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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 THE COMPLAINT 

I. INTRODUCTION 

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

Portfolio, LLC ("Defendant") as one of over 4001 nearly identical ADA lawsuits filed in 

Illinois, Maryland, New York and elsewhere. Defendant owns and/or operates Extended Stay 

America hotels nationwide. 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 or has any intent to visit 

this state of the hotel. 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 

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

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

 

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

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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”). 

Plaintiff is a resident of Pasco County, Florida. Complaint at ¶ 1. Plaintiff alleges that she 

uses an assistive device (such as a cane) to walk and decided to be a “tester” for purposes of 

ADA compliance. Complaint at ¶ 2. Plaintiff further alleges that she visited certain third party 

websites (not websites that Defendant owns or controls), 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).” 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”). Complaint at ¶ 3, 10. Plaintiff, therefore, seeks attorneys’ fees, costs and injunctive 

relief. Complaint at ¶ 19-20. Critically, Plaintiff never alleged in the Complaint that she 

visited the state of Illinois, the town of Rockford, the Subject Property or that she has any 

plans or intentions of visiting the Subject Property in Illinois. The Complaint does not allege 

that Plaintiff has any reason to travel anywhere in Illinois or any reason to seek lodging 

anywhere in or around Rockford.

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 

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Representatives, 506 F.3d 584, 590 (7th Cir. 2007); see 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.”). 

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 complaint 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 

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“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). 

B. Injunctive Relief Requires Risk Of Immediate Injury 

To have standing to seek injunctive relief 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 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.”). 

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

Plaintiff is a resident of Florida. Complaint at ¶ 1. Defendant owns the Subject Property 

in Glen Burnie, Maryland. Complaint at ¶ 3. There are no facts in the Complaint indicating that 

she has ever traveled to Glen Burnie, Maryland, or anywhere in Maryland or has any plans to do 

so in the future. 

Plaintiff alleges that she is a “tester” for the ADA. 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 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 

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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 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 in 3 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. 

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

to this case by changing little more than the pronouns involved: 

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 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 

 

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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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 Complaint 

should be dismissed by the Court.

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

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Dated: September 17, 2020 Respectfully submitted, 

NEAL, GERBER & EISENBERG LLP 

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 

JEFFER MANGELS BUTLER & MITCHELL LLP 

MARTIN H. ORLICK 

By: /s/ Stuart K. Tubis 

STUART K. TUBIS, ESQ. 

Two Embarcadero Center, Fifth Floor 

San Francisco, CA 94111 

Telephone: 415-398-8080 

Facsimile: 415-398-5584 

skt@jmbm.com 

Attorneys for Defendant ESA P Portfolio, LLC 

Pro Hac Vice Application to be filed 

 

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CERTIFICATE OF SERVICE 

The undersigned hereby declares that on this 17th day of September, 2020, a true and 

accurate copy of the foregoing was served via the court’s Electronic Case Filing system on all 

counsel of record. 

 /s/ Sonya Rosenberg 

 Sonya Rosenberg 

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