FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD SKAFF, 

Plaintiff-Appellant, No. 06-55434

v. D.C. No. 

M CV-05-00027-R ERIDIEN NORTH AMERICA BEVERLY

HILLS, LLC, e/s/a Le Meridien, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Argued and Submitted

April 16, 2007—Pasadena, California

Filed November 1, 2007

Before: Jerome Farris and Ronald M. Gould, Circuit Judges,

and Kevin Thomas Duffy,* District Judge.

Per Curiam Opinion;

Dissent by Judge Duffy

*The Honorable Kevin Thomas Duffy, Senior United States District

Judge for the Southern District of New York, sitting by designation. 

14333
COUNSEL

Sidney J. Cohen, Sidney J. Cohen Professional Corporation,

Oakland, California, for plaintiff-appellant Richard Skaff. 

David E. Novitski and E. Todd Chayet, Thelen Reid & Priest

LLP, Los Angeles, California, for defendant-appellee Meridien North America Beverly Hills, LLC. 

OPINION

PER CURIAM: 

We review an order of the district court denying the motion

of Richard Skaff, a disabled individual, for attorneys’ fees and

14336 SKAFF v. MERIDIEN NORTH AMERICA
costs in an action he brought against a hotel pursuant to the

Americans With Disabilities Act (“ADA”) and California

civil rights laws. Because the district court erred by concluding that it had no authority under either the ADA or California

law to award fees and costs after the parties reached a settlement, we vacate the district court’s order and remand the case

with instructions that the district court consider the merits of

Skaff’s motion for fees and costs. 

I

Because the district court concluded that there was no

standing based on the allegations of the complaint as filed, we

recite the facts of this case as Skaff alleged them in his complaint. Skaff is a paraplegic who must use a wheelchair for

mobility. Meridien North America Beverly Hills, LLC operated the Le Meridien hotel (collectively, “Le Meridien” or

“hotel”) in Beverly Hills, California.1 About two weeks before

a visit to Le Meridien, Skaff called the hotel and made a reservation for the night of May 9, 2004. When Skaff made his

reservation, he told the Le Meridien reservation agent that he

used a wheelchair and that he needed an accessible room with

a roll-in shower. Skaff reiterated his need for an accessible

room with a roll-in shower when he checked into Le Meridien

two weeks later. However, Le Meridien assigned Skaff to a

room with a bathtub. Skaff at once told the hotel staff of the

problem, and, after a one-hour delay, Le Meridien provided

Skaff with a room that had a roll-in shower. The roll-in

shower in that room, however, did not have a wall-hung

shower chair. This prevented Skaff from using the shower

because Skaff cannot stand on his own. Skaff reported this

problem to the hotel staff and asked if the hotel had a portable

1Le Meridien has since closed and will reopen under a new name

in early 2008. See Le Meridien at Beverly Hills,

http://www.starwoodhotels.com/lemeridien/property/overview/

announcements.html?propertyID=1907#conditions (last visited July 25,

2007). 

SKAFF v. MERIDIEN NORTH AMERICA 14337
shower chair that he could use. The staff eventually found a

portable shower chair for Skaff, and he was able to take a

shower the following morning. 

In addition to the problems with the shower described

above, paragraph 14 of Skaff’s complaint alleged more generally that “during the course of his stay at the Hotel, Plaintiff

encountered numerous other barriers to disabled access,

including ‘path of travel,’ guestroom, bathroom, telephone,

elevator, and signage barriers to access, all in violation of federal and state law and regulation.” Additionally, paragraph 17

of Skaff’s complaint asserted that “[u]ntil Defendants make

the Hotel and its facilities accessible to and useable by Plaintiff, he is deterred from returning to the Hotel and its facilities.” 

Skaff sought injunctive relief pursuant to Title III of the

ADA and injunctive relief and damages pursuant to California’s state civil rights laws. Skaff also sought attorneys’ fees,

litigation expenses, and costs pursuant to both the ADA and

California law. The parties settled all issues relating to injunctive relief and damages at a settlement conference before a

magistrate judge. However, the parties did not settle the issue

of attorneys’ fees and costs, and, in the parties’ settlement

agreement, Skaff retained the option to file a motion for such

fees and costs if the parties could not further settle the matter.

When the parties could not reach a settlement on fees and

costs, Skaff filed a motion in the district court. 

The district court denied Skaff’s motion for attorneys’ fees

and costs. In its order denying the motion, the district court

made the following findings of fact. First, the district court

found that “[t]he only specific denial of disabled access that

Plaintiff alleged in his complaint was the Defendant’s delay

in providing him a room with a roll-in shower and shower

chair.” The district court determined that “[t]he Defendant

remedied these matters within hours of Plaintiff’s request.”

Also, the district court found that, in his complaint, Skaff “did

14338 SKAFF v. MERIDIEN NORTH AMERICA
not complain of or identify other features of the hotel that he

wanted to use but was denied access to or otherwise prevented

from using.” In addition, the district court noted that Le Meridien “was given neither notice of the violations, as is required

by the ADA, nor the opportunity to remedy them” before

Skaff sued. Finally, the district court found that “[i]n the past

three years, Plaintiff has filed at least 21 lawsuits similar to

the case at bar in California federal courts alone.” 

The district court based its denial of attorneys’ fees on the

following conclusions of law. First, the district court determined that, when Skaff filed his complaint, he did not have

standing to pursue his claims. Because in the district court’s

view the only ADA or state law violations Skaff alleged in his

complaint were the problems with the shower, and because Le

Meridien remedied those problems promptly during Skaff’s

visit, the district court concluded that his complaint did not

allege an “injury in fact.” The district court then concluded

that because Skaff lacked standing from the outset of the case,

the court had no authority to award fees, notwithstanding the

settlement agreement. Additionally, the district court determined that Skaff was not entitled to attorneys’ fees under California state law because he did not attempt to settle his

dispute with Le Meridien before filing suit, citing the California Supreme Court’s decision in Graham v. DaimlerChrysler

Corp., 101 P.3d 140 (Cal. 2004). Skaff appeals the district

court’s order denying his motion for an award of attorneys’

fees, litigation expenses, and costs.

II

We review the district court’s findings of fact for clear

error. San Diego County Gun Rights Comm. v. Reno, 98 F.3d

1121, 1124 (9th Cir. 1996). We review for abuse of discretion

the district court’s decision to deny a motion for attorneys’

fees. Labotest, Inc. v. Bonta, 297 F.3d 892, 894 (9th Cir.

2002). A district court abuses its discretion when it denies

attorneys’ fees based on an inaccurate view of the law. Entm’t

SKAFF v. MERIDIEN NORTH AMERICA 14339
Research Group, Inc. v. Genesis Creative Group, Inc., 122

F.3d 1211, 1216-17 (9th Cir. 1997). We review de novo any

questions of law underlying the district court’s decision to

deny fees, including the question of whether a party had

standing to pursue its claim. Hartman v. Summers, 120 F.3d

157, 159 (9th Cir. 1997). The district court’s interpretation

and construction of the ADA and the California civil rights

laws are also questions of law that we review de novo. Soltani

v. W. & So. Life Ins. Co., 258 F.3d 1038, 1042 (9th Cir.

2001). 

III

We begin with the unassailable premise that “standing is an

essential and unchanging part of the case-or-controversy

requirement of Article III.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). Constitutional standing has three

elements. First, the plaintiff must have suffered an “injury in

fact” that is concrete, particularized, and actual or imminent.

Second, there must be a causal link between the injury and the

conduct of which the plaintiff complains. Third, it must be

likely that a favorable decision will redress the plaintiff’s

injury. Id. at 560-61. In this case, the district court concluded

that Skaff did not have standing because his complaint did not

allege an injury in fact. 

We must follow the rule that if a plaintiff does not allege

standing in its complaint, we have no jurisdiction to hear the

case. Bernhardt v. County of Los Angeles, 279 F.3d 862, 868

(9th Cir. 2002). A court that lacks jurisdiction at the outset of

a case lacks the authority to award attorneys’ fees. Branson

v. Nott, 62 F.3d 287, 292-93 (9th Cir. 1995); Smith v. Brady,

972 F.2d 1095, 1097 (9th Cir. 1992); Latch v. United States,

842 F.2d 1031, 1033-34 (9th Cir. 1988).2 Although the district

2Because, in the district court’s view, Skaff’s complaint did not adequately allege injury giving rise to his standing to sue, the district court

concluded that it lacked jurisdiction from the outset of the case and thus

14340 SKAFF v. MERIDIEN NORTH AMERICA
court correctly identified the above rule, it erred in concluding

that Skaff had no standing because of his failure to allege

injury. 

[1] Our case law provides guidance on how to determine

whether an ADA plaintiff has suffered an injury in fact sufficient to give that plaintiff standing and to give us jurisdiction.

In Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133,

1138-39 (9th Cir. 2002), we held that a plaintiff has standing

to challenge barriers in a public accommodation under the

ADA when he has actually encountered those barriers. Pickern further held that a plaintiff may challenge barriers not personally encountered if those barriers have deterred the

plaintiff from patronizing the public accommodation. The key

problem with the district court’s ruling here is that the district

court was wrong in stating that Skaff had not alleged any

problem other than the quickly-remedied shower deficiencies

and in thus concluding that Skaff had not alleged an injury in

fact. To the contrary, Skaff had explicitly alleged that he personally encountered other barriers to access, and that was sufficient to allege an injury in fact.3

did not have authority to award attorneys’ fees. Ordinarily, the appropriate

disposition of a motion for attorneys’ fees when the court lacked jurisdiction from the outset of an action is not denial of the motion, as the district

court did here, but dismissal of the motion for lack of jurisdiction. In re

Knight, 207 F.3d 1115, 1117 (9th Cir. 2000); Branson, 62 F.3d at 292-93.

3The dissent’s contention that our reasoning would allow individuals

with disabilities to bring ADA claims without having even entered the

building or having any knowledge of violations is simply incorrect. If

Skaff’s complaint had just asserted general categories of violations without attesting to Skaff’s personal knowledge of or experience with those

violations, then no injury in fact would have been pled under the standard

established in Pickern. However, paragraph 14 of Skaff’s complaint

alleged that he personally encountered several types of access barriers during his stay at the hotel, and paragraph 17 stated that he would be deterred

from returning to the hotel until those violations were corrected. Skaff’s

complaint therefore articulated the elements of injury required to prove

Article III standing at the pleadings stage. 

SKAFF v. MERIDIEN NORTH AMERICA 14341
The existence of standing turns on the facts as they existed

at the time the plaintiff filed the complaint.4 Lujan, 504 U.S.

at 569 n.4. Though the party invoking our jurisdiction bears

the burden of establishing that party’s standing, “[a]t the

pleading stage, general factual allegations of injury resulting

from the defendant’s conduct may suffice.” Id. at 561.

Because the district court based its conclusion that there was

no standing when the initial complaint was filed on the district

court’s assessment of the language of the complaint,5 we look

4Thus, the fact that Le Meridien has closed since Skaff’s visit does not

affect our analysis of whether Skaff pled that he had standing to pursue

his claims. 

5

In its initial “Findings of Fact” numbers 1-3, the district court recited:

“1. The only specific denial of disabled access that Plaintiff alleged in his

complaint was the Defendant’s delay in providing him a room with a rollin shower and shower chair. 2. The Defendant remedied those matters

within hours of Plaintiff’s request. 3. At the time, Plaintiff did not complain of or identify other features of the hotel that he wanted to use but

was denied access to or otherwise prevented from using.” In its “Conclusions of Law” numbers 2-5, the district court held: “2. A party invoking

federal jurisdiction bears the burden of establishing its standing to bring

suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). To do so,

the plaintiff must demonstrate an injury in fact that is concrete and particularized and actual or imminent as opposed to conjectural or hypothetical.

Id. at 560-61. Standing must exist at the time the action is filed and cannot

be established by showing later actions of post-filing intent. Id. at 569-70

n.4. 3. In light of the above findings of fact, Plaintiff suffered no injury

at the hands of the Defendant that would support a claim under the ADA

or state law. 4. The alleged ADA and California Civil Code violations that

Plaintiff identified only after the case had progressed, his consultant had

visited the site, and settlement negotiations were underway do not retroactively give rise to an injury in fact. 5. Because Plaintiff lacks standing, this

Court has no authority to award attorneys’ fees. Smith v. Brady, 972 F.2d

1095, 1097 (9th Cir. 1992); Latch v. United States, 842 F.2d 1031, 1033-

34 (9th Cir. 1988).” 

Thus it is clear beyond doubt from the district court’s reasoning in its

decision that the district court did not think the complaint alleged any

“specific denial of disabled access” beyond the shower problem, which

was remedied, and that standing had to be determined as of the time of the

complaint. However, as noted above, the complaint did allege generally

14342 SKAFF v. MERIDIEN NORTH AMERICA
to Skaff’s complaint to determine whether he had standing,

accepting as true all of the complaint’s material allegations.

See Bernhardt, 279 F.3d at 867.6

[2] Federal Rule of Civil Procedure 8(a)(1)-(2) requires

only that a complaint contain “a short and plain statement of

the grounds upon which the court’s jurisdiction depends” and

“a short and plain statement of the claim showing that the

pleader is entitled to relief.” When enacted, Rule 8 eliminated

the archaic system of fact pleading found in the state codes of

pleading applied by the federal courts under the 1872 Conformity Act. Today, “[t]he only function left to be performed by

the pleadings alone is that of notice.” 5 Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1202,

at 89 (3d ed. 2004); see Erickson v. Pardus, 127 S. Ct. 2197,

that plaintiff had encountered various obstacles to his access, and whether

those general allegations are sufficient to show injury for standing purposes takes our analysis, we think inescapably, to an assessment of the

requirements of notice pleading under Federal Rule of Civil Procedure 8.

Hence we disagree with our dissenting colleague who argues that this case

has nothing to do with pleading, and instead analyzes the record in terms

of the summary judgment standard. An analysis of these proceedings from

the standpoint of summary judgment is not, in our view, supported by the

record, for the district court’s findings of fact and conclusions of law show

no suggestion that the court was making a decision on the merits by application of the summary judgment standard. To the contrary the district

court lucidly, though we conclude incorrectly, explained its view that no

injury had been pleaded in the complaint beyond the shower problem that

was promptly remedied. 

6The dissent argues that the rule of Bernhardt is inapplicable because

the parties engaged in some informal discovery, and the district court

reviewed the file in camera. The dissent argues that the district court’s ruling that there was no standing and hence no jurisdiction over the attorney’s fees issue is “akin to a motion for summary judgment rather than a

motion to dismiss.” However, as we explain herein, our reading of the district court’s decision shows that the district court was making an assessment of standing based on the allegations of the complaint, and this

inescapably raises the issue of whether the complaint was pleaded adequately to show injury. 

SKAFF v. MERIDIEN NORTH AMERICA 14343
2200 (2007). Rule 8’s concluding admonishment that “[a]ll

pleadings shall be so construed as to do substantial justice”

confirms the liberality with which we should judge whether

a complaint gives the defendant sufficient notice of the

court’s jurisdiction. Fed. R. Civ. P. 8(f). 

Le Meridien argues, and the district court agreed, that the

only denial of access that Skaff alleged in his complaint was

Le Meridien’s delay in providing him with a roll-in shower

and shower chair. Because Le Meridien remedied these problems during Skaff’s visit, Le Meridien maintains, and the district court agreed, that Skaff had not suffered an injury in fact

at the time he filed his complaint. 

[3] We agree that the initial mistake in assigning a room to

Skaff with a bathtub rather than a roll-in shower caused no

cognizable damage because it was immediately corrected by

reassignment to a room with a roll-in shower as had been

requested. Similarly, the initial absence of a shower chair was

promptly corrected, and Skaff had a chair he could use in the

roll-in shower by the next morning. Skaff suffered no cognizable injury concerning the shower because Le Meridien

promptly corrected its errors. The ancient maxims of de

minimis non curat lex and lex non curat de minimis teach that

the law cares not about trifles. 1 Alexander M. Burrill, A New

Law Dictionary and Glossary 334 (Lawbook Exchange, Ltd.

1998) (1st ed. 1850) (reciting the maxim of de minimis non

curat lex, translated as “[t]he law does not care for, or take

notice of trifling matters”); 2 Stewart Rapalje & Robert L.

Lawrence, A Dictionary of American and English Law 751

(Lawbook Exchange, Ltd. 1997) (1888) (reciting the maxim

of lex non curat de minimis, translated as “[t]he law cares not

about trifles”); see Jewell v. Parr, (1853) 13 C.B. 909, 916,

138 Eng. Rep. 1460, 1463 (C.P.) (“Applying the maxim de

minimis non curat lex, when we say that there is no evidence

to go to a jury, we do not mean that there is literally none, but

that there is none which ought reasonably to satisfy a jury that

the fact sought to be proved is established.”); Baxter v.

14344 SKAFF v. MERIDIEN NORTH AMERICA
Faulam, (1746) 1 Wils. K.B. 129, 129, 95 Eng. Rep. 532, 532

(K.B.) (holding that an apprentice was not required to pay

taxes on his salary of six pence, noting that “this case falls

under the saying of de minimis non curat lex”); Bright v.

Smith, (1704) 2 Freeman 279, 280, 22 Eng. Rep. 1210, 1210

(Ch.); Wats v. Dix, (1649) 82 Eng. Rep. 647, 647 (K.B.) (discussing counsel’s argument that a lease made at the direction

of a deed in trust was valid because the lease varied only

slightly from the direction in the deed, and “de minimis non

curat lex”); see also Black’s Law Dictionary 464 (8th ed.

2004) (reciting the maxim of de minimis non curat lex, translated as “[t]he law does not concern itself with trifles”). This

principle frequently has been followed by the Supreme Court.

E.g., Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505

U.S. 214, 231 (1992) (stating that “the venerable maxim de

minimis non curat lex (‘the law cares not for trifles’) is part

of the established background of legal principles against

which all enactments are adopted, and which all enactments

(absent contrary indication) are deemed to accept,” collecting

cases); Republic of Arg. v. Weltover, Inc., 504 U.S. 607, 618

(1992). The mere delay during correction of the problem with

the shower is too trifling of an injury to support constitutional

standing. 

[4] However, we hold that, in paragraphs 14 and 17 of his

complaint, Skaff pled injuries that gave him standing to pursue this case.7

 Paragraph 14 discusses Skaff’s encounters with

accessibility barriers, other than the barrier of the inaccessible

showers, at Le Meridien:

7The dissent’s use of an equation drawn from “mathematical logic” adds

nothing to the analysis, because it relies on the conclusion that the only

injury Skaff suffered was the lack of an accessible shower, an injury discounted to 0 because it was so promptly remedied. This formulation simply ignores the allegations in paragraphs 14 and 17 of Skaff’s complaint,

which, while sparse, were adequate to establish injury in fact under the liberal parameters of notice pleading. 

SKAFF v. MERIDIEN NORTH AMERICA 14345
During the course of his stay at the Hotel, Plaintiff

encountered numerous other barriers to disabled

access, including “path of travel,” guestroom, bathroom, telephone, elevator, and signage barriers to

access, all in violation of federal and state law and

regulation[.] The facilities should be brought into

compliance with all applicable code requirements. 

The record does not show that at the time Skaff filed his suit,

Le Meridien had remedied any of the violations Skaff alleged

that he encountered during his visit and identified in paragraph 14. Skaff’s allegations that he encountered the above

barriers, though succinct, gave Le Meridien notice of what

Skaff’s claims were and that he had personally encountered

barriers and thus had standing to pursue their elimination. 

In paragraph 17, Skaff alleged: “Until Defendants make the

Hotel and its facilities accessible to and useable by Plaintiff,

he is deterred from returning to the Hotel and its facilities.”

This allegation of deterrence was also sufficient to give Le

Meridien notice of Skaff’s standing to challenge the barriers

under Pickern. 

[5] In light of the allegations of paragraph 14, the district

court committed clear error in finding that (1) the only denial

of disabled access Skaff alleged in his complaint was the

delay in providing him a room with an accessible shower and

shower chair and (2) at the time Skaff filed his complaint, he

did not complain of or identify other features of the hotel that

he wanted to use but to which he was denied access. As a

matter of law, the allegations in paragraph 14 that Skaff

encountered barriers to access, and the allegation in paragraph

17 that Skaff was deterred by accessibility barriers from visiting Le Meridien, gave Le Meridien notice of the injury Skaff

suffered and, at the pleading stage, established Skaff’s standing to sue for violations of the ADA. 

In view of our colleague’s dissent, it may be useful to

explain our view of where and how we part company.

14346 SKAFF v. MERIDIEN NORTH AMERICA
Although the district court said it would review the whole file

before ruling on the motion for attorneys’ fees, we view the

district court’s reasoning in its findings of fact and conclusions of law, as set out in pertinent part in footnote 5, to

amount to a holding that the initial complaint as pleaded did

not sufficiently allege injury, beyond the shower incident that

was promptly remedied. The district court wholly ignored

paragraphs 14 and 17 of the complaint, to which we attach

some significance. Although our dissenting colleague feels

that the informal discovery and the court’s review of the file

warrant assessing this case under a summary judgment standard, nowhere in the district court’s clear findings of fact and

conclusions of law does the court state, or even hint, that it is

applying a summary judgment standard. Accordingly, we

respectfully but unequivocally disagree with our colleague’s

argument that a summary judgment standard is applicable and

that the allegations of the complaint should not be viewed as

true for purposes of our review. 

In spite of the minimal hurdle of notice imposed by Rule

8, Le Meridien contends that Skaff pled no constitutional

injury because he did not allege the existence of specific

accessibility barriers with sufficient detail. Le Meridien maintains that Skaff inadequately pled his standing because

“[t]here is no evidence in the record that Plaintiff encountered

any of [the] barriers” he identified in his complaint. Le Meridien essentially urges us to require ADA plaintiffs to plead

the existence of accessibility barriers in specific detail and to

support such pleadings with evidence that the plaintiff

encountered those barriers. 

Le Meridien’s argument ignores the purpose of a complaint

under Rule 8—to give the defendant fair notice of the factual

basis of the claim and of the basis for the court’s jurisdiction.

“Specific facts are not necessary . . . .” Erickson, 127 S. Ct.

at 2200. Le Meridien would essentially impose a heightened

pleading standard upon ADA plaintiffs, even though the

Supreme Court has repeatedly instructed us not to impose

SKAFF v. MERIDIEN NORTH AMERICA 14347
such heightened standards in the absence of an explicit

requirement in a statute or federal rule. Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 515 (2002) (rejecting heightened

pleading standard for Title VII employment discrimination

suits); Leatherman v. Tarrant County Narcotics Intelligence

& Coordination Unit, 507 U.S. 163, 164 (1993) (rejecting

heightened pleading standard for § 1983 suits asserting

municipal liability); see Bell Atl. Corp. v. Twombly, 127 S. Ct.

1955, 1973 n.14 (2007); cf. Private Securities Litigation

Reform Act of 1995, Pub. L. No. 104-67, § 101(b), 109 Stat.

737, 747 (imposing heightened pleading standard for securities fraud class actions) (codified at 15 U.S.C. § 78u-4(b)(1)-

(2)); Fed. R. Civ. P. 9(b) (imposing heightened pleading standard for complaints of fraud or mistake). 

Though the jurisdictional allegations in Skaff’s complaint

were succinct, concerns about specificity in a complaint are

normally handled by the array of discovery devices available

to the defendant. In fact, Le Meridien used some of those

devices in this case. Le Meridien attempted to elicit the basis

for paragraph 14 with contention interrogatories pursuant to

Federal Rule of Civil Procedure 33, requiring Skaff to detail

the barriers he personally encountered. Although Le Meridien

complains that Skaff’s interrogatory answers only referred to

the same general allegations in the complaint, Le Meridien

did not move to compel more complete answers. Le Meridien

could have asked Skaff formally what barriers he had encountered, where they were in the hotel, when he encountered

them, what he did about it, whether any person was present

when he encountered the barriers, and, for each barrier, what

damages he claimed to have suffered. If Le Meridien believed

that Skaff gave conclusory answers to interrogatories on this

score, Le Meridien was free to move to compel more complete answers pursuant to Rule 37 in light of what is relevant

during discovery under Rule 26.8 Le Meridien also had the

8

In response to Le Meridien’s interrogatory asking Skaff to

“[s]pecifically identify every barrier to disabled access [he] encountered

14348 SKAFF v. MERIDIEN NORTH AMERICA
option of taking Skaff’s deposition pursuant to Rule 27 and

inquiring on such points, testing his credibility with crossexamination. Le Meridien could also have sent requests for

admission, pursuant to Rule 36, asking, for example, for conclusive admissions that Skaff had not encountered barriers not

identified by him in interrogatories or deposition. In any

event, when notice of a claim is given that satisfies Rule 8,

concerns about specificity in a complaint are properly

addressed through discovery devices under Rules 26, 27, 33,

and 36, and, if applicable, the pre-trial order entered pursuant

to Rule 16. Le Meridien did not use available discovery and

procedural tools that could have compelled specificity.

Accordingly, we conclude that there is no sound basis on

which to override our normal standing and notice pleading

requirements in a quest for more specificity.9 The district

court thus erred in concluding that Skaff’s complaint did not

allege Skaff’s standing to pursue his claims.10

during [his] stay at the hotel,” Skaff identified the lack of a wall-hung

shower chair in the room with a roll-in shower, the lobby bar, the room

thermostat, the room doors, the room closet (including its clothes racks,

its raised floor, and the location of the iron), the guest room’s bathroom

(including its toilet grab bar and towel racks), the public men’s restroom,

the pay phones in the hotel lobby, the elevator’s control buttons, and the

building directory. Skaff also supplied an email he sent Le Meridien less

than one week after his visit. In the email, Skaff provided a detailed

account of his visit to the hotel. 

9

If it develops that discovery shows that a party did not have a goodfaith basis for the general factual allegations made in a complaint, then

that party will be subject to sanctions under the normal standards. See

Molski v. Evergreen Dynasty Corp., No. 05-56452, 2007 WL 2458547 at

*14 and n.8 (9th Cir. Aug. 31, 2007) (per curiam). Moreover, if there is

a persistent pattern of unfounded allegations, in an appropriate case a litigant or his or her counsel may be subjected to the rigors of a pre-filing

order. See id.

10In reaching the conclusion that the allegations of the complaint were

sufficient to show Skaff’s injury and standing, we express no opinion on

whether Skaff was entitled to an award of attorneys’ fees. We hold only

that because Skaff had standing, the district court should have considered

his motion for attorneys’ fees on the merits. We need not decide whether

SKAFF v. MERIDIEN NORTH AMERICA 14349
IV

[6] In addition to concluding that Skaff could not seek

attorneys’ fees under the ADA or California law because he

lacked standing, the district court also held that Skaff could

not seek attorneys’ fees under California law because he did

not attempt to settle his dispute with Le Meridien prior to filing suit. Section 1021.5 of the California Code of Civil Procedure permits an award of attorneys’ fees to a “successful

party” in an “action which has resulted in the enforcement of

an important right affecting the public interest.” 

The district court cited the California Supreme Court’s

decision in Graham v. DaimlerChrysler Corp., 101 P.3d 140

(Cal. 2004), for the proposition that California law required

Skaff to attempt settlement before filing suit in order to

recover attorneys’ fees pursuant to section 1021.5. Graham

was a case in which the plaintiff sought attorneys’ fees pursuant to section 1021.5 under the “catalyst” theory. The catalyst

theory defines who is a “successful party” in cases in which

“litigation does not result in a judicial resolution.”

11 Id. at 144.

an award of fees in any particular amount would have been unjust under

the circumstances of the case, or whether it would have been an abuse of

discretion for the district court to deny fees in their entirety or to limit fees

to an amount substantially less than those claimed. Those issues are only

properly reached after the district court, with cognizance of standing, has

made a ruling on attorneys’ fees. 

11Under the catalyst theory, a party is “successful,” even if the litigation

does not result in a judicially-sanctioned change in the parties’ legal relationship, when the defendant voluntarily changes its behavior because of,

and in the manner sought by, the litigation. Graham, 101 P.3d at 144. 

In Buckhannon Board & Care Home, Inc. v. West Virginia Department

of Health & Human Resources, 532 U.S. 598, 600 (2001), the United

States Supreme Court rejected the catalyst theory as a means to recover

fees as a “prevailing party” under the ADA and other federal fee-shifting

statutes. See 42 U.S.C. § 12205 (ADA fee-shifting provision, providing

that the court “may allow the prevailing party, other than the United

14350 SKAFF v. MERIDIEN NORTH AMERICA
However, because Skaff’s litigation resulted in a judicial resolution, the catalyst theory does not apply in this case. Specifically, the district court dismissed Skaff’s case and explicitly

retained jurisdiction to enforce the settlement agreement. 

[7] Because Skaff did not need to satisfy the conditions set

forth in Graham, we conclude that he was a “successful

party” in this case. The California Supreme Court has “taken

a broad, pragmatic view of what constitutes a ‘successful

party.’ ” Id. at 147; see also County of Colusa v. Cal. Wildlife

Conservation Bd., 145 Cal. App. 4th 637, 649 (2006). The

court defines the term “successful party” in section 1021.5 to

mean “the party to the litigation that achieves its objectives.”

Graham, 101 P.3d at 151. Under California law, “[i]t is undisputed that relief obtained through a settlement may qualify a

plaintiff as the prevailing party.” Lyons v. Chinese Hosp.

Ass’n, 136 Cal. App. 4th 1331, 1345 (2006). 

[8] Skaff’s litigation achieved its objective of obtaining

injunctive relief to make Le Meridien accessible. Pursuant to

the settlement agreement, Le Meridien agreed to remedy

sixty-three of the sixty-nine instances of noncompliance with

States, a reasonable attorney’s fee, including litigation expenses[ ] and

costs”). 

In Graham, the California Supreme Court endorsed the catalyst theory

as a means for a plaintiff to show that it was a “successful party” under

section 1021.5, but imposed two additional requirements on plaintiffs

seeking fees under the catalyst theory. First, the plaintiff’s suit must have

had some merit, and, second, the plaintiff must have engaged in a reasonable attempt to settle the dispute before filing litigation. Graham, 101 P.3d

at 144; see also Tipton-Whittingham v. City of Los Angeles, 101 P.3d 174,

177 (Cal. 2004) (“In order to obtain attorney fees without . . . a judicially

recognized change in the legal relationship between the parties, a plaintiff

must establish that (1) the lawsuit was a catalyst motivating the defendants

to provide the primary relief sought; (2) that the lawsuit had merit and

achieved its catalytic effect by threat of victory, not by dint of nuisance

and threat of expense, as elaborated in Graham; and, (3) that the plaintiffs

reasonably attempted to settle the litigation prior to filing the lawsuit.”).

SKAFF v. MERIDIEN NORTH AMERICA 14351
federal and state accessibility laws that had been identified by

the consultant hired by Skaff. Skaff also obtained $15,000 in

damages through the settlement agreement. The settlement

agreement and the district court’s order dismissing the case

provided that the district court would retain jurisdiction to

enforce the agreement. The judicially-sanctioned and courtenforceable settlement agreement in this case renders Skaff a

“successful party.”

12 Because Skaff did not make use of the

catalyst theory, California law did not require him to make a

reasonable attempt to settle before filing suit. The district

court erred in concluding that Skaff was not entitled to attorneys’ fees under California law because he did not attempt a

pre-suit settlement. 

V

In its order denying Skaff’s motion for attorneys’ fees, the

district court also stated that the ADA required Skaff to give

Le Meridien notice of the violations he intended to challenge

in his lawsuit, and that Skaff never gave such notice.

Although the district court’s order did not explicitly indicate

the significance of the fact that Skaff did not give pre-suit

notice, the district court, which made a factual finding on the

lack of pre-suit notice, apparently viewed pre-suit notice as a

prerequisite to recovering attorneys’ fees under the ADA. Cf.

Doran v. Del Taco, Inc., 373 F. Supp. 2d 1028, 1033 (C.D.

Cal. 2005) (requiring, in ADA cases, a pre-suit warning to the

defendant and a reasonable opportunity to cure the violation

as a prerequisite to the plaintiff’s recovery of attorneys’ fees),

12Skaff is also a prevailing party under the ADA pursuant to Buckhannon, which held that “court-ordered consent decrees create the ‘material

alteration of the legal relationship of the parties’ necessary to permit an

award of attorney’s fees.” Buckhannon, 532 U.S. at 604 (quoting Tex.

State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93

(1989)). Likewise, in Barrios v. California Interscholastic Federation, 277

F.3d 1128, 1134 (9th Cir. 2002), we held that “[u]nder applicable Ninth

Circuit law, a plaintiff ‘prevails’ when he or she enters into a legally

enforceable settlement agreement against the defendant.” 

14352 SKAFF v. MERIDIEN NORTH AMERICA
vacated and remanded, No. 05-55942, 2007 WL 1492921

(9th Cir. May 21, 2007). For the reasons that follow, however,

we hold that the ADA contains no such notice requirement,

and we decline to imply one. 

[9] The text of the ADA contains no pre-suit notice requirement. If Congress believes it is preferable as a matter of policy to require plaintiffs to give notice to defendants before

filing an ADA suit, it is free to amend the Act. Congress must

surely be aware of the arguments in favor of a pre-suit notice

requirement, as bills requiring notification have been introduced with no success in the last four Congresses. See H.R.

2804, 109th Cong. (2005); H.R. 728, 108th Cong. (2003);

H.R. 914, 107th Cong. (2001); S. 782, 107th Cong. (2001);

H.R. 3590, 106th Cong. (2000); S. 3122, 106th Cong. (2000);

see also Samuel R. Bagenstos, The Perversity of Limited Civil

Rights Remedies: The Case of “Abusive” ADA Litigation, 54

U.C.L.A. L. Rev. 1, 16-20 (2006) (discussing and critiquing

the political movement in favor of amending the ADA to

include a notice requirement). Unless and until Congress sees

fit to engraft a notice requirement onto the ADA, we apply the

ADA as written without a pre-filing notice requirement. 

[10] Our analogous precedent also buttresses the conclusion that ADA plaintiffs are not required to provide pre-suit

notice to defendants. In Botosan v. Paul McNally Realty, 216

F.3d 827, 830 (9th Cir. 2000), we considered whether a plaintiff was required to notify the state or local agency charged

with enforcing the applicable state civil rights laws prior to

filing a private lawsuit under Title III of the ADA. The defendants, arguing in favor of a pre-suit notice requirement, suggested that the pre-suit notice requirement explicitly provided

for in Title VII of the Civil Rights Act of 1964 should apply

to suits under the ADA. Id. at 831. Rejecting the defendants’

argument, we instead held that the language of 42 U.S.C.

§ 12188(a)(1), the provision of the ADA that provides a private right of action, was clear and unambiguous and contained

no pre-suit notice requirement. Id. at 832. We noted that while

SKAFF v. MERIDIEN NORTH AMERICA 14353
§ 12188(a)(1) makes no reference to Title VII’s pre-suit

notice requirement, 42 U.S.C. § 2000a-3(c), § 12188(a)(1)

does make reference to 42 U.S.C. § 2000a-3(a), the section of

Title VII that defines the relief available to a private plaintiff.

Botosan, 216 F.3d at 832. We reasoned that, in light of the

ADA’s reference to § 2000a-3(a), if Congress had intended to

impose a pre-suit notice requirement on ADA plaintiffs, it

would have explicitly imposed such a requirement or would

have made explicit reference to Title VII’s pre-suit notice provision. Id. Thus, we held that “[a] plaintiff in a private Title

III action is not required to provide notice to any state or local

agency as a prerequisite to filing suit.” Id. Botosan is instructive, and we hold that the ADA does not require, either

explicitly or by reference to another statute, that a plaintiff

give notice of intention to sue before filing suit as a prerequisite to the recovery of attorneys’ fees and costs.13

13District courts that have engrafted a pre-suit notice requirement onto

the ADA have been motivated by concerns that some plaintiffs’ lawyers

have abused the ADA to obtain “shake down” settlements. In Del Taco,

373 F. Supp. 2d at 1033, the district court wrote that “unscrupulous law

firm[s]” had “distorted” the ADA into a “cynical money-making scheme”

for themselves and the plaintiffs they represent: 

The scheme is simple: An unscrupulous law firm sends a disabled

individual to as many businesses as possible in order to have him

or her aggressively seek out all violations of the ADA. Then,

rather than simply informing a business of the violations and

attempting to remedy the matter through conciliation and voluntary compliance, a lawsuit is filed, requesting damage awards that

could put many of the targeted establishments out of business.

Faced with costly litigation and a potentially drastic judgment

against them, most businesses quickly settle. 

Id. at 1030 (internal quotation marks and citation omitted); see also Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1282 (M.D. Fla. 2004)

(“The current ADA lawsuit binge is . . . essentially driven by economics

—that is, the economics of attorney’s fees.”). 

However, a district court faced with litigation in which a plaintiff and

his attorneys are “requesting damage awards that could put . . . the targeted establishments out of business,” Del Taco, 373 F. Supp. 2d at 1030,

14354 SKAFF v. MERIDIEN NORTH AMERICA
VI

[11] In summary, we hold that Skaff adequately pled that

he had standing to pursue his suit against Le Meridien. We

also hold that California law did not in this case require Skaff

to make a pre-suit attempt to settle in order to seek attorneys’

fees under section 1021.5 of the California Code of Civil Procedure. Finally, we hold that the ADA requires neither that

plaintiffs give defendants pre-suit notice that they intend to

sue, nor that plaintiffs give defendants an opportunity to cure

the alleged violation or violations before filing suit as a prerequisite to recovering attorneys’ fees. The district court erred

when it denied Skaff’s motion for attorneys’ fees and costs on

the above grounds. The district court should have considered

Skaff’s motion for attorneys’ fees and costs on the merits. The

district court had discretion whether to award fees to Skaff as

a prevailing party. We will review a future determination

awarding or rejecting any fees or costs for abuse of discretion.

We vacate the order of the district court denying Skaff’s

motion, and we remand the case so that the district court can

consider the merits of Skaff’s motion. Each party shall bear

its own costs. 

VACATED AND REMANDED.

has at its disposal appropriate tools to protect its own and the public’s

interest, in that if allegations are unfounded, sanctions can be awarded or

pre-filing orders can be imposed. See Molski, op. at 37 n.7. Conversely,

if damage allegations are founded on true facts, then a party should not be

faulted for seeking damages and the attorneys’ fees the ADA expressly

permits the party to pursue. 

Congress and the state legislatures have available means to study if

there is litigation abuse and to consider whether the law should be modified. Congress has provided us with supplemental jurisdiction over state

law claims that are part of the same case as ADA claims. See 28 U.S.C.

§ 1367(a). If Congress concludes that the damages available under state

law are creating abuse in the federal courts, it can limit the remedies available. 

SKAFF v. MERIDIEN NORTH AMERICA 14355
DUFFY, District Judge, dissenting: 

I respectfully dissent. 

The question posed by this case before the court does not

involve interpretations of the canons of construction for

pleadings. The discussion of the required contents of pleadings in ADA cases in the majority opinion is mere dicta—but,

like most dicta, it can be interpreted to obtain a result far from

the intent of its author.1

The majority cites Bernhardt v. County of Los Angeles, 279

F.3d 862, 868 (9th Cir. 2002) for the proposition that we must

accept as true all of the complaint’s material allegations.

However, a review of the well-developed record indicates that

the parties conducted what appears to be a full mutual discovery of the facts, and that the case was dismissed by the district

court in response to an application for attorneys’ fees after a

settlement had been reached. In Bernhardt, discovery had yet

to be completed; the merits had yet to be disposed of. Unlike

here, in Bernhardt the district court was forced to limit its

inquiry regarding the presence of standing to the four corners

of the complaint. 

In this case, the scope of the district court’s probe was not

so limited. During the scheduled hearing on the motion for

attorney’s fees, the district court ordered that Skaff submit his

entire case file to the court for an in camera review. In its

Order Denying Plaintiff’s Motion for An Award of Attorney’s

Fees (the “Order”), the court stated that it came to its conclusion “[a]fter considering all the papers filed in connection

1Under the reasoning of the majority opinion, any person with a claimed

disability can bring an action against a building for ADA violations without having even entered the building or having any knowledge of violations. The plaintiff merely could plead the violations by categories already

recognized in ADA cases in the hope that an “expert” could identify some

violations during discovery. 

14356 SKAFF v. MERIDIEN NORTH AMERICA
with the motion, oral argument from counsel, and all matters

presented . . . .” The court specifically referred to postcomplaint activity: “Plaintiff did not identify any specific violations of the Americans with Disabilities Act [the “ADA”] or

California Civil Code until after (1) the case had progressed;

(2) his lawyer’s consultant had thoroughly inspected the hotel

and charged a fee of over $10,000.00 for doing so; and (3)

settlement negotiations were underway.” Order at ¶ 4.

Because this case progressed well beyond the pleading stage

prior to settlement and the district court relied on subsequently discovered facts in coming to its conclusion, we were

not required to assume the veracity of all statements contained

in the complaint. See, e.g., Good Luck Nursing Home, Inc. v.

Harris, 636 F.2d 572, 579 n.6 (D.C. Cir. 1980) (“Because the

[ ] suit was dismissed with prejudice pursuant to a settlement,

we do not assume that the facts alleged in the [ ] complaint

are true.”). 

The majority misses the mark by solely looking to the complaint to determine whether standing existed and “accept[ing]

as true all of the complaint’s material allegations.” Opinion at

14343. Regardless of my differing opinion from the majority,

whether the general language of paragraph 14 of the complaint established an injury for the purposes of constitutional

standing is completely irrelevant to this case. Neither party

made a motion addressed to the pleadings or for summary

judgment, but the presence of a developed record suggests

that the dismissal was more akin to a motion for summary

judgment rather than a motion to dismiss. Looking at the

record as a whole, it can be said with certainty that the general

allegations made in the complaint could not be substantiated

by Skaff. “Although at the pleading stage general factual allegations of injury resulting from the defendant’s conduct may

suffice to establish standing, at the summary judgment stage

they are not.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

561 (1992); Hubbard v. 7-Eleven, 433 F. Supp. 2d at 1134,

1141 (S.D. Cal. 2006). 

SKAFF v. MERIDIEN NORTH AMERICA 14357
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). As the party invoking federal jurisdiction, it is the

plaintiff who bears the burden of proof and persuasion as to

the existence of standing. Lujan, 504 U.S. at 561; Hubbard,

433 F. Supp. 2d at 561. Skaff has fallen far short of meeting

his burden. The majority suggests that because in its opinion

the “district court’s findings of facts and conclusions of law

show no suggestion that the court was making a decision on

the merits by application of the summary judgment standard,”

Opinion at 14342, n.5, our hands are tied and that we, too,

must disregard the record in this case. Even if the district

court did so err, the majority’s opinion perpetuates this mistake. This court has an independent obligation to determine

whether we have jurisdiction, and whether the district court

had jurisdiction below. Latch v. United States, 842 F.2d 1031

(9th Cir. 1988) (citing Bender v. Williamsport Area School

District, 475 U.S. 534, 541 (1986)) (holding that courts have

an “obligation to ‘satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under

review[.]’ ”).2

Just as the outcome of this case does not turn on the niceties of pleading, nor does it involve the rights of a disabled

person suing for injury sustained because of violations of the

ADA. The case before us was settled by the parties. The

plaintiff received $15,000, and the defendant agreed to correct

some conditions pointed to by plaintiff’s expert as being vio2

In its Order Denying Plaintiff’s Motion for Attorney’s Fees, the district

court correctly referred to Smith v. Brady, 972 F.2d 1095, 1097 (9th Cir.

1992) and Latch v. United States, 842 F.2d 1031, 1033-34 (9th Cir. 1988)

in holding that a court does not even have the authority to award attorneys’ fees to a plaintiff who lacked standing. The Smith and Latch courts

held this to be so even when, as here, the case has been effectively closed

by virtue of a settlement. 

14358 SKAFF v. MERIDIEN NORTH AMERICA
lative of the ADA. The settlement agreement closed out all

issues, save whether the plaintiff’s counsel was entitled to

attorney’s fees from the defendant and, if so, the appropriate

amount. Neither the district court nor this court has been called to rule upon the fairness or the wisdom of the settlement

agreement. 

This case does, however, involve the right of an attorney to

be paid $118,000 in “attorney’s fees” in connection with the

institution and conduct of the instant case, particularly in light

of the fairly nominal result. Even if we were to assume that

the sum was reasonable, we must still determine whether the

district court properly held that Skaff lacked standing at the

outset of the case, taking into account all information available to it at the time it rendered its decision. The parties knew

the facts involved and conveyed them to the district judge,

who made specific factual findings when he rendered his

decision. My review of the record indicates that the facts are

as follows: 

Skaff, a disabled person who requires the use of a wheelchair and has filed over twenty lawsuits pursuant to the ADA

and related California laws in the federal court system in California, alleges that he visited Le Meridien on May 9, 2004

and was delayed in taking a shower because he was given a

room without a roll-in shower or a wall-hung shower chair.

He concedes that after complaining to hotel staff he was

accommodated that evening and took a shower the following

morning. After Skaff checked out of the hotel, he again

voiced his dissatisfaction to hotel staff about his experience

with the shower via e-mail, and provided vague, unsubstantiated allegations of various other barriers throughout the hotel.3

Skaff filed his complaint on January 13, 2005, and there

3

In this e-mail dated May 15, 2004, Appellant noted that there were

“[n]umerous other state and federal access code/regulatory violations,” but

that he would not “go into detail here.” 

SKAFF v. MERIDIEN NORTH AMERICA 14359
was no shortage of detail regarding his claims pertaining to

his lack of access to the roll-in shower and chair. However,

with respect to the multitude of other barriers that Skaff allegedly encountered throughout the course of his stay, his

account is limited to the skeletal, boilerplate paragraph 14:

“[d]uring the course of his stay at the Hotel, Plaintiff encountered numerous other barriers to disabled persons, including

‘path of travel,’ and guest room, bathroom, telephone, elevator, and signage barriers to access, all in violation of federal

and state law and regulation.” Skaff’s amorphous allegations

did not give details as to how these supposed violations

affected him or any specific hotel feature to which he was

denied access, or how their removal was “readily achievable”

as required by the ADA. 42 U.S.C. §§ 12181(9), 12182(b)(2).

After Skaff filed the complaint, Le Meridien attempted to

procure as much information regarding the allegations as possible through discovery. Skaff, strategically it seems, refused

to identify or provide specifics as to the barriers at the hotel,

which prompted Le Meridien to serve Skaff with interrogatories. Skaff’s responses again were vague and did not identify

any specific violations of the ADA or similar California statutes.4

 Le Meridien attempted to commence settlement discussions in April of 2005, but Skaff refused to do so until Le

Meridien consented to an inspection of the hotel by his consultant. Le Meridien conceded, and the consultant identified

69 items he believed to be in violation of ADA guidelines or

California state regulations, most of which were in rooms that

had not been occupied by Skaff or even alluded to in his complaint or interrogatory responses. Skaff never amended the

complaint to reflect the alleged violations identified by his

4With respect to these additional barriers, Skaff’s interrogatory

responses state: “Plaintiff identifies the following: lobby bar, room thermostat, room doors, room closet (clothes racks, raised floor, iron), guest

bathroom (grab bar dimensions and distance, towel racks), public men’s

room, lobby pay phones, elevator (control buttons), and building directory.” 

14360 SKAFF v. MERIDIEN NORTH AMERICA
consultant or to provide any greater details regarding his initial allegations. The parties reached their settlement in October of 2005.5

When Appellant first went to the offices of his attorney to

discuss his case, the starting point of the litigation clearly

involved solely questions of the roll-in shower and fixed

shower seat. We know from the majority opinion that, in the

circumstances of this case, such a delay in providing these

items does not give rise to an “injury” sufficient to give plaintiff standing to start a lawsuit. As an officer of the court, the

plaintiff’s attorney should have told plaintiff that he lacked

the requisite injury and standing to maintain this action.6 To

the contrary, counsel drafted a complaint with no want for

detail regarding the specifics of the shower incident in addition to inserting a boilerplate recitation of categories in which

other violations might have existed. The plaintiff conveniently

refused to answer interrogatories as to the particulars of the

violations in such categories until after counsel was able to

obtain an expert’s opinion as to possible violations and his

counsel had built up a considerable amount of attorney’s fees,

but even these did not form the basis for any assertion of

injury by Skaff. Appellant, in his mere recitation of categories

of potential injuries, has not shown us that there were any bar5Despite the efforts taken by Le Meridien to procure information from

Skaff, the majority faults the hotel for its failure to move to compel more

complete answers or to “ask[ ] Skaff formally what barriers he had

encountered, where they were in the hotel, when he encountered them,

what he did about it, whether any person was present when he encountered

the barriers, and, for each barrier, what damages he claimed to have suffered.” Opinion at 14348. The majority’s insistence that Le Meridien have

used “available discovery and procedural tools that could have compelled

specificity” ignores the facts that: (1) it was not Meridien’s burden to

establish jurisdiction; (2) the attorneys’ fees required to implement such

“procedural tools” would potentially have had to be paid by Le Meridien

alone; and (3) regardless of the merits, it was in Le Meridien’s interest to

settle the claim as early as possible to avoid additional litigation costs. 

6

See Molski v. Evergreen Dynasty Corp., No. 05-56452, 2007 WL

2458547 at * 13 (9th Cir. Aug. 31, 2007). 

SKAFF v. MERIDIEN NORTH AMERICA 14361
riers to access that he either personally encountered or specifically knew about such that he would have been deterred from

visiting Le Meridien in the future. 

A plaintiff’s standing to sue is an indispensable Constitutional requirement; “the threshold question in every federal

case, determining the power of the court to entertain the suit.”

Warth v. Seldin, 422 U.S. 490, 502 (1975). To establish standing, Appellant must demonstrate that: (i) he suffered an injury

in fact; (ii) the injury in question is traceable to the Appellee’s

challenged conduct; and (iii) the injury can be redressed by a

favorable outcome. Lujan, 504 U.S. at 561. Standing is determined at the time of the lawsuit’s commencement, and we

must consider the facts as they existed at that time the complaint was filed, with the effect of subsequent events generally

analyzed under mootness principles. Id. at 569 n.4.7 The elements of standing are not mere pleading requirements, but

rather must be supported by sufficient evidence. Piney Run

Preservation Ass’n v. County Com’rs of Carroll County, MD,

268 F.3d 255, 252 (4th Cir. 2001). 

To establish that the plaintiff suffered an injury in fact, it

must be “concrete and particularized,” which requires that

“the injury must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 561 n.1. The majority agrees that

a slight delay in being able to procure a room with a roll-in

shower and hanging chair, remedied the same night and

months before Skaff filed the complaint, is not a concrete

injury. Upon review of the record, with regards to the additional assertions in the complaint, it is evident that: (1) the

complaint contained mere categories of potential ADA viola7The majority states that “[a]t the time Skaff filed his suit, Le Meridien

had not remedied any of the violations Skaff alleged that he encountered

during his visit and identified in paragraph 14.” Based on the sparse language of paragraph 14 and the plaintiff’s refusal to give specifics about

these categories until after his consultant had filed the report, it remains

a mystery to me how this conclusion was reached. 

14362 SKAFF v. MERIDIEN NORTH AMERICA
tions; (2) Skaff was only able to provide details to these

alleged barriers to access after his expert inspected the premises and identified certain possible ADA violations, many of

which were in rooms or areas of the hotel to which Skaff

never ventured; (3) there are no statements in the appellate or

district court record, by affidavit or otherwise, of Skaff or his

attorneys that Skaff personally encountered or knew about

any of the barriers that were identified by his expert during

inspection of the premises.8

Taking these factors into account, it is evident to me that

Skaff lacked standing at the time the complaint was filed. To

make more clear my point, I will borrow from symbolic syllogisms used in mathematical logic. Let us assume that “A + B

→ C” is used to represent the Rule of Law in ADA cases, and

A is an annoyed disabled person; B is injury; and C is the

right to redress the violations which gave rise to the injury. 

The majority would seek to change this syllogism by

including in C the right to redress the violations which gave

rise to the injury and other incidental violations discovered

before entry of judgment. This case, however, is not the

appropriate one in which to announce such a sweeping

change, for here, B is no injury, which is recognized by the

majority as it states that “Skaff suffered no cognizable injury

concerning the shower because Le Meridien promptly cor8The affidavit of Skaff’s attorney merely incorporates the boilerplate

language of paragraph 14: “During the course of his stay at the Hotel,

Plaintiff encountered numerous barriers to disabled access, including ‘path

of travel,’ guestroom, bathroom, telephone, elevator, and signage barriers

to access, all in violation of federal and state law and regulation.” Declaration of Sidney J. Cohen in Support of Plaintiff’s Motion at ¶ 7. In Skaff’s

declaration, he claims that he had a telephone conversation with one of Le

Meridien’s employees whereby he “identified a multitude of barriers to

access to the Hotel” prior to filing the complaint. Declaration of Richard

Skaff at ¶ 6. He did not put forth that these were the same violations identified by the consultant or provide any other documentation to substantiate

this claim. 

SKAFF v. MERIDIEN NORTH AMERICA 14363
rected its errors. The ancient maxims of de minimis non curat

lex and lex non curat de minimis teach that the law cares not

about trifles.” 

Thus, we do not have the syllogism “A + B → C,” because

B here is zero. In other words, by seeking to extend the Rule

of Law in ADA cases by the use of this decision, the majority

basically rules that any annoyed disabled person has the right

to bring a suit to redress any violation discovered before the

judgment is entered, even if the violation was totally unknown

to and unencountered by the plaintiff. This is a result that flies

in the face of the long standing precedent and should be

barred by the constitutional requirements that the courts rule

only in situations involving “cases or controversies.” Therefore, as I would find that Skaff lacked standing at the time the

complaint was filed, I would affirm the district court and deny

attorney’s fees. I dissent.

14364 SKAFF v. MERIDIEN NORTH AMERICA