is silent as to where or how a place of 

public accommodation must identify and describe its accessible features, and Plaintiff’s complaints are silent in this 

regard. 

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into compliance with the guidelines of the aforementioned law.” 

(Complaints ¶ 39) 

Thus, it does not appear that Plaintiff has pled an injury 

in fact. In this regard, the Court finds this case analogous to Murray 

v. Lifetime Brands, Inc., No. CV 16-5016, 2017 WL 1837855 

(D.N.J. May 8, 2017). In that case, as here, the plaintiff’s claim was 

premised on an “‘unlawful denial of access to information subject 

to disclosure.’” Id. at *3 (quoting In re: Nickelodian Consumer 

Privacy Litig., 827 F.3d 262, 273-74 (3d Cir. 2016)). In Murray, 

Judge Hillman held that the plaintiff had not established an injury in 

fact, explaining, “[c]ritically, what Murray fails to do, however, is 

identify the harm that resulted from allegedly not knowing what she 

asserts the [law] requires [defendant] to tell her.” Id. at *4, 

In this case, too, Plaintiff fails to plead what actual, 

concrete harm he suffered, or will continue to suffer, as a result 

of allegedly being unable to determine whether each property has 

disability accommodations that meet his needs. 

Hernandez v. Caesars License Co., LLC, Case No. 1:19-cv-06087-RMB-KMW (USDC DNJ), 

Doc # 4 at p. 4-5 (emphasis added). The court then ordered that plaintiff show cause “why this 

case should not be dismissed for lack of Article III standing.” Id. at p. 6. The defendant 

subsequently filed a motion to dismiss much like the present motion, and the court issued an 

Order granting defendant’s motion to dismiss for lack of subject matter jurisdiction. 

Hernandez v. Caesars License Co., LLC, Case No. 1:19-cv-06087-RMB-KMW (USDC DNJ), 

Doc # 25. The same thing occurred in the second case, Hernandez v. Caesars License Co., LLC, 

Case No. 1:19-cv-06088-RMB-KMW (USDC DNJ), Doc # 24. In the third case, plaintiff filed a 

notice of voluntary dismissal, presumably acknowledging the lack of standing and jurisdiction. 

Hernandez v. Montego Bay Resort and Conference Center, Case No. 1:19-cv-06091-RMB-AMD 

(USDC DNJ), Doc # 5. Here too, the case lacks subject matter jurisdiction and the Amended 

Complaint should be dismissed by the Court. 

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E. Because Courts Determine Jurisdiction Based On The Original Complaint, 

The Filing Of The Amended Complaint Cannot Cure Defects In The 

Complaint 

“In determining federal court jurisdiction, we look to the original, rather than to the 

amended, complaint. Subject matter jurisdiction must exist as of the time the action is 

commenced.” Morongo Band of Mission Indians v. Cal. State Bd. Equalization, 858 F.2d 1376, 

1380 (9th Cir. 1988). As a result, “[i]f jurisdiction is lacking at the outset, the district court has 

‘no power to do anything with the case except dismiss.” Id. (internal citations omitted). The grant 

of leave to amend is a nullity if jurisdiction was lacking. Id. at 1381. Here, the allegations of the 

Amended Complaint should not be considered in ruling on the instant Motion to Dismiss. 

As the Supreme Court stated, “jurisdiction depending on the condition of the party is 

governed by that condition, as it was at the commencement of the suit.” Conolly v. Taylor, 27 U.S. 

556, 565 (1829). Courts in the Seventh Circuit agree. See e.g., Nuclear Eng'g Co. v. Scott, 660 

F.2d 241, 248 (7th Cir. 1981) (“Jurisdictional questions are answered by reference to the time of 

the filing of an action, and the party asserting jurisdiction bears the burden of establishing its 

existence.”). Here, there was no standing, and thus no jurisdiction, at the time of the filing of the 

case. The Court, therefore, should dismiss the Amended Complaint. 

Further, while the Amended Complaint attempts to plead facts for standing to sue, it does 

not provide any actual evidence necessary to establish standing. As previously set forth in 

Defendant’s Motion to Dismiss Plaintiff’s Complaint, where the moving party makes a factual 

challenge by presenting evidence on a Rule 12(b)(1) motion to dismiss, “the party opposing the 

motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing 

subject matter jurisdiction.” Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004); see also

Purely Driven Prods., LLC v. Chillovino, LLC, 171 F. Supp. 3d 1016, 1018 (C.D. Cal. 2016) (“In 

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reviewing factual attacks, ‘[t]he court need not presume the truthfulness of the plaintiff's 

allegations.’ Id. Plaintiff bears the burden of establishing federal subject matter jurisdiction”); see 

also Whitaker v. LSB Prop. Mgmt., LLC, 2020 U.S. Dist. LEXIS 108874, at *11 (C.D. Cal. June 

22, 2020) (“Although Plaintiff acknowledged the Ninth Circuit has held that minimal allegations 

that might survive a facial attack may not survive a factual attack...he made no effort to make any 

additional showing. Therefore, Plaintiff fails to satisfy his burden of establishing subject 

matter jurisdiction.”) (emphasis added). 

Here, the Amended Complaint does not meet Plaintiff’s burden to prove facts necessary to 

establish jurisdiction, and Plaintiff’s desperate and incomplete attempts to fix defects in the case 

through a few vaguely worded allegations are not sufficient. Plainly, Plaintiff lacks standing to 

bring this case and accordingly, the Amended Complaint must be dismissed. 

IV. CONCLUSION 

Plaintiff lacks standing in this case, and it is respectfully submitted that the Court 

accordingly lacks subject matter jurisdiction. This issue has been thoroughly explored by other 

courts, including in dozens of cases involving this very Plaintiff, resulting in orders and dismissals 

for lack of jurisdiction. Thus, Defendant respectfully requests that the Court dismiss Plaintiff’s 

Amended Complaint with prejudice for lack of subject matter jurisdiction as well. 

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 Dated: October 29, 2020 Respectfully submitted, 

ESA P PORTFOLIO, L.L.C. D/B/A EXTENDED

STAY AMERICA – ROCKFORD

By: /s/ Sonya Rosenberg 

SONYA ROSENBERG, ESQ. 

IL Bar No.: 6293663 

2 N. LaSalle, Suite 1700 

Chicago, Illinois 60602 

(312) 269-8000 

srosenberg@nge.com 

 -andBy: /s/ Stuart K. Tubis 

STUART K. TUBIS, ESQ. (Pro Hac Vice 

Application to be filed)

Two Embarcadero Center, Fifth Floor 

San Francisco, CA 94111 

Telephone: 415-398-8080 

Facsimile: 415-398-5584 

skt@jmbm.com 

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CERTIFICATE OF SERVICE 

The undersigned hereby declares that on this 29th day of October, 2020, a true and accurate 

copy of the foregoing Memorandum of Points and Authorities in Support of Defendant’s 

Motion to Dismiss Plaintiff’s Amended Complaint was served via the court’s Electronic Case 

Filing system on all counsel of record. 

 /s/ Sonya Rosenberg

Sonya Rosenberg 

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